CITATION: Hawthorne v. Markham Stouffville Hospital, et al, 2015 ONSC 2294
COURT FILE NO.: CV-12-466363
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHERRIENE HAWTHRONE and POVELL TYRELL
Plaintiffs
– and –
MARKHAM STOUFFVILLE HOSPITAL, YORK CENTRAL HOSPITAL, DR. ADEMILOLA OYENUBI, DR. JOANNE LEWTAS, DR. PARTHA DATTA, DR. ANDREW ARCAND, DR. ARTHUR BOOKMAN, DR. COROLINE GREENEN, DR. SOLOW, DR. A. ING, DR. LOLA, DR. BANSAL, DR. GERNIN, DR. DAVID WEIZMAN, DR. LARRY GROSSMAN, DR. M. SUGAI, DR. ANDRE F. CHAREST, DR. AVIV S. GLADMAN, SR. ALLAN KAGAL, DR. SEYED ALI GHAFOURI, DR. PRINCE S. AUJLA
Defendants
P. Pooran, for the Plaintiffs
M. Jones, for the Defendants
HEARD: March 23, 2015
s.a.Q. akhtar j.
[1] The defendants, a group composed of the physicians involved in the treatment of the plaintiff’s urinary tract infection and the various hospitals at which the plaintiff was treated, move for summary judgment dismissing the plaintiff’s claim. They do so on the basis that her claim falls outside the statutory limitation period prescribed by the Limitations Act, 2002, Chapter 24, Schedule B.
[2] For the reasons set out below, I agree that the plaintiff’s claim is statute-barred and dismiss the action.
1. Background
[3] The plaintiff suffered from a urinary tract infection and was treated by a number of doctors at the Markham Stouffville Hospital, York Central Hospital (now called Mackenzie Health) and Toronto Western Hospital between October, 2009 and March 2010. She alleges that, in the course of her treatment, high doses of steroids were administered to her without consent. The plaintiff complains that, as a result of this non-consensual treatment, she slipped into a coma and suffered loss of both memory and vision. According to her claim, she continues to suffer severe pain and discomfort.
[4] On November 18, 2011, the plaintiff brought an action against Markham Stouffville Hospital, York Central Hospital, Toronto Western Hospital and three unnamed defendants labeled John Doe 1, 2, and 3 (“Action #1”). The individual physicians named as defendants in this action were not named in Action #1. There was no evidence before this court as to what happened to that particular claim. Both parties agreed however that Action #1 was distinct from the current action.
[5] On March 8, 2012, the plaintiff commenced a second action (“Action #2”). In that claim, the plaintiff included as parties the doctors who treated her, the hospitals named in Action #1, and some 35 unnamed defendants, each generically referred to as “John Doe.” In the pleadings associated with Action #2, the plaintiff claimed she was discharged from the hospital on March 8, 2010.[^1] Those pleadings indicated that the plaintiff regained her memory after several months of therapy, and only became aware of the alleged malpractice “when she retrieved her medical records around September 2010.” After commencing Action #2, the plaintiff did not take any steps to advance the matter and on November 1, 2012 the Registrar dismissed the action as abandoned.
[6] On October 26, 2012, some five days before Action #2 was dismissed as abandoned, the plaintiff launched a third action—the current action—by way of Statement of Claim. The current action is substantially the same as Action #2, both in its claims and with respect to the defendants named. The two primary differences between the current action and Action #2 are: the removal of the various “John Does” from the list of defendants, and, most importantly, the assertion by the plaintiff that she discovered her cause of action on September 11, 2011, rather than in September, 2010.
2. The Test for Summary Judgment
[7] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 states that:
(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
[8] Rule 20.04(2.1) outlines the powers of a motion judge hearing a motion for 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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[9] In Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49, the Supreme Court of Canada concluded that there will be “no genuine issue requiring a trial” where the motion judge is able to reach “a fair and just determination on the merits on a motion for summary judgment.”
[10] When faced with a summary judgment motion the court must determine whether the process:
(1) Allows the judge to make the necessary finding of fact,
(2) Allows the judge to apply the law to the facts, and
(3) Is a proportionate, more expeditious and less expensive means to achieve a just result.
