CITATION: Colin v. Tan, 2016 ONSC 1187
COURT FILE NO.: 08-CV-353358PD2
DATE: 20160217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK COLIN
Plaintiff
– and –
TENG HIN TAN
Defendant
Paul Harte for the Plaintiff
Jacqueline Cole for the Defendant
Cynthia B. Kuehl and Nadia Marotta for the Appellant/Proposed Defendant, Dr. Stephen J. Lewis
William Scott for the Intervenor Desmond Dixon
HEARD: February 8, 2016
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This is an appeal from a Master’s Order made in 2015 joining a co-defendant to this medical malpractice litigation about a surgery that occurred in 2006.
[2] In late 2005 and into April 2006, the Plaintiff Frank Colin consulted his family physician Teng Hin Tan on eleven occasions about numbness or pain in his arms and legs, shoulders, and back pain. Mr. Colin alleges that Dr. Tan negligently failed to diagnose his problem. Mr. Colin’s condition deteriorated, and on May 9, 2006, he went to the Emergency Department at North York General Hospital where he was diagnosed with a spinal cord compression from disc herniation. On May 11, 2006, Mr. Colin was transferred to Toronto Western Hospital, where he came under the care of Dr. Stephen J. Lewis, an orthopaedic surgeon specializing in spinal surgery. Dr. Lewis recommended surgery, and on May 14, 2006, he performed a posterior cervical decompression and laminectomy, which is an excision of a spinal bone followed by a spinal fusion. The surgery was a failure in the sense that Mr. Colin emerged from it worse than he had been before the surgery. Unfortunately, he developed Brown-Séquard syndrome and tetraplegia, an incomplete quadriplegia.
[3] About four months after the surgery, Mr. Colin retained Desmond Dixon, an experienced personal injury lawyer, at Thomson Rogers, a leading personal injury law firm. In the course of taking instructions from Mr. Colin, among other things, Mr. Dixon consulted a neurologist and he obtained an expert’s report from Dr. Edwin Brankston, a family physician, who opined that Dr. Tan’s failure to diagnose Mr. Colin’s back problem fell below professional standards and that the tetraplegia would not have occurred but for Dr. Tan’s negligence.
[4] On April 23, 2008, Mr. Colin sued Dr. Tan. Mr. Colin did not sue Dr. Lewis. Four years passed, and on April 23, 2012, Dr. Tan served an expert’s report from Dr. Eric Duncan, a neurosurgeon, who opined that the tetraplegia was caused by an undocumented intraoperative event. What followed were communications between Mr. Colin’s lawyers and Dr. Lewis and then communications between Mr. Colin and his lawyers. After the situation was explained to him, Mr. Colin retained new lawyers in January 2013. Almost another year passed until December 10, 2013, when Mr. Colin’s new lawyers brought a motion to have Dr. Lewis added as a co-defendant.
[5] Scheduling of this motion proved problematic, and it was eventually scheduled as a long motion before Master Hawkins on February 25, 2015. By this time, on consent, Justice Corbett had granted Mr. Dixon intervenor status to appear on the motion. The argument of the motion began on February 25, 2015, but the hearing was not completed. The hearing was adjourned to be resumed and competed on May 19, 2015. Master Hawkins reserved his decision. On August 14, 2015, Master Hawkins released his decision, which was to add Dr. Lewis as a defendant with leave to plead a limitation period defence pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sched. B. (See Colin v. Tan, 2015 ONSC 5126 (Master).)
[6] Now before the court, almost ten years after the surgery, is Dr. Lewis’s appeal of the Master’s decision. His appeal is resisted by Mr. Colin and by Mr. Dixon. Dr. Tan takes no position on the appeal.
[7] For the reasons that follow, I allow the appeal and set aside the Master’s Order. For several reasons, the Master erred in adding Dr. Lewis as a party defendant and in deferring the issue of whether the claim against Dr. Lewis was statute-barred. The claim was statute-barred.
B. FACTUAL AND PROCEDURAL BACKGROUND
[8] In 2005, Mr. Colin was in his late forties suffering from back pain and numbness in his arms and legs. In December 2005, and January, February, March, and April 2006, Mr. Colin attended at Dr. Tan’s office with progressively worsening complaints of numbness in both hands, numbness in his right foot and toes, numbness in his left foot, right shoulder pain, left shoulder pain, cramping in his neck, and back pain radiating into the right leg. Mr. Colin requested but was refused an MRI.
[9] On May 6, 2006, because he was unable to walk properly, Mr. Colin went to the Emergency Department of North York General Hospital. MRI imaging revealed that he had a large central C4 to C5 disc herniation that was severely compressing his spinal cord. Emergency surgery was recommended.
[10] On May 11, 2006, Mr. Colin was transferred to Toronto Western Hospital, where he came under the care of Dr. Lewis, an orthopaedic surgeon specializing in spinal surgery.
[11] Dr. Lewis recommended surgery. Dr. Lewis deposed that he met with Mr. Colin on May 13, 2006 to explain the risks associated with having or not having the surgery and to obtain Mr. Colin’s fully informed consent. Dr. Lewis states in his affidavit as follows:
On or about May 13, 2006, I met with Mr. Colin and explained that there was severe pressure on his spinal cord. I have a specific recollection of my discussion with Mr. Colin that day. I recommended surgery and explained that the goal of surgery was to take pressure off of his spinal cord and prevent any further damage. I made it clear to Mr. Colin, however, that surgery could not reverse the damage already done to his spinal cord; surgery could not return him to a "normal" level of function. I explained the risks associated with surgery, including an intraoperative drop in blood pressure, complications from neck positioning, and direct trauma to the spinal cord. I also explained the advantages of a posterior (back-entry) approach versus an anterior (front-entry) approach.
I specifically explained to Mr. Colin that, given the risks associated with surgery, his condition could be worse post-operatively. However, I also explained that his condition could decline if surgery were not performed. Mr. Colin understood the risks as explained to him and provided his informed consent to surgery.
[12] Mr. Colin signed a consent to the surgery, and on May 14, 2006, Dr. Lewis performed a posterior cervical decompression and laminectomy followed by a spinal fusion. Dr. Lewis’s operative note details no complications during the surgery.
