SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-353358
MOTION HEARD: February 25 and May 19, 2015

Parties

Re: Frank Colin
Plaintiff

v.

Teng Hin Tan
Defendant

BEFORE: Master Thomas Hawkins

APPEARANCES:
Paul Harte for moving plaintiff
F (905) 754-3793

Cynthia Kuehl and Nadia Marotta for responding proposed defendant
Stephen Lewis
F (416) 867-2433

Jacqueline Cole for responding defendant Teng Hin Tan
F (416) 868-0673

William G. Scott for intervenor Desmond
Dixon (former lawyer for plaintiff)
F (416) 869-0271

REASONS FOR DECISION

Nature of Motion

[1] This is a motion by the plaintiff for leave to bring this motion, if required, and for leave to amend the statement of claim in part by adding Stephen Lewis as a defendant. The present defendant Teng Hin Tan takes no position on the motion. The intervenor Desmond Dixon, a lawyer who formerly represented the plaintiff in this action, supports the motion. However the proposed defendant Stephen Lewis opposes the motion. Counsel for Stephen Lewis submits that he (Stephen Lewis) should not be added as a defendant to this action because the applicable limitation period had already expired when this motion was brought. The plaintiff and the intervenor dispute this.

Leave to Bring Motion

[2] In my view the plaintiff does not require leave to bring this motion despite the fact that this action has already been set down for trial.

[3] Rule 26.01, which governs motions for leave to amend a pleading, expressly provides that such a motion may be brought “at any stage of an action”. The complete text of rule 26.01 is set out below at paragraph [28].

[4] Subrule 5.04(2), which governs motions for leave to add a party to an action, has similar language. This subrule provides in part “At any stage of a proceeding the court may by order add … a party”. The complete text of subrule 5.04(2) is set out below in paragraph [29].

[5] Because rule 26.01 and subrule 5.04(2) both provide that motions to amend a pleading and motions to add a party to a proceeding may be brought at any stage of an action or proceeding, such motions may be brought after an action has been set down for trial. Neither rule 26.01 nor subrule 5.04(2) requires the moving party to obtain the leave of this court to bring the motion.

Background Facts and Events

[6] According to the allegations in the pleadings in this action and the affidavits filed for use on this motion, the following facts and events led to this motion.

[7] For several years the plaintiff Frank Colin suffered from a spinal condition which became progressively worse. Beginning in 2005 and continuing in 2006, he consulted his family physician the defendant Teng Hin Tan (“Doctor Tan”) several times with complaints of numbness in both hands and back pain. Despite Mr. Colin’s worsening symptoms, Dr. Tan did not correctly diagnose Mr. Colin’s condition.

[8] By May 2006 Mr. Colin was unable to walk independently. On May 6, 2006 Mr. Colin was admitted to North York General Hospital where he was correctly diagnosed as suffering from spinal cord compression caused by disc herniation. Mr. Colin was then transferred to Toronto Western Hospital where he ultimately came under the care of the proposed defendant Dr. Stephen Lewis, an orthopaedic surgeon.

[9] Dr. Lewis recommended that Mr. Colin undergo spinal surgery. Mr. Colin agreed to this. On May 14, 2006 Dr. Lewis proceeded to perform a C4-5 posterior cervical decompression and discotomy followed by a C3 to 6 fusion.

[10] Following this surgery, Mr. Colin’s condition continued to worsen to the point where he became an incomplete quadriplegic.

[11] Mr. Colin consulted a law firm which obtained an expert’s report from Dr. Edwin Brankston respecting Mr. Colin’s condition and its cause or causes. Dr. Brankston was of the opinion that Mr. Colin’s acute spinal cord compression syndrome resulting in his incomplete quadriplegia could have been avoided by a more timely diagnosis and surgical intervention. He felt that Dr. Tan’s medical management of Mr. Colin fell below the expected standard. This substandard management of Mr. Colin did not allow for timely neurosurgical intervention to occur.

[12] Mr. Colin commenced this action by statement of claim issued on April 23, 2008 with Dr. Tan as the only defendant. The basis of the action at that time was that Dr. Tan had failed to consider the possibility of disc herniation and spinal cord compression as an explanation for Mr. Colin’s worsening symptoms. As a result, Mr. Colin’s condition was not correctly diagnosed until it was too late for him to benefit from surgical intervention.

[13] The action proceeded through pleadings and examinations for discovery. Mr Colin’s lawyers set this action down for trial on August 30, 2010.