[11] Following the roadmap set out in Hyrniak, I am confident that I can render a fair and just determination of the matter on this motion. An examination of the Notice of Action and Statement of Claim filed by the plaintiff leads me to conclude that there is no genuine issue requiring a trial.
3. The Limitation Period
[12] Section 4 of the Limitations Act (“the Act), reads as follows:
- 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.
[13] Section 5 of the Act deals with the date upon which the claim is discovered:
- (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 by 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, a 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).
[14] Significantly, s. 5(2) of the Act provides that a claimant shall be presumed to know of the matters referred to in clause (1)(a) on the day that the act on which the claim is based took place, unless the contrary is proved.
4. Is the Plaintiff’s Claim Statute Barred?
[15] It is worth noting that the manner in which the plaintiff has chosen to proceed was frowned upon by the Court of Appeal in Mintz v. Wallwin, 2009 ONCA 199, 79 C.P.C. (6th) 6. In Mintz, the court concluded that commencing a second action, identical to one that had already been dismissed for delay, was an abuse of process. The court remarked at para. 3 that “in the circumstances before us, it would bring the administration of justice into disrepute to now permit the respondent to proceed with a second identical action.”
[16] The situation in the case at bar is somewhat different in that the current action was launched prior to Action #2’s dismissal. When Action #2 was dismissed as abandoned, however, the plaintiff’s claim with respect to that action ended. It was open to her to seek to have the order of dismissal set aside her action against the defendants renewed. As a result of the plaintiff’s decision to proceed with the current action rather than continue Action #2, the limitation issue must be considered with reference to the commencement of the current proceeding, rather than the commencement of either of the previous actions.
[17] In Action #2, the plaintiff claimed that she became aware of the alleged malpractice “when she retrieved her medical records around September 2010.” Contrary to this claim, as noted above her pleadings in the current action indicate that she first discovered the defendants’ wrongdoing on September 11, 2011. Neither of these pleadings constitute evidence and there is no affidavit provided by the plaintiff to explain the contradiction. This unexplained inconsistency makes the purported discovery date pleaded in the current action unworthy of belief. I therefore reject the plaintiff’s claim that the alleged malpractice was first discovered on September 11, 2011.
[18] If the plaintiff were held to the statutory presumption contained in s. 5(2) of the Act, the date of discovery would be, on a generous reading of the facts, March 10, 2010: the date the plaintiff was discharged from the hospital. Even if I accepted, for the purposes of this motion, the date pleaded in Action #2, i.e. September 2010, as being the accurate date of discovery, the current action would have been launched more than two years after she became aware of her cause of action.
[19] As a result, I find that the current action is statute barred by the provisions of the Act and is accordingly dismissed.
5. Costs
[20] At the conclusion of the hearing, both parties agreed on the quantum of costs. I order that the plaintiff pay the defendants the sum of $1000 within the period of 6 months.
S.A.Q. Akhtar J.
Released: April 13, 2015
CITATION: Hawthorne v. Markham Stouffville Hospital, et al, 2015 ONSC 2294
COURT FILE NO.: CV-12-466363
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHERRIENE HAWTHRONE and POVELL TYRELL
Plaintiffs
– and –
MARKHAM STOUFFVILLE HOSPITAL, YORK CENTRAL HOSPITAL, DR. ADEMILOLA OYENUBI, DR. JOANNE LEWTAS, DR. PARTHA DATTA, DR. ANDREW ARCAND, DR. ARTHUR BOOKMAN, DR. COROLINE GREENEN, DR. SOLOW, DR. A. ING, DR. LOLA, DR. BANSAL, DR. GERNIN, DR. DAVID WEIZMAN, DR. LARRY GROSSMAN, DR. M. SUGAI, DR. ANDRE F. CHAREST, DR. AVIV S. GLADMAN, SR. ALLAN KAGAL, DR. SEYED ALI GHAFOURI, DR. PRINCE S. AUJLA
Defendants
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.
[^1] Both parties agreed that this was the result of a typographical error in the Notice of Action for Action #2, and that the plaintiff was in fact discharged on March 8, 2010 not 2009 as alleged in the pleadings.