Loy-English v. Fournier et al.

[Indexed as: Loy-English v. Fournier]

Ontario Reports Ontario Superior Court of Justice C. MacLeod J. October 19, 2018 143 O.R. (3d) 501 | 2018 ONSC 6212

Case Summary

Limitations — Discoverability — Plaintiff suffering perforation to her duodenum during outpatient surgery in January 2013 — Perforation not detected until plaintiff went to emergency later that day — Plaintiff suffering infection and septic shock and being hospitalized for lengthy period — Plaintiff suing her gastroenterologist within limitation period — Plaintiff commencing action in May 2016 against gastroenterology fellow who actually performed surgical procedure and other doctors identified through hospital records — Plaintiff commencing action against emergency doctor in December 2016 after receiving expert report indicating that his delay in administering antibiotics may have played critical role in her negative outcome — Defendants in second and third actions moving unsuccessfully for summary judgment dismissing actions as statute-barred — Genuine issues for trial existing with respect to discoverability.

The plaintiff suffered a perforation to her duodenum during outpatient surgery in January 2013. The perforation was not detected when she was discharged. She went to the emergency department later that day in severe pain. A series of negative events ensued, including an adverse reaction to medication, infection and septic shock. The plaintiff came close to death and was hospitalized until October 2013. She commenced an action against the gastroenterologist who supervised the surgical procedure and "Dr. John Doe" within the limitation period. The gastroenterologist defended the action in September 2015 and pleaded that the procedure was performed by a gastroenterology fellow. The plaintiff obtained her medical records in August 2014 and reviewed them with counsel. In May 2016, she commenced an action against the gastroenterology fellow and other doctors identified through hospital records as implicated in the original procedure, discharge, pain management or subsequent surgery. After obtaining an expert report on standard of care and causation, the plaintiff became aware that the emergency doctor might have played a critical role because he apparently delayed the administration of antibiotics. She commenced an action against that doctor in December 2016. The defendants in the second and third actions moved for summary judgment dismissing the actions as statute-barred.

Held, the motion should be dismissed.

The plaintiff had not yet brought a motion to determine whether or not naming Dr. John Doe in the first action was a misnomer that could be corrected to encompass some or all of the defendants. The possibility that a misnomer motion would succeed did not mean that summary judgment should not be granted if it was appropriate. A misnomer motion could have been brought at the same time as the defendants' motion and the issue could have been put squarely before the court. It was not.

The plaintiff was herself a medical doctor, familiar with hospital records. While she could have been more diligent in ordering the medical records, the standard is not that of perfection. The plaintiff could establish that