Slack et al. v. Bednar

[Indexed as: Slack v. Bednar]

Ontario Reports

Ontario Superior Court of Justice,

Bielby J.

June 17, 2014

120 O.R. (3d) 689 | 2014 ONSC 3672

Case Summary

Limitations — Discoverability — Defendant performing surgery on plaintiff following skiing accident in March 2006 — Defendant telling plaintiff on day after surgery that accident had occurred during surgery which had caused further damage — Plaintiff's counsel obtaining medical records within months of surgery which confirmed that [page690] surgical accident had occurred — Plaintiff suing resort where skiing accident occurred but not commencing action against defendant until March 2011 — Defendant moving successfully for summary judgment dismissing action as statute-barred — Plaintiff not exercising due diligence as he failed to conduct his own investigation into surgical accident and instead relied on medical report produced by ski resort in February 2011.

The plaintiff was injured in a skiing accident in March 2006. After the accident, the defendant performed spinal surgery on the plaintiff. The day after the surgery, the defendant told the plaintiff that an accident had occurred during the surgery which had caused further damage. After the surgery, the plaintiff suffered from weakness to the extremities, bowel and bladder issues, and sexual dysfunction. In September 2006, the plaintiff's solicitors obtained medical records which confirmed that a surgical accident had occurred. The plaintiff commenced an action against the ski resort in July 2007. He and his solicitors discussed suing the defendant. However, no action was commenced against the defendant until March 2011, after the plaintiff's solicitors received a copy of a report prepared by a medical expert retained by the ski resort which indicated that the defendant had used an instrument during the surgery which was too big. In the expert's opinion, such use fell below the appropriate standard of care. The defendant brought a motion for summary judgment dismissing the action as statute-barred.

Held, the motion should be granted.

The plaintiff and his solicitors did not exercise due diligence in pursuing the claim. They knew from the beginning that the defendant had made a mistake and had caused further damage. There was no evidence to suggest that they did anything to investigate the surgical accident. The material ultimately relied on by the ski resort's expert was available to the plaintiff and his solicitors. The claim against the defendant did not become discoverable only when the plaintiff received the expert's report.

Cases referred to

Barry v. Pye, [2014] O.J. No. 1542, 2014 ONSC 1937 (S.C.J.); Brown v. Hudson's Bay Co., [2012] O.J. No. 4408, 2012 ONCA 631; Gluchowski v. Lister, [2014] O.J. No. 2009, 2014 ONSC 2190 (S.C.J.); Guay v. Wong, [2008] A.J. No. 1552, 2008 ABQB 638, 65 C.C.L.T. (3d) 192, 463 A.R. 289, 171 A.C.W.S. (3d) 740; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 B.C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641; Investment Administration Solution Inc. v. Silver Gold Glatt & Grosman LLP (2011), 107 O.R. (3d) 795, [2011] O.J. No. 4665, 2011 ONCA 658, 285 O.A.C. 194; Kobilke v. Jeffries, [2014] O.J. No. 2191, 2014 ONSC 1786 (S.C.J.); Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 296 O.A.C. 352, 13 C.L.R. (4th) 7; Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, 276 O.A.C. 75; Liu v. Silver, [2010] O.J. No. 4636, 2010 ONCA 731, affg (2010), 101 O.R. (3d) 702, [2010] O.J. No. 1608, 2010 ONSC 2218 (S.C.J.); Macksoud (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108, 278 O.A.C. 38, 11 C.P.C. (7th) 190; McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076, 187 D.L.R. (4th) 446, 132 O.A.C. 304, 97 A.C.W.S. (3d) 327 (C.A.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; [page691] Sheikh v. Pinheiro, [2011] O.J. No. 4549, 2011 ONSC 6143 (S.C.J.); White v. Mannen, [2011] O.J. No. 1039, 2011 ONSC 1058, 97 C.C.L.I. (4th) 284 (S.C.J.)

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 5, (1), (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.01(3), 20.02(1), (2), 20.04(2), (2.1)

Authorities referred to

Advocates Quarterly, vol. 42, no. 4 (April 2014)

MOTION for summary judgment dismissing an action.

John K. Downing, for plaintiffs.

David I.W. Hamer and Elder C. Marques, for defendant.