[13] Dr. Lewis’s account of what occurred after the surgery and of a conversation with Mr. Colin on May 15, 2006, the day following the surgery, is set out in paragraphs 9 to 11 of his affidavit as follows:
Unfortunately, when Mr. Colin awoke from surgery, it was apparent that he was weaker than he had been pre-operatively. He had notable left-sided weakness, which was indicative of a Brown- Séquard syndrome (unilateral spinal cord dysfunction).
As a result of Mr. Colin's post-operative presentation, an MRI was arranged. When I saw Mr. Colin after surgery, on or about May 15, 2006, we reviewed his post-operative MRI images and x-rays. I have a specific recollection of my discussion with Mr. Colin that day. We specifically discussed the fact that Mr. Colin was weaker on the left-side after the surgery than he had been before the surgery. Based on our discussion, I believe that, immediately after he awoke from surgery, it was apparent to Mr. Colin that he was weaker than he had been pre-operatively.
I recall specifically telling Mr. Colin that I could not explain the weakness he was experiencing, especially since his spinal cord had been adequately decompressed. I acknowledged that he was weaker following surgery, but I could not point to any intraoperative event as the cause of his Brown-Séquard presentation. I recall that Mr. Colin was upset and disappointed with the outcome of surgery. …
[14] On his cross-examination, Dr. Lewis testified:
Q.40 So tell me exactly, to the best you can, what you told him.
A. I can tell you the theme of it, I could not recall the exact words, because it's ... so much time has passed. But I would have told him, obviously, he is worse from the surgery that we will look to see if there is any ongoing pressure on his spinal cord, and if the spinal cord was damaged further from the surgery, than there wouldn't be anything to do. If there is further compression on his spinal cord, then we can consider more surgery if required.
Q.41 Is there anything else that you can recall, that you would have discussed?
A. He would have asked me why, and I would have explained to the best of my ability.
Q.42 You say he would have asked you why? Why would he have asked you why?
A. Because he would ... I remember I spent a lot of time with him. I can recall spending a lot of time with him.
Q.43 And you recall specifically him asking why?
A. I would have offered explanations why.
Q.44 Do you recall him asking you specifically why he was in the condition he was, postoperatively.
A. I would say, for sure he asked me why. I can't ... if you ask me the exact recollection of his words, I cannot give you.
Q.45 What did you say in response to that?
A. I explained different things that could have happened with the surgery.
Q.46 I want to know exactly what you said.
A. I can't tell you exactly, it's been seven years. But I can tell you what I can recall. Having conversations with him, related to the events in the surgery. What we did in the surgery, exactly how we did the surgery, and what we're going to do for him.
Q.47 You discussed that right after the surgery?
A. It would be the next day.
Q.48 Okay, so right after the surgery, you describe what you did during the surgery?
A. It would have been the next day. Because he had it done at night.
Q.49 You discussed what you did in the surgery, what did you say in that respect?
A. I can't recall exactly. I can just tell you I would have told him exactly what we did in the surgery.
Q.50 I need to know ... obviously for example, you would not use medical terminology I am assuming?
A. No, I used simple words.
Q.51 So I need to understand, the best you can ... and look, doctor, I appreciate this is not an easy process, it is not necessarily an easy task. But I have to ask you to do your best to tell me, to the best of your ability, what specifically you said.
MS. KUEHL: I think he's told you repeatedly that after seven years, he can't tell you specifically what he said. But he can tell you the gist of what he said.
Q.52 Ok, so I need that in as much detail as possible.
A. I would have told him that we would have positioned him. That we did a surgery on his back, of his neck. That we took a bone away from his spinal cord.
Q. 53 Anything else?
A. And that he was worse after surgery. And that I would not know exactly why, because I do not recall any event. But he is obviously worse from the surgery, and there must have been something in the surgery that could have accounted for it. Whether it is the blood pressure, the positioning. Whether it was the technical aspects of the surgery itself. And if there was any ongoing compression, we would have to see that with an MRI.
Q.54 First of all, you would agree that none of that is documented anywhere in your records? In particular, I am talking about, for example, that blood pressure issues could have resulted in his injury. Technical aspects of the surgery could have resulted in his injury. None of that is recorded anywhere in any of your medical records, correct?
A. I do not see it.
Q.59 In your medical records, I'm talking doctor. Either way, the words "intraoperative" or "during surgery" do not appear anywhere in the medical records, in relation to the cause of his postoperative condition. …
Q.65 So just to start afresh, my question is, there's no reference in the medical records, anywhere, that specifically identifies "intraoperative events" as the cause of Mr. Colin's functional deterioration?
A. In the records no, but he was for sure told that during surgery something obviously happened to make him worse. And he was definitely informed of that.
Q.66 You agree, in fact, you had a duty to inform him of that?
A. I informed him for sure of that.
Q.67 You agree you had a duty and obligation to do so, in fact.
A. I did it.
Q.68 I am sorry?
A. I did it.
Q.69 No, I appreciate, but that's not my question. You actually had a duty to do so, correct? You recognize that?
A. Yes.
Q.70 Because you have duty to disclose adverse events.
A. We disclosed them right away.
Q.74 I take it that you will agree that even today, sitting here, you cannot offer an explanation as to how an intraoperative event impacted on his acute functional deterioration, following the operation?
A. Can you repeat the question?
Q.75 I might have it set out a little more. You could not explain the weakness that Mr. Colin was experiencing following his operation, correct?
A. I could explain the weakness. I could not explain an event that caused the weakness.
Q.81 Did you or did you not tell him [“that I could not explain the weakness he was experiencing”]? ...
A. I would explain that he did not ... there was no event that could explain for his problems. I acknowledged that he was weak. I acknowledged that he had a spinal cord injury, I acknowledge, that he was worse after surgery than he was before.
Q.82 So I take it today, still, you cannot explain the weakness he was experiencing?
A. I can explain the weakness he's experienced as a Brown-Séquard syndrome. I cannot explain the cause of his weakness, which we attribute to multiple factors related to his surgery. There was no slip, or any event, that we could account to, during the surgery, to account for his change in symptoms.