[14] On April 23, 2012 Dr. Tan’s lawyers served an expert’s report prepared by Dr. Eric Duncan, a neurosurgeon. Dr. Duncan was of the opinion that Mr. Colin’s injuries were not the result of a delay in diagnosis by Dr. Tan. Rather, they were caused by an undocumented complication which occurred during the surgery performed by Dr. Lewis.

[15] The Duncan report prompted Sloan Mandel, one of Mr. Colin’s lawyers, to write Dr. Lewis on May 23, 2012 enclosing the Duncan report and asking Dr. Lewis if there was an intra-operative event that caused Mr. Colin’s neurologic deterioration.

[16] Dr. Lewis wrote back to Mr. Mandel on June 22, 2012 advising that he (Dr. Lewis) had reviewed all the medical records at his disposal and that there was no intra-operative event or complication that he was aware of at the time of the surgery.

[17] There are two sets of contemporary notes respecting the surgery which Dr. Lewis performed on Mr. Colin. Neither set of notes mentions any surgical complication.

[18] Dr. Brankston’s report does not mention any surgical complications.

[19] Dr. Lewis now says that right after the operation, he told Mr. Colin that the acute functional deterioration which Mr. Colin complained of following the operation was caused by an intra-operative spinal cord injury. Mr Colin denies that Dr. Lewis told him this. Dr. Lewis’s letter of June 22, 2012 to Mr. Mandel does not mention any such conversation with Mr. Colin.

[20] Mr. Colin says that prior to his seeing the Duncan report no one had ever told him or suggested to him that his condition was the result of Dr. Lewis’ surgery. He continued to see Dr. Lewis throughout his recovery and for years afterwards, believing that Dr. Lewis had done everything he could to help him. Prior to having the Duncan report explained to him, he believed that his condition was caused solely by the delay in getting to surgery.

[21] After the Duncan report was explained to Mr. Colin he says that sought new lawyers. He retained his present law firm on January 16, 2013. Mr. Colin’s present lawyers consulted with an unnamed orthopaedic surgeon who generally agreed with the conclusions of Dr. Duncan and that Dr. Lewis was likely negligent in performing the surgery on Mr. Colin which surgery caused or contributed to Mr. Colin’s injuries.

[22] This orthopaedic opinion and their review of the voluminous file which they received from Mr. Colin’s previous lawyers led Mr. Colin’s present lawyers to conclude that Dr. Lewis is a necessary party to this action. This motion followed.

[23] The original motion record for present motion was initially filed on December 10, 2013 and brought as a regular motion (that is one taking two hours or less to argue). The motion was adjourned several times for various reasons.

[24] The parties later decided that this motion should be argued as a long motion. On July 31, 2014 Team Leader Master McAfee assigned me to hear this motion as a long motion. I then convened a telephone case conference to timetable the delivery of materials for use on this motion. I held the telephone case conference on September 3, 2014 and made a timetable order. I set February 25, 2015 as the hearing date for this motion. This was an all-day special appointment.

[25] Desmond Dixon, one of Mr. Colin’s former lawyers, wished to intervene in this motion. On December 8, 2014 Corbett J. granted Mr. Dixon leave to intervene in this motion.

[26] Argument of this motion began as scheduled on February 25, 2015 and was completed on May 19, 2015. At that time I reserved my decision.

[27] As I have said, rule 26.01 and subrule 5.04(2) apply to this motion.

[28] Rule 26.01 governs motions for leave to amend a pleading. This rule provides as follows.

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[29] Subrule 5.04(2) governs motions for leave to add a party to an action. This subrule provides as follows.

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[30] I have already mentioned that the proposed defendant Dr. Lewis opposes this motion on the ground that the proposed claim against him is barred by provisions of the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B (the “Act”). Counsel for Dr. Lewis relies upon the provisions of sections 1, 4, 5 and 21(1) of the Act. Counsel for Mr. Colin relies upon sections 1, 4, 5 and 15(4)(c) of the Act.

[31] The following is the full text of these provisions of the Act.

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

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 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).

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

15.(4) The limitation period established by subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and

(ii) is not represented by a litigation guardian in relation to the claim;

(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

(5) Subject to section 10, the burden of proving that subsection (4) applies is on the person with the claim.