BIELBY J.: —

Introduction

[1] The defendant has brought before the court a motion for summary judgment dismissing the action on the grounds it was commenced after the expiry of the two-year limitation period as prescribed in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[2] On March 18, 2006, the plaintiff Mendal Robert Reid Slack was injured in a skiing accident at the Talisman Mountain Resort Ltd. ("Talisman"). The plaintiff commenced an action against Talisman on July 25, 2007.

[3] The injuries included compressive spinal fractures at T9 and L2 as well as a displaced bursa at L3. As a result, the plaintiff required spinal surgery which was performed by the defendant on March 27, 2006.

Facts

[4] During the operation, the defendant caused a surgical accident. The operative report of the defendant, dated March 27, 2006 (Compendium of the defendant, Tab 4, p. 2), states:

Unfortunately, in the course of this [the surgery] we incurred surgical accident when the large Leksell rongeur slipped off the caudal edge of the L3 lamina and plunged into the thecal sac incurring a long dural tear and avulsing several apparently minor nerve roots. Fortunately, arachnoid disruption was minimal and CSF leak only minor.

[5] The report goes on to say that the surgery continued after the wound caused by the defendant was packed and the dura repaired. [page692]

[6] The plaintiff was discharged from the Hamilton Health Sciences, General Hospital on April 11, 2006 and the discharge summary, dated April 13, 2006 (Compendium of the defendant, Tab 3), notes, on p. 1:

In the operating room on March 27th there was an accidental injury to his cauda equina during the stabilization of the spine. Several nerve roots were disrupted.

[7] Further, on pp. 1 and 2, it is noted:

However, during this operation, a few nerve roots were injured. Following the operation, he [the plaintiff] had weakness and numbness in the legs. He apparently also had paresthesias in the hands. The numbness and weakness in his legs essentially resolved except for some residual hip flexor weakness. The symptoms in his hands completely resolved. He was left with a residual neurogenic bladder which required an intermittent catheterization for drainage.

[8] The day following the surgery, the defendant had a discussion with the plaintiff and the plaintiff was advised of the surgical accident. During the plaintiff's examination for discovery, the plaintiff acknowledged that the defendant explained to him that he (the doctor) had slipped and they weren't sure what damage was done (Compendium of the defendant, Tab 5, Q. 323). The defendant knew that something went wrong (Compendium of the defendant, Tab 5, Q. 334).

[9] The plaintiff also knew that he had some weakness as a result of the surgical accident but did not know what else was caused by the instrument slip (Compendium of the defendant, Tab 5, Q. 337).

[10] The plaintiff heard the phrase "cauda equina" during his conversation with the defendant and understood that it refers to where the nerves end around L1, where the nerves to the lower extremities and to the perineum start branching off. The plaintiff stated that "any injury to the spine isn't good" (Compendium of the defendant, Tab 9, Q. 347-348).

[11] The defendant, during his examination for discovery, was asked about his discussion with the plaintiff the day after the surgery. The defendant said that he would have told the plaintiff that an instrument had slipped, torn dura, damaged some nerve roots and that there might be some neurological sequelae to that nerve root damage (examination for discovery transcript, pp. 20-21, Q. 61-63).

[12] After the surgery, the plaintiff suffered from weakness to the extremities and bowel and bladder issues. When questioned on discovery, he stated that at that point he did not know if the cause of the symptoms was the initial fall or the surgical slip (Compendium of the defendant, Tab 9, Q. 356). [page693]

[13] The plaintiff suffered from weakness down his left side and into his left foot. He referenced his foot as being awkward and attributed it to the surgical slip (Compendium of the defendant, Tab 11, Q. 424).

[14] The plaintiff was discharged from the Hamilton Health Sciences Centre to the Guelph General Hospital. The caregiver's note, in a Hamilton hospital record, states:

Patient is now being repatriated instead of discharge home secondary to requiring assistance and education around bowels (secondary to cauda equina injury) . . . incidental operative cauda equina and dural injury requiring repair." (Motion Record, Vol. II, Tab 2L, p. 454).

[15] The plaintiff was discharged from the Guelph General Hospital to the St. Joseph's Health Centre in Guelph and the discharge summary notes that the plaintiff sustained an intraoperative cauda equina injury (motion record, Vol. II, Tab 2K, pp. 188-89).