Q.83 Ok, so you can't explain how the operation might have contributed to his weakness? You have no information, no ability to do so, even today?
A. Well, the surgery was to, for example, to remove like a rock off a balloon. And we have to peel the rock off the balloon. And so, in doing so, we have to put some pressure on the balloon, to get the rock off. And that is what the procedure is. So, we do that in almost every surgery we do. In his case it resulted in some weakness.
Q.84 As a result of trauma, presumably, caused by instrumentation that you were manipulating at the time of the surgery, right?
A. That is one of the possibilities, yes.
Q.85 And you did not explain that to Mr. Colin?
A. I would have explained that to Mr. Colin. That we have to take the pressure off his spinal cord, and in doing so, he was worse. But I don't remember or recall an event ... during every surgery we do for a decompression, we put pressure on the spinal cord, in order to relieve it.
Q.86 I understand that you could not identify an event. I appreciate that. But I take it you will agree with me that, in fact, you certainly knew that the cause of his weakness was related to something you did during the surgery? I am not saying it was negligent, or otherwise. But it was clear to you that his situation was, in fact, related to an intraoperative event?
A. And that was explained to him. That he had an intraoperative event, and that's why he was worse after surgery than he was before surgery.
Q.87 You agree that is nowhere documented in your records?
A. If someone wakes up weak, and they weren't weak before, and they just had an operation ... the cause and effect would be pretty obvious. And I would explain, and I would have taken …
Q.88 The cause is not in the medical records, correct, doctor?
MS. KUEHL: Let him finish, he said “And I would explain …”
A. I would explain to him that obviously something happened during surgery to make him worse.
Q.89 The cause, the specific explanation, is nowhere in the medical records, correct?
A. Well, there are multiple reasons that could be the cause. But I could not specifically account it to one particular event.
Q.100 My question though, doctor is, nowhere in this affidavit do you say “I told Mr. Colin that his injuries were related to an intraoperative complication.” You dance around it, you say
MS. KUEHL: That’s not fair.
A. There wasn’t a complication. He was worse after surgery. But there wasn’t a complication that we could perceive during surgery. The complication became only apparent after, when he was weaker.
[15] On his examination for discovery, Mr. Colin described how he felt immediately after the operation and his recollection of the post-operation meeting with Dr. Lewis. Mr. Colin testified as follows:
Q.1598 How would you describe your condition immediately after surgery?
A. Bad, I was freaking out.
Q.1599 Can you describe your physical condition in terms of your functionality? I am just talking in the couple of weeks after surgery, while you were still at Toronto General Hospital.
A. Well, immediately after surgery, I couldn't feel the left-hand side of my body. I couldn't lift my leg, my arm. Everything was, like, numb. I was freaking right out. I was ... I thought that that was it. I was ... I don't know, maybe I was naive or whatever, but I ... when I went into the hospital, I was walking like Frankenstein. I couldn't walk too far without holding onto something. They gave me, like, a special walker. And I thought that, after the surgery, I would be walking out of there. That is what I thought.
Q. 440. …. So I am just wondering what discussions you have had with Dr. Lewis about why you have had this outcome from the surgery and why you haven't had, maybe, the results or the progress that you have been hoping to have.
A. Well, when you see the MRI and you see the ... you will see, like my spinal cord. Think of it as a river, and in the middle of the river, there is an egg-shaped white island, and that egg-shaped white island is the spinal cord damage, okay?
Q.44l. Mmhmm.
A. And basically, because of the spinal cord damage, it affected my left-hand side. As for why it hasn't gotten better or anything ... well, since the surgery, certain things have gotten better with me. The limiting factor is basically because of my pain. And that is something that is really restricting me from ... it is a big restriction, type of thing. But why? All I can say is it is spinal cord damage. I don't know why it is the way it is. He told me that basically, the ... I think it is on the right side. I am not sure, really, if the right side of the spinal cord affects the left side, or if the left side is the right side. So this side here is more affected than anything else. …
[16] On his cross-examination for the motion to add Dr. Lewis as a defendant, Mr. Colin’s evidence about his conversation with Dr. Lewis after the operation was somewhat different. He testified that his condition was worse after the surgery than before, but he did not initially think that the worsening was permanent; he testified:
Q.118. So you agree with me, regardless of how you labelled it, you were very concerned, freaking out, immediately after surgery?
A. The way I put it, yes.
Q.119 And the reason you were freaking out was because immediately after surgery, you woke up worse than before you went into surgery?
A. Yes.
Q.123 What you knew when you woke up on May 2006 …
A. Mmhmm.
Q.124 … was that you were worse after surgery then before. Right?
A. Yes.
Q.125 And that you knew that this was not what was supposed to happen after the surgery?
A. I did not know that. I was assured by, Dr. Lewis assured me that he knew what was wrong and he would have another operation.
Q.137 Okay.
A. I just woke up from surgery and I can't feel the left hand side of my body and you're telling me basically, you know, I was expecting, you know, to, I don't know what to tell you. I notified the medical staff that I couldn't feel the left hand side of my body. Assurances were made to me that everything was going to be alright, and Dr. Lewis said he knew what was wrong with me and he's going to have another operation.
Q.138 And you never had that other operation. Right?
A. No, and I was quite surprised about that.
Q.139 Right. And the reason why you didn't have another operation is that in the meantime, Dr. Lewis did an MRI. Right?
A. Possibly, yes.
Q.140. And he told you that, in fact, there was no need for another operation. Right?
A. The way Dr. Lewis said it was basically that everything was going to be okay. When I woke up from -- when I was getting ready for the second surgery, I was to be operated on in the morning, the next morning.
Q.141 Mmhmm.
A. I woke up from surgery, there was a team of doctors around me, they said, “Everything is going to be okay, you’re going to go to rehab”. There was an Asian doctor there with Dr. Lewis and another person. They were talking about that I could run again, I could jog. I could walk. So what was I supposed to think? It was part of, it was, I was told that through rehab that everything would be okay.
Q.142 Okay. Sir, let me just go ahead a bit. When you get out of rehab, everything was not okay. Right?