21. (1) – If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[32] Counsel for the proposed defendant Dr. Lewis submits that the limitation period respecting the proposed claim against him had expired by the time this motion was brought. Counsel for Mr. Colin does not agree. He submits that Mr. Colin neither knew nor ought to have known of the proposed claim against Dr. Lewis until a point in time less than two years before this motion was brought. That point in time was April 23, 2012 when Dr. Tan’s lawyers served the Duncan report on Mr. Colin’s then lawyers and those lawyers explained the Duncan report to him shortly thereafter. That is less than two years before this motion was brought.

[33] There are a number of cases to the effect that for limitation of action purposes, the rights of the parties chrystallise when the motion record for a regular motion to add a party to an action or to add a new cause of action is served on the responding party or proposed new party. A different date for the chrystallisation of rights may be applied if the motion is a long motion and it is necessary to apply to the team leader of masters to have someone assigned to hear the motion on a special appointment day. Here, however, this motion began as a regular motion with a motion record filed on December 10, 2013.

[34] I do not know just when the original motion record for this motion was served on Dr. Lewis because the original motion record with affidavit of service is missing from the court file and cannot be located. However that motion record must have been served on Dr. Lewis before December 10, 2013, the original filing date for the motion record. That is less than two years after April 23, 2012.

[35] The initial motion record of Mr. Colin actually used in argument of this motion had a return date of April 22, 2014 just before the second anniversary of service of the Duncan report on Mr. Colin’s then lawyers. That original motion record with affidavit of service or admission of service is also missing from the court file and cannot be located. However the return date of April 22, 2014 is just less than two years after service of the Duncan report, and the date of service of that motion record must have been earlier than April 22, 2014 and thus definitely less than two years after service of the Duncan report.

[36] There are a number of issues of fact relevant to the question of whether or not this motion is barred by subsection 21(1) of the Act because the limitation period had expired before this motion was brought. The chief issues of fact are the following.

[37] Counsel for Mr. Colin submits that Dr. Lewis’ failure to mention any complication in the two surgical notes on the operation he performed on Mr. Colin on May 14, 2006 is a case of wilful concealment of the surgical complication within the meaning of subsection 15(4)(c)(i) of the Act. Similarly counsel for Mr. Colin submits that Dr. Lewis’ letter of June 22, 2012 to Mr. Mandel stating that he was unaware of any surgical complications is a case of wilfully misleading Mr. Colin’s lawyers within the meaning of subsection 15(4)(c)(ii) of the Act. He submits that this had the effect of postponing the running of the limitation period until service of the Duncan report on Mr. Colin’s then lawyers on April 23, 2012.

[38] Dr. Lewis denies any concealment or misleading conduct. He says that right after the surgery of May 14, 2006, he told Mr. Colin that the acute functional deterioration which Mr. Colin complained of following the operation was caused by an intra-operative spinal cord injury. Mr. Colin denies that Dr. Lewis told him this. Counsel for Mr. Colin says that this evidence of Dr. Lewis is nothing but a recent fabrication.

[39] Master Dash had a similar situation before him in Wong v. Adler, 2004 8228 (ON SC), [2004] O.J. No. 1575. He expressed himself as follows at paragraph 45. (His reference to Zapfe is a reference to Zapfe v. Barnes, 2003 52159 (ON CA), [2003] O.J. No. 2856, a decision of the Court of Appeal for Ontario on a motion to add a defendant.)

What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she did not know of and could not with due diligence have discovered the existence of that defendant? In my view, as is clearly implied in Zapfe, the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitation defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontracted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.

[40] In my view, because of the issues of fact and credibility between Mr. Colin and his lawyers on the one hand and Dr. Lewis on the other hand, which issues I have described above, and which issues affect the question of discoverability, I propose to follow Master Dash’s decision in Wong v. Adler, supra.

Result

[41] An order will therefore issue adding Dr. Lewis as a defendant to this action with leave to plead a limitation of action defence. The plaintiff Mr. Colin is given leave to amend the statement of claim in terms of the underlined fresh as amended statement of claim, being exhibit D(ii) to the affidavit of Maria Damiano sworn October 15, 2013, filed.

Costs

[42] The conflicts between the evidence of Mr. Colin and Dr. Lewis are conflicts which I am unable to resolve on this motion. They will have to be resolved either on a summary judgment motion or at trial. I therefore, reserve the costs of this motion to the judge hearing such a summary judgment motion or to the trial judge, as the case may be.

[43]

__(original signed) _

Date: August 14, 2015
Master Thomas Hawkins