[16] In discussing his bowel issues, on his examination for discovery, at questions 389-390, the plaintiff was not sure if these issues related to the ski hill accident or the surgical slip.

[17] Sometime between the date of the ski hill accident and the beginning of May 2006, the plaintiff retained legal counsel. On May 2, 2006, he executed a direction for the release of his medical records to his solicitors, Miller Thomson LLP (Compendium of defendant, Tab 12).

[18] On September 28, 2006, the defendant delivered a medical report to Miller Thomson LLP (Compendium of defendant, Tab 13), and included with the report were copies of the defendant's clinical notes and records. On p. 3 of his report, the defendant states"His operation was in fact complicated by surgical injury to the neurological elements and dural membranes around them, these injuries repaired surgically during the procedure." On p. 5 of the report under the title "Summary and Prognostication", the defendant wrote"Surgery was unfortunately complicated by neurological and dural injury bringing on multiple incomplete neurological deficits which have largely resolved since."

[19] The defendant authored a clinical note on June 29, 2006 (motion record, Vol. II, Tab 2K, p. 181). Therein, the defendant states:

Mr. Slack continues to evolve along as my very real "miracle man", having no major peripheral neurological deficits beside some technical challenges in his surgery. Immediately postop he had elements of bilateral dropfoot with difficulty in controlling bowels and bladder but at three months postop he has evolved to the point where he is voiding independently and using only some stool softeners and stimulants to help with control. His peripheral [page694] neurological deficits are completely resolved though he still feels weak and he does have elements of saddle hypoesthesias, which are progressively resolving.

[20] The plaintiff was examined by the defendant again on January 18, 2007, the results of which are set out in a written report of the defendant bearing the same date (Compendium of the defendant, Tab 14). The defendant noted that the plaintiff, during this examination, had revealed a number of functional complaints that he had been too embarrassed to bring to the defendant's attention previously. He continued to have numbness and tenderness in his left thigh. He had issues in regards to evacuating his bowels as well as some urinary issues. He was also experiencing some sexual dysfunction. As a result, the defendant recommended further tests and investigation.

[21] On discovery, the plaintiff was asked if he considered suing the defendant at the time he started the lawsuit against Talisman (Tab 17, Compendium of the defendant). The plaintiff responded that they discussed the situation. From the context"they" would appear to refer to the plaintiff and his lawyers. The plaintiff further responded by saying that he never wanted to sue the defendant.

[22] On discovery, the plaintiff was questioned in regards to his ongoing issues, including bowel control and evacuation and sexual dysfunction. His answers indicate that he did not know whether these health issues are a result of the accident on the ski hill or the surgical accident.

[23] On May 8, 2009, counsel for the plaintiff delivered a letter to the defendant (motion record, Vol. II, Tab 2K, p. 199). The letter states, at p. 1:

Solicitor for Talisman is taking the position that Mr. Slack's problems involving his bowel and bladder are directly related to the surgical complications. The allegation he is making is that the surgeon was responsible, not the fall. As you are aware, we do not share his view nor have we commenced any legal action as a result of his injuries, however, we need to respond to his allegations.

[24] In the material before me, it is not disclosed when counsel for the plaintiff were made aware of the position being taken by counsel for Talisman in relation to fault and causation.

[25] By stating in the letter that "we do not share his view", suggests that the liability of the defendant had been considered by plaintiff's counsel.

[26] The defendant replied in a letter, dated May 14, 2009 (motion record, Vol. II, Tab 2K, p. 197). Therein, he suggests that the neurological symptoms the plaintiff continues to suffer from [page695] were as a result of the surgery and the slip and they can be expected to be permanent. The defendant concludes:

Would he have been better off had our instruments not slipped that day? I would expect so, but as to how much better it is difficult to quantitate or be definitive about. I am sorry, but that is simply, I think, the best answer I can honestly give you.

[27] It would appear that counsel for Talisman, in taking this position, were relying on the opinion of Dr. Ford, a medical expert retained by them. Dr. Ford prepared a formal report, dated January 21, 2011 (motion record, Vol. II, Tab 2K, p. 152). It is Dr. Ford's opinion that the instrument used by the defendant during surgery, referred to as a Leksell rongeur, was too big and caused the slip. He opined that such use was below the appropriate standard of care.