A. When I got out of rehab, everything was not okay.
Q.171 … you knew at that time you were still worse off after surgery then you were before surgery. Right?
A. At that particular day?
Q.172 On that particular day you knew that you had been worse after surgery then before surgery. Right?
A. Yes, but I did not know that that was going to be a permanent thing.
Q.173. Right. Well, certainly you knew by June 2007 [discharge from rehab] that you hadn’t improved. Right?
A. I improved some things.
Q. Right. But you were still worse after surgery then before surgery?
A. Yes.
[17] In September 2006, about four months after his surgery, Mr. Colin retained Mr. Dixon of the law firm Thomson Rogers to investigate whether he had a medical negligence claim arising from the care he had received.
[18] Mr. Dixon had 30 years’ experience in medical negligence claims including spinal cord injuries. His firm was one of the leading firms in the field of personal injury claims.
[19] In taking instructions from Mr. Colin, Mr. Dixon obtained Mr. Colin’s medical records including the hospital records and the records of the surgery. Mr. Dixon obtained preliminary expert opinions from an unidentified neurologist and from a family physician, Dr. Brankston. Both the neurologist and Dr. Brankston reviewed the care that Mr. Colin had received from all the doctors involved.
[20] What the neurologist said was not disclosed but Dr. Brankston said nothing in his report to impugn the treatment and care provided by Dr. Lewis. Following these communications with the neurologist and Dr. Brankston, and his own review of the medical records and interview of Mr. Colin, Mr. Dixon recommended that an action be brought against Dr. Tan.
[21] Mr. Dixon was cross-examined about whether he had considered recommending a lawsuit against Dr. Lewis. Mr. Dixon testified:
Q.79 And your role was to, at least in the immediate period, investigate whether there was a possible claim against anybody?
A. To look at the file and determine who likely, if anyone, bore a legal responsibility for Mr. Colin’s situation, yes.
Q.80 Which would include looking at what was the cause of his deficits as they presented to you in September of 2006?
A. Sorry, and?
Q.81 Which included looking at what would be the cause of his deficits as he presented to you in September of 2006?
A. Yes and no. I guess I have to get specific as to this case. Based on a general knowledge gained over years of practice, it was apparent Mr. Colin had suffered one of the accepted risks of surgery, namely that for reasons perhaps not perfectly understood he would come out of surgery worse than he went in. I gather the general view of neurosurgeons and orthopaedic surgeons was [that] the hope always was to arrest any further neurological deterioration and perhaps hope for some improvement, but that statistically, a certain number of patients come out of the surgery with worse symptoms than they went in.
Q.82 And you knew at the time that one of the risks, or based on your own experience in the area …
A. Yes.
Q.83 … that one of the risks of this particular surgery is a worsening condition post-operatively?
A. Correct.
Q.84 And that that can be because of something that happened during the surgery itself, or it’s a risk of the surgery itself?
A. Well, I guess there is always the potential a surgeon screws up and that’s why.
Q.85 Right.
A. But it also happens for reasons that I think are perhaps poorly understood.
Q.86 I know. Poorly understood, no complications seen?
A. Yes.
Q.87 But still worse immediately after the surgery?
A. Correct.
Q.88 For reasons not understood is that something happened during the surgery?
A. Correct. I’m going to amend my answer on that. I can’t speak to whether the worsening is a result of something that happens during surgery, that no one picks up on, or whether that patient, at that time, is simply destined to be one of those who gets worse, not better.
Q.89 Would you agree that its important in terms of assessing a particular patient’s or a particular client’s claims, to know whether or not it’s something that happened during the surgery, and investigate that, as opposed to that patient just being destined to be that way?
A. I think if there was some reason to believe something happened during surgery, I would pursue that.
Q. 90 And the reality is, is that there can be nothing during the surgery and yet there will still be any case, still be a problem, a poor outcome?
A. Correct.
Q.91 There are times where surgeons note, and based on your experience, times when surgeons see no complications during the course of the surgery itself and yet there is a bad outcome?
A. Yes.
Q.92 And that, you knew at the time, could be because the surgeon is negligent and just missed the intraoperative complications, that’s one option?
A. In theory, yes.
Q.93 All right. Another theory is, things just happen that cannot be explained and therefore, there is no explanation?
A. Correct.
Q.94 And these were things that you knew at the time when you saw Mr. Colin in September 2006?
A. Correct.
Q.95 And they informed your thinking of this case when you were looking at the potential defendants?
A. Sorry, the?
Q.96 They informed your thinking when you were considering the potential defendants?
A. It was something I considered. I looked at all the potential sources of harm, and I didn’t see anything in the Operative Notes that led me to think that Mr. Colin had suffered anything other than an unfortunate, but recognized poor outcome. Just as much as I didn’t see evidence that he had been dropped from the gurney on his way to the recovery room and dropped on his head. And which, if I had, I would have sued the hospital, obviously, but I didn’t.
Q.97 Right.
A. So I’m spending the client’s limited funds to try and investigate these claims. And you have to, at some point, make a judgment about where you bet the money.
Q.98 And in this case, sir, when you were doing that cautious thought, one of the things you did consider is, is Dr. Lewis a potential defendant. Right? And then you ruled it out, in your mind, you exercised your judgment to say, there’s nothing in the records that suggest anything untoward?
A. Correct.
[22] Thus, Mr. Dixon concluded that he could recommend that a malpractice action claim should be made against Dr. Tan. In his report to Mr. Dixon dated October 1, 2007, Dr. Brankston attributed Mr. Colin’s injuries to Dr. Tan’s delay in diagnosis. In his report, Dr. Brankston stated:
It is my opinion that the medical management that Dr. Tan provided to Mr. Colin fell below the expected standard. In my opinion, the patient’s acute spinal cord compression syndrome resulting in his incomplete quadriplegia and Brown--Séquard syndrome could have been avoided by a more timely diagnosis and surgical intervention. .… Dr. Tan’s substandard management did not allow for timely neurosurgical intervention to occur. Thus, the patient was unnecessarily permitted to develop the acute neurological deterioration of an incomplete quadriplegia that has resulted in the poor outcome of severe neurological impairment and wheelchair dependence.