[28] It is to be noted that Dr. Ford's opinion was based on a file review and that he never examined the plaintiff. Presumably, Dr. Ford reviewed the same file material that was available to the plaintiff.

[29] On March 14, 2011, the plaintiff commenced this action, alleging the defendant was negligent based upon his use of the Leksell rongeur and his allowing it to slip.

Argument and Analysis

[30] Counsel for the defendant submits that there is no genuine issue for trial because the action was commenced after the expiry of the two-year limitation period. It is submitted that the plaintiff and his solicitors did not exercise any due diligence in pursuing the issue of the surgical slip, whether it amounted to a breach of the standard of care and whether it caused or contributed to the injuries and symptoms suffered by the plaintiff.

[31] Counsel for the plaintiff relies on the principle of discoverability and argues that the cause of action against the defendant was not apparent until receipt of the expert report of Dr. Ford. It is also argued that the plaintiff relied on the written notes and reports of the defendant in which it was stated the symptoms related to the slip had, for the most part, resolved.

[32] The defendant brings this motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads as follows:

20.01(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. [page696]

20.02(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

20.02(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties ages to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) in determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence,

2. Evaluating the credibility of a deponent,

3. Drawing any reasonable inference from the evidence.

[33] The leading authority on the current Rule 20 is Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 366 D.L.R. (4th) 641. Therein, at para. 5, the Supreme Court of Canada stated that the rule should be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims.

[34] From para. 66, I quote:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and in a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [page697]

[35] In an article published in the Advocates Quarterly, vol. 42, no. 4 (April 2014), it is suggested that the Hryniak decision stands for the proposition that more cases should be decided by summary judgment, and represents a shift away from the bias favouring trials.

[36] The defendant submits that because there is no genuine issue for trial, the court does not have to use its powers under rule 24.04(2.1).

[37] The defendant submits that the court is permitted to determine by a motion for summary judgment when an action became discoverable for limitation period purposes, and the court may rely on admissions made by a party on their examination for discovery to make any necessary factual findings: Liu v. Silver (2010), 2010 ONSC 2218, 101 O.R. (3d) 702, [2010] O.J. No. 1608 (S.C.J.), at para. 19, affd [2010] O.J. No. 4636, 2010 ONCA 731; Brown v. Hudson's Bay Co., [2010] O.J. No. 4408, 2012 ONCA 631, at para. 8.

[38] The plaintiff submits that the limitation issue will be determined based on what the defendant disclosed to the plaintiff regarding the surgical slip; the expert evidence in regards to the slip; and the appropriate standard of care. It is submitted that these issues cannot be determined without the plaintiff and defendant testifying at trial. Therefore, it is submitted, there is a genuine issue for trial.

[39] The Limitations Act, 2002 sets out the following:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to be an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, the proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

5(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day that act or omission on which the claim is based took place, unless the contrary is proved. [page698]

[40] With respect to s. 5(2), since the defendant performed the surgery on March 27, 2006, it is presumed the claim was discoverable on that date, unless the plaintiff proves otherwise. The burden shifts to the plaintiff.

[41] The plaintiff submits that the claim was not discoverable until after the receipt of Dr. Ford's report on February 1, 2011. Since the claim was commenced on March 14, 2011, the within action was commence within the two-year limitation period.

[42] It is further submitted by the plaintiff that, prior to those dates, it was not apparent that the defendant and his surgical slip were the cause of the symptoms. The defendant's notes suggest that the plaintiff had a very good outcome and any deficits resulting from the surgical slip had resolved. Further, prior to the report of Dr. Ford, there was no evidence regarding the use of the wrong instrument by the defendant during surgery.

[43] The consideration of this motion and whether or not there is a genuine issue requiring a trial comes down to one question: did the plaintiff and his counsel exercise due diligence in pursing this claim?

[44] Within two months of the ski accident the plaintiff had retained counsel. Counsel almost immediately thereafter, pursuant to a direction executed by the plaintiff, requested the defendant's medical records and notes.

[45] Those notes and the hospital records clearly note that there was a surgical complication, that is to say, a surgical accident. The day after surgery, being May 28, 2006, the defendant discussed with the plaintiff what had occurred during surgery.

[46] The plaintiff and his counsel discussed the defendant at the time they were commencing their claim against Talisman. The plaintiff did not want to sue the defendant.

[47] The plaintiff and his counsel knew from the beginning that the defendant had made a mistake and had thereby caused further damage. There is absolutely no evidence to suggest that they did anything to investigate the actions of the defendant and any potential claim in that regard.

[48] The expert report upon which the plaintiff relies was authored by a doctor retained by counsel for Talisman, and was released almost five years after the surgery.

[49] If the plaintiff and his counsel were relying on the initial representations of the defendant, they were relying on the representations of a potential tortfeasor without conducting any independent investigation. While in 2006 the defendant's prognosis was very optimistic, by January 2007, such optimism had waned as a result of better disclosure by the plaintiff to the defendant in regards to the medical problems he was having. [page699]

[50] In Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, at para. 18, the Supreme Court of Canada stated the following:

The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor . . . the cause of action has accrued. Neither the extent of damage nor the type of damage need by known.

[51] Barry v. Pye, [2014] O.J. No. 1542, 2014 ONSC 1937 (S.C.J.) is a decision of Trimble J. of this court. He too had before him a motion for summary judgment seeking a dismissal of the action on the grounds that the limitation period had expired. From his decision, I quote the following, at paras. 42-43, 46, 48-49:

Limitations are not to be ignored. The plaintiff must act with due diligence in acquiring facts in order to be appraised, fully, of the material facts on which the claim can be based, including obtaining a medical opinion, if one is required, so as not to delay the commencement of the limitation period. (See Super v. Southcott 1998 5359 (ON CA), [1998] O.J. No. 2799 (ONCA) para. 21).

The plaintiff need not be certain that the defendant's act or omission caused or contributed to the loss in order for the limitation period to begin to rum. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie ground to infer that the defendant's acts or omissions caused or contributed to the loss.

Once the plaintiff knows that some damage has occurred and had identified the possible tortfeasor and his acts as the potential cause, the cause of action has accrued[.]

It is well accepted that in medical malpractice cases, a plaintiff may know the material facts sufficient to found a cause of action, without medical opinion[.]

In other cases, medical evidence may be necessary to determine the facts.

(Citations omitted)

[52] White v. Mannen, [2011] O.J. No. 1039, 2011 ONSC 1058, 97 C.C.L.I. (4th) 284 (S.C.J.) is a decision of Gordon J. and from para. 25, I quote:

The discoverability principle pertains to the party's knowledge of the material facts upon which the cause of action is based. Often, the focus of the issue is the exercise of due diligence. The question becomes when the party ought to have discovered sufficient facts to commence the claim[.] [page700]

[53] In Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, the court states, at para. 22:

The principle of discoverability provides that "a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. The principle conforms with the generally accepted definition of the term 'cause of action' -- the fact or facts which give a person a right to judicial redress or relief against another": Aquonie v. Galion Solid Waste Material Inc. (1998) 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at p. 170.

[54] Campbell J. in Sheikh v. Pinheiro, [2011] O.J. No. 4549, 2011 ONSC 6143 (S.C.J.) states, at para. 18: "the Court is entitled to assume that the responding party has put forward, its best evidence and that if the case were to go to trial, no additional evidence would be presented". Often this principle if referenced as "putting your best foot forward" or "leading trump": Kobilke v. Jeffries, [2014] O.J. No. 2191, 2014 ONSC 1786 (S.C.J.), at para. 28; Liu (S.C.J.), at para. 13.

[55] At para. 24 of Macksound (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108, the Court of Appeal for Ontario stated in referring to competent counsel"who is expected to take whatever are the necessary steps in a potentially complex medical malpractice case to identify all the possible defendants against whom claims may be made, and within the relevant limitation period".

[56] In Peixeiro, the Supreme Court of Canada stated, at para. 39: "The diligence rationale would not be undermined by the application of the discoverability principle as it still requires reasonable diligence by the plaintiff."

[57] The defendant argues that a medical report is not always necessary and it is enough to have prima facie grounds: Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 13 C.L.R. (4th) 7, at para. 18. It is further submitted that when the report of Dr. Ford was released, the limitation period had already expired and could not be restarted by the delivery of the report: Investment Administration Solution Inc. v. Silver Gold Glatt & Grossman LLP (2011), 107 O.R. (3d) 795, [2011] O.J. No. 4665, 2011 ONCA 658, at para. 15.