[23] On April 23, 2008, on Mr. Dixon’s recommendation, Mr. Colin commenced an action against Dr. Tan. No claim was made against Dr. Lewis, who continued to be involved in Mr. Colin’s post-operative care until April 2010.
[24] The action against Dr. Tan proceeded through examinations for discovery, and the action was set down for mediation in September 2012 and a pre-trial scheduled for November 16, 2012. The progress toward a trial, however, was interrupted.
[25] On April 23, 2012, Dr. Tan served an expert’s report from Dr. Duncan, who is a neurosurgeon. The report is dated April 21, 2012, and in it, Dr. Duncan opined that based on his review of the medical records, his review of relevant medical literature, and his clinical experience as a neurosurgeon, Mr. Colin’s tetraplegia was not caused by a delay in diagnosis but was caused by an undocumented intraoperative spinal cord injury of uncertain cause. Dr. Duncan’s report stated at pages 14-15:
Therefore, it is my opinion that, although Dr. Tan was not able to make a diagnosis of cervical myelopathy prior to Mr. Colin’s hospitalization in May 2006, any delay that this may have caused between the onset of symptoms after December 2005 and operative treatment in May 2006 did not contribute to Mr. Colin’s ultimate functional and neurologic outcome. This conclusion is based on Mr. Colin’s neurologic state immediately prior to operation and the expected outcome from surgical decompression based on my own clinical experience and published clinical series such as Gok et al. …. The cause for this acute deterioration is uncertain in that both handwritten and dictated operation notes do not describe any intraoperative complications.
[26] Dr. Duncan’s report does not contain any criticism of Dr. Lewis or any opinion about whether Dr. Lewis was negligent in performing Mr. Colin’s surgery, and the report does not identify any error that might have occurred during the surgery. Dr. Duncan opines that as a matter of causation acute functional deterioration is a risk of surgery caused by intraoperative spinal cord injury and this risk appears to have materialized in Mr. Colin’s case.
[27] The receipt of Dr. Duncan’s report prompted Sloan Mandel, one of Mr. Colin’s lawyers at Thomson Rogers, to write Dr. Lewis. The letter, dated May 23, 2012, does not suggest that Dr. Lewis might have done anything wrong. Mr. Mandel enclosed a copy of Dr. Duncan’s report. Mr. Mandel asked Dr. Lewis if there was an intraoperative event that caused Mr. Colin’s neurologic deterioration.
[28] On June 22, 2012, Dr. Lewis wrote in reply, and he stated that he had reviewed the medical records and there was no intraoperative event or complication of which he was aware at the time of the surgery.
[29] The lawyers at Thomson Rogers discussed Dr. Duncan’s report with Mr. Colin in September 2012 and advised him that Dr. Duncan’s opinion was that the tetraplegia may have been caused by something Dr. Lewis did during surgery. Mr. Colin says that this was the first time that anyone had suggested that Dr. Lewis’s surgery may have caused Mr. Colin’s injury.
[30] Shortly after this advice, Mr. Colin hired new lawyers, the law firm of Paul Harte Professional Corporation, which obtained another opinion from an expert in spinal surgery, who concluded that the surgery might have been negligently performed. The new lawyers recommended to Mr. Colin that Dr. Lewis should be joined as a co-defendant.
[31] On December 10, 2013, Mr. Colin brought a motion to have Dr. Lewis added as a defendant. In his proposed amended Statement of Claim, Mr. Colin pleads that he could not reasonably have discovered his claim against Dr. Lewis before the receipt of Dr. Duncan’s report.
[32] Scheduling of the motion to join Dr. Lewis proved problematic, and it was eventually scheduled as a long motion before Master Hawkins on February 25, 2015. By this time, on consent, Justice Corbett had granted Mr. Dixon intervenor status to appear on the motion.
[33] The argument of the motion began on February 25, 2015, but the hearing was not completed. The hearing was adjourned; to be resumed and completed on May 19, 2015.
[34] Master Hawkins reserved his decision. On August 14, 2015, he released his decision granting the motion and ordering that Dr. Lewis be added as a defendant with leave to plead a limitation of action defence.
[35] The essence of the Master’s reasoning is set out in paragraphs 14 to 19 and 37 to 40 of his Reasons for Decision, which state:
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.
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 intraoperative event that caused Mr. Colin's neurologic deterioration.
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 intraoperative event or complication that he was aware of at the time of the surgery.
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.
Dr. Brankston 's report does not mention any surgical complications.
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 intraoperative 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.
Counsel for Mr. Colin submits that Dr. Lewis’s 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 Limitations Act, 2002. Similarly, counsel for Mr. Colin submits that Dr. Lewis's 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.
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 intraoperative 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.
Master Dash had a similar situation before him in Wong v. Adler, [2004] O.J. No. 1515 (Master). 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.
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.
[36] Dr. Lewis appeals the decision of the Master. The appeal is resisted by Mr. Colin and his former lawyer Mr. Dixon. Dr. Tan took no position.
C. DISCUSSION AND ANALYSIS
1. Standard of Appellate Review
[37] A Master's decision should not be interfered with unless the Master made an error of law, exercised his or her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable or overriding error: Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.); affd. (2009), 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.).
2. Statutory Provisions
[38] For present purposes, the relevant rule from the Rules of Civil Procedure is rule 26.01, which states:
RULE 26 AMENDMENT OF PLEADINGS
General Power of Court
26.01 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.
[39] For present purposes, the relevant provisions of the Limitations Act, 2002 are sections 1, 4, 5, and 15, which state:
Definitions
- In this Act,
"claim" means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;
Basic limitation period
- 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.
Discovery
- (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).
Presumption
(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.
Ultimate limitation periods
- (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
General
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
Period not to run
(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;
(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.
Burden
(5) Subject to section 10, the burden of proving that subsection (4) applies is on the person with the claim. ….
3. Analysis
[40] In my opinion, the Master was led into making several significant errors of legal and factual analysis by Mr. Colin’s submission that Dr. Lewis’s failure to mention any complications in his surgical notes and Dr. Lewis’s statement in his letter of June 22, 2012 that he was unaware of any surgical complications, amounted to wilfull concealment under s. 15(4) of the Limitations Act, 2002.
[41] As a consequence of his misdirected focus on wilfull concealment, the Master’s conclusion that there were issues of fact and credibility that affected the question of discoverability was a palpable and overriding error of fact, and he erred in his application of the law from Wong v. Adler, [supra, about when a person may be joined to an action as a defendant when it is apparent from the proposed statement of claim that the claim against the person is presumptively statute-barred.
[42] Section 15 of the Limitations Act, 2002 imposes an ultimate limitation period of 15 years and s. 15(4) of the Act provides an exception to the expiry of the ultimate limitation period. However, the case at bar does not implicate the ultimate limitation period and thus reference to s.15(4) by Mr. Colin and by the Master is a non sequitur. However, this error of reasoning can be overlooked, because there is an equitable principle that serves the same function as s. 15(4) for the basic limitation period found in s. 4 and s. 5 of the Act. It is the principle of fraudulent concealment.
[43] However, what cannot be overlooked is that in the case at bar there was no fraudulent concealment (or wilfull concealment) that affected the discoverability of a claim against Dr. Lewis.
[44] Fraudulent concealment is an equitable principle aimed at preventing a limitation period from operating as an instrument of injustice: M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6 at para. 66; Guerin v. Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335; Giroux Estate v. Trillium Health Centre (2007), 2005 1488 (ON CA), 74 O.R. (3d) 341 (C.A.) at paras. 28-29. Fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover his or her cause of action; M. (K.) v. M. (H.), supra; Mongeon v. Sammon, 2012 ONSC 409 at para. 39; Charette v. Trinity Capital Corp., 2012 ONSC 2824; Halloran v. Sargeant, 2002 45029 (ON CA), [2002] O.J. No. 3248 (C.A.).
[45] The constituent elements of fraudulent concealment are threefold: (1) the defendant and plaintiff have a special relationship with one another; (2) given the special or confidential nature of the relationship, the defendant's conduct is unconscionable; and (3) the defendant conceals the plaintiff's right of action either actively or the right of action is concealed by the manner of the wrongdoing: M. (K.) v. M. (H.), supra; Guerin v. Canada, supra; Authorson (Litigation Administrator of) v. Canada (A.G.) (2007), 2007 ONCA 501, 86 O.R. (3d) 321 (C.A.) at paras. 120-131, leave to appeal to S.C.C. ref'd. [2007] S.C.C.A. No. 472; Giroux Estate v. Trillium Health Centre, supra at para. 29; Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352 at para. 3.
[46] Fraudulent concealment includes conduct that having regard to some special relationship between the parties concerned is unconscionable: Giroux Estate v. Trillium Health Centre, supra at para. 22; Kitchen v. Royal Air Force Assn., [1958] 2 All E.R. 241 (C.A.) at 249; M. (K.) v. M. (H.), supra at para. 63. For fraudulent concealment, the defendant must hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing: Johnson v. Studley 2014 ONSC 1732 at para. 83. The word fraudulent is used in its equitable (not common law) sense to denote conduct by the defendant such that it would be against conscience for him or her to avail himself of the lapse of time: King v. Victor Parsons Co., [1973] 1 All E.R. 206; Huet v. Lynch, 2000 ABCA 97; Guerin v. Canada, supra, at para. 390.
[47] There is a causative element to the doctrine of fraudulent concealment because the legal policy behind fraudulent concealment is that if the plaintiff was unaware of his or her cause of action because of the wrong of the defendant, then the court will refuse to allow a limitation defence; i.e., the plaintiff must be ignorant of the cause of action because of the misconduct of the defendant: M. (K.) v. M. (H.), supra at paras. 57-58.
[48] These being the elements of fraudulent concealment, the Master erred in fact and in law in concluding that there was a case to be tried about fraudulent concealment. The alleged wilfull or fraudulent concealment in the case at bar is Dr. Lewis’s failure to mention any complications in his surgical notes and Dr. Lewis’s statement in his letter of June 22, 2012 that he was unaware of any surgical complications.
[49] Assuming that there was a complication that Dr. Lewis did not disclose, and accepting that Dr. Lewis had a special relationship with Mr. Colin and accepting that it was unconscionable for Dr. Lewis not to disclose a known surgical complication, this non-disclosure did not conceal Mr. Colin’s right of action against Dr. Lewis. As the facts above reveal, Mr. Colin and his lawyer Mr. Dixon both subjectively and objectively knew or ought to have known that Mr. Colin had a negligence claim against Dr. Lewis, if not shortly after the surgery, then certainly after Mr. Colin finished his rehab and understood that his condition had been made worse and not better by Dr. Lewis’s surgery.
[50] Mr. Colin and Mr. Dixon submit that it was not until Dr. Duncan (Dr. Tan’s expert) delivered his report that a claim against Dr. Lewis could have been discovered. This is not correct, but even assuming it to be true, there was nothing that Dr. Lewis did that prevented or delayed Dr. Duncan or that would have delayed Dr. Brankston or the unidentified neurologist or a neurosurgeon that could have been retained by Mr. Dixon from discovering the claim against Dr. Lewis. Dr. Lewis did nothing to hide the prospect of a negligence claim against him.
[51] Moreover, in the circumstances of this case, where Mr. Colin’s worsened condition only became apparent after the surgery, for Dr. Lewis not to have made a surgical note about an intraoperative event not only does not conceal the prospect of a claim against Dr. Lewis, it conceals nothing at all. Unless we mentally abandon the idea that events have causes, whether or not Dr. Lewis wrote or voiced the words that “something must have happened during the surgery to explain why Mr. Colin was worse and not better” it could not be concealed that “something must have happened during the surgery to explain the worsened condition of Mr. Colin.” Given that intraoperative events can be misadventures with or without negligence, it might have been an act of concealment for Dr. Lewis to suggest to Mr. Colin that the worsening of his condition was not the consequence of an intraoperative event, but it conceals nothing to be silent about the obvious phenomenon that something must have happened during the surgery to explain why Mr. Colin was worse and not better.
[52] What is particularly odd about the finding that there was a triable issue that Dr. Lewis may have fraudulently concealed the claim against him is that it is based, in part, on Dr. Lewis’s letter of June 22, 2012, which comes after Dr. Duncan’s report that was the eureka moment for the discovery of a claim against Dr. Lewis. It makes no sense to conclude that Dr. Lewis’s subsequent letter concealed something or delayed the discovery of something that had already been discovered.
[53] Another oddity is the Master’s finding that there was a credibility contest between what Mr. Colin was told after the operation about the reason for his worsened condition and Dr. Lewis’s evidence that after the surgery, he told Mr. Colin that the worsened condition was caused by an intraoperative event, which Mr. Colin’s counsel submitted was a recent fabrication.
[54] The oddity is that Mr. Colin gave no evidence that he was provided with an explanation as to why the surgery had failed to make him better. His evidence is rather that he was told that his worsened condition could be fixed by another surgery, which never occurred, or by rehab, which did occur, but which did not improve matters. I have reviewed Mr. Colin’s affidavit and the transcript of Mr. Colin’s cross-examination, and he was never asked what explanation was given to him as to why the surgery made him worse and not better. Mr. Colin and Dr. Lewis were never asked the same question; there is no contradiction and no credibility contest to determine, both accounts are believable.
[55] But, in any event, there was nothing that Dr. Lewis said or did not say that concealed that it might have been something that happened during surgery, including all of incidental, accidental, intentional, unintentional, or negligent conduct that would explain Mr. Colin’s unfortunate fate. Mr. Colin was never ignorant of the cause of action against Dr. Lewis, and if he was ignorant, that ignorance cannot be attributed to anything Dr. Lewis said or did not say.
[56] The Master’s examination of the evidentiary record led him to the mistaken conclusion that fraudulent concealment (which I parenthetically note has never been pleaded and only arose during argument of the joinder motion) raised an issue of credibility that justified joining Dr. Lewis as a defendant with leave to plead a limitation defence. This error led him to further errors. The Master failed to properly apply Wong v. Adler and the law about when an amendment should be permitted to a statement of claim to plead a cause of action that, but for a discoverability question, is patently statute-barred.
[57] The Master was correct that a plaintiff may be able to rely on the discoverability principle to postpone the running of the limitation period, and he was correct in his understanding that if there is some doubt concerning the application of the discoverability principle, the approach of the courts is to allow the amendment with leave of the defendant to plead the limitation period defence, which defence will then be decided on the full evidentiary record at the trial or summary judgment motion. See: Wong v. Adler, supra; Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.); Greenstone (Municipality) v. Marshall Macklin Monaghan Ltd., 2013 ONSC 7058 (Div. Ct.).
[58] And, as argued by Mr. Colin, it is correct that at the pleadings amendment stage, the plaintiff will not require much evidence to establish that there is a triable issue that a proposed defendant could not have been identified with due diligence within the limitation period and that it is rare that the applicability of the discoverability principle based on due diligence will be determined on a motion to add a party. See: Fanshawe College of Applied Arts and Technology v. Sony Optiarc Inc., 2013 ONSC 1477; Wakelin v. Gourley (2005), 2005 23123 (ON SC), 76 O.R. (3d) 272 (Master), aff’d [2006] O.J. No. 1442 (Div. Ct.); Tomescu v. Sarhan, 2013 ONSC 1358.
[59] However, if the plaintiff does not show that there is an issue to be decided about whether he or she was unaware of the claim despite due diligence, and it is clear that the claim was discovered or ought to have been discovered, then the amendment will and should be refused. In other words, if there is no issue requiring a trial, and it is established that the limitation period defence is available to the defendant, the court will refuse the amendment. See: Wong v. Adler, supra; Pepper v. Zellers Inc., supra; Leighton v. Goodyear Canada Inc., [2008] O.J. No. 1870 (S.C.J.); Pooran v. 2029301 Ontario Ltd., [2008] O.J. No. 2812 (Master); Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773; Wakelin v. Gourley, supra.
[60] In my opinion, in the case at bar, the Master was incorrect that there was an issue of discoverability requiring a trial. Despite the low threshold of showing a triable issue about discoverabilty, Mr. Colin failed to clear the hurdle.
[61] The evidence showed that both subjectively and objectively Mr. Colin and his lawyer Mr. Dixon knew or ought to have known of the claim against Dr. Lewis by 2008. The evidence establishes that a purposeful decision was made not to sue Dr. Lewis in 2008 and after that decision, four years later, in 2012, with no new information, Mr. Colin’s lawyers had decision-regret or second thoughts.
[62] Applying the proper analysis, it should have been clear to the Master that the claim against Dr. Lewis was statute-barred.
[63] Section 1 of the Limitations Act, 2002 defines "claim" to mean: "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission." A claim is a cause of action, which is the fact or facts which give a person a right to judicial redress or relief against another. See Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.) at p. 170. In Lawless v. Anderson, the Ontario Court of Appeal stated at paras. 22-23:
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. This 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"....
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation period begins to run: see Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 5744 (ON CA), 132 O.A.C. 304 (C.A.).
[64] With respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew — a subjective criterion — or ought to have known — an objective criterion — about the claim: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.
[65] When a limitation period defence is raised, the onus is on the plaintiff to show that its claim is not statute-barred and that it behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue: Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803 at paras. 35-41; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6657 at paras. 12-14; Bhaduria v. Persaud (1985), 1998 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.). That the onus is on the plaintiff accords with the presumption in s. 5(2) of the Act that a person with a claim shall be presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[66] The discoverability of a claim for relief involves the identification of the wrongdoer and also the discovery of his or her acts or omissions that constitute liability: Aguonie v. Galion Solid Waste Material Inc. supra; Ladd v. Brantford General Hospital (2007), 2007 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.). It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.).
[67] In determining whether a plaintiff knew or ought to have known of the facts giving rise to the cause of action, the knowledge of his or her solicitors is imputed to the plaintiff: Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.); Davenport v. Roughley Estate, [2003] O.J. No. 679 (Master); Biancale v. Vieyra, [2007] O.J. No. 1579 (S.C.J.).