[58] In McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076, 187 D.L.R. (4th) 446 (C.A.), at para. 48, it is stated:

In other situations the patient either learns that he or she has suffered an injury, but does not know whether it occurred during or as a result of a medical procedure or learns of an untimely diagnosis of disease. In those situations the patient requires the assistance of experts to advise whether the injury was suffered because of something which occurred during a past medical procedure, or whether there was at some point in time a misdiagnosis of symptoms which could and should have been noted earlier. [page701]

[59] In Gluchowski v. Lister, [2014] O.J. No. 2009, 2014 ONSC 2190 (S.C.J.), Chiappetta J. noted, at para. 58, that an adverse inference does not have to be drawn from the responding party's failure to file an affidavit and that it is appropriate to rely on discovery evidence.

[60] The plaintiff relies on Guay v. Wong, [2008] A.J. No. 1552, 2008 ABQB 638, 463 A.R. 289, para. 81, to argue that mere suspicion is not sufficient to trigger the limitation period and that an expert opinion was needed to connect the injuries to the defendant's conduct.

[61] I accept that proposition but find that the evidence available to the plaintiff was the same material available to Dr. Ford, and raised much more than a suspicion.

[62] The plaintiff also argues that the defendant never admitted negligence or that he used the wrong instrument. In fact, the issue of the use of a wrong instrument did not come up until it was referenced by Dr. Ford. The counter argument to that is, had the plaintiff exercised due diligence and conducted his own investigation, these facts would have likely been apparent. The fact that the defendant did not admit negligence is immaterial.

[63] It is arguable to say that the plaintiff knew by September 28, 2006, when the defendant responded to the direction for records, the identity of the tortfeasor and the material facts upon which to base a cause of action and, as a result, the limitation period was running.

[64] However, I accept that it was difficult for not only the plaintiff but even for the defendant to say what residual symptoms and damage were caused by Talisman and those caused by the surgical accident. A lay person such as the plaintiff would not be expected to know the cause of the surgical slip.

[65] Accordingly, it is reasonable to argue that obtaining an expert medical report is a reasonable step.

[66] However, I cannot accede to the argument of the plaintiff that the claim was not discoverable until he received the Ford report on February 1, 2011. To do so would mean that, knowing of a surgical mistake and that some of the symptoms he was experiencing may be as a result of the mistake, and then to do nothing, amounts to due diligence.

[67] Doing nothing cannot equate to due diligence.

[68] I find that due diligence would require the plaintiff to complete his own investigation into the surgical accident and to obtain his own medical evidence, given what had occurred during surgery and what had been documented. It is not the exercise of due diligence to wait almost five years and then [page702] rely on a medical report produced by a third party before issuing the claim.

[69] The plaintiff did not file any affidavit in response to this motion. While I accept they can rely on the evidence obtained on examination for discovery and documentary evidence filed, there is no evidence to explain why no steps were taken by the plaintiff and his counsel to investigate the causal connection between the surgical accident and the injuries and symptoms.

[70] I find that the plaintiff and his counsel discussed the role of the defendant and chose not to make a claim. This is evident from the discovery transcripts and the May 8, 2009 letter from plaintiff's counsel to the defendant, wherein it was said that they did not agree with the position taken by Talisman. The issue must have been considered.

[71] Further, as noted previously, while the plaintiff knew in May 2009 the position taken by Talisman in relation to the defendant's alleged negligence, we do not know when the plaintiff became aware of Talisman's position.

[72] It cannot be said that the plaintiff has put his "best foot forward" nor has he discharged his onus as set out in s. 5(2) of the Limitations Act, 2002.

Decision

[73] I find that the claim was commenced after the limitation period had expired. Accordingly, there is no actionable claim by the plaintiff against the defendant. There is no genuine issue for trial and this finding represents a just and fair adjudication of the dispute.

[74] This motion for summary judgment was brought in a timely manner and can be considered affordable in that it avoids a costly trial.

[75] This action is therefore dismissed.

Costs

[76] If the parties cannot agree upon cost, I will accept written submissions of no more than five pages in length. The defendant's submissions are to be delivered within 21 days and the plaintiff's ten days thereafter.

Motion granted.

End of Document