[68] The question is whether the prospective plaintiff or his or her lawyer knows enough facts to base a cause of action against the defendant, and, if so, then the claim has been discovered and the limitation period begins to run: Lawless v. Anderson, supra at para. 23; Soper v. Southcott supra; McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076 (C.A.); Gaudet v. Levy (1984), 1984 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.) at p. 582. In Soper v. Southcott, supra, the Court of Appeal stated:
Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence in requesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period.
[69] In Gaudet v. Levy, supra, at p. 582 (in a passage approved by the Court of Appeal in Soper v. Southcott), Justice White stated:
It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him.
[70] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged; i.e. of being worse off than before the defendant’s conduct: Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156; Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at paras. 64-66.
[71] For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant caused him or her harm, and certainty of a defendant's responsibility for the act or omission that caused or contributed to the loss is not a requirement: Kowal v. Shyiak, 2012 ONCA 512 at para. 18; Duchesne v. St-Denis, 2012 ONCA 699 at paras. 24-27; Gaudet v. Levy, (supra. In Beaton v. Scotia iTrade, 2012 ONSC 7063, affd. 2013 ONCA 4095, Justice Belobaba stated at para. 13:
- The claimant only has to know enough material facts on which to base a legal allegation. Once the plaintiff knows that some damage has occurred and has identified the alleged wrongdoer, "the cause of action has accrued". Neither the extent nor the type of damage need be known. The claimant also need not know the details of the wrongdoer's conduct or how the wrongdoer caused the loss. The question of "how it happened" will be revealed through the legal proceeding.
[72] The discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; the limitation period runs from when the prospective plaintiff has or ought to have had knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not give rise to the discoverability principle: Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 13633 (ON SC), 71 O.R. (3d) 330 (S.C.J.) at paras. 10-13; Giakoumakis v. Toronto (City), [2009] O.J. No. 55 (S.C.J.) at para. 20.
[73] In the case at bar, Mr. Colin and Mr. Dixon, who was retained within four months of the surgery, both knew that some damage had occurred from the surgery and they both knew that Dr. Lewis was the surgeon. They knew that the surgery was a laminectomy, which is a surgical procedure that removes lumbar herniated disc material. They knew a bone had been removed from Mr. Colin’s spinal cord and that the remaining bones were fused together, which obviously involves intraoperative physical contact with the spine. Before the surgery Mr. Colin was told, what one would have thought was obvious, that one of the risks associated with the surgery was direct trauma during the surgery to the spinal cord that was being decompressed, dissected, excised, and fused. Mr. Colin and his lawyer did not need to be told and rather knew that something had happened during the surgery to cause Mr. Colin’s worsened condition and that incidentally, accidentally, or negligently Dr. Lewis literally had a hand in the occurrence of that something.
[74] Mr. Colin and Mr. Dixon say that the 2012 report from Dr. Duncan, who is a neurosurgeon, revealed for the first time the negligence claim against Dr. Lewis. Assuming this is true and assuming that Mr. Colin and Mr. Dixon did not subjectively know all they needed to know to discover a claim against Dr. Lewis until 2012, the problem for Mr. Colin is that Dr. Duncan’s opinion was based on what would or could have been objectively known to Mr. Colin and Mr. Dixon in 2006 with due diligence. Dr. Duncan’s opinion was based on his review of the medical records and Mr. Colin’s account of what had occurred in 2006.
[75] Back in 2006, Mr. Colin’s lawyers had consulted with a neurologist and there was no obstacle to their having consulted with a neurosurgeon in the exercise of due diligence to determine who should be sued before the claim became statute-barred. Dr. Duncan’s 2012 report added nothing to what could have been learned by similar due diligence in 2006.
[76] An irony of the case at bar is that Dr. Duncan’s 2012 report actually adds nothing to the state of knowledge that Mr. Colin and Mr. Dixon have had since 2006, which is that Mr. Colin’s worsened condition must have been caused by an intraoperative event. Dr. Duncan does not suggest that the intraoperative event was Dr. Lewis’s negligence. It is not as if Dr. Duncan reviewed the surgical notes or Mr. Colin’s account of his interactions with Dr. Lewis and opined that Dr. Lewis made a negligent error or omission. In any event, Dr. Duncan’s report is not about liability at all; it is about causation in a claim against Dr. Tan.
[77] If indeed Mr. Colin did not subjectively know that he had a claim against Dr. Lewis until Dr. Duncan’s report, then the question becomes whether applying an objective test, the claim was knowable with reasonable diligence two years before December 10, 2013, when Mr. Colin brought a motion to have Dr. Lewis added as a defendant. The answer to that question is yes, the claim was knowable, and, therefore, applying an objective test, Mr. Colin’s claim is statute-barred.
[78] Mr. Colin was certainly diligent and responsible in determining whether or not he had a claim against Dr. Lewis. Mr. Colin hired an experienced lawyer at a highly regarded personal injury firm with the ways and means to make a recommendation about who should be sued for his worsened condition. In 2006-2008, with the assistance of a family physician and a neurologist and his own expertise and experience, Mr. Dixon scrutinized the evidence and recommended only a lawsuit against Dr. Tan. Mr. Colin and Mr. Dixon knew all they needed to know to discover that they had a claim against Dr. Lewis and they made an advertent decision not to pursue that known and knowable claim.
[79] The claim against Dr. Lewis is statute-barred and the Master erred in joining him to the action.
D. CONCLUSION
[80] For the above reasons, the appeal is allowed and the Master’s Order is set aside.
[81] If the parties cannot agree about the matter of costs they may make submissions in writing, beginning with Dr. Lewis’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Colin’s and Mr. Dixon’s submissions within a further 20 days.
Perell, J.
Released: February 17, 2016
CITATION: Colin v. Tan, 2016 ONSC 1187
COURT FILE NO.: 08-CV-353358PD2
DATE: 20160217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK CONLIN
Plaintiff
– and –
TEN GHIN TAN
Defendant
REASONS FOR DECISION
PERELL J.
Released: February 17, 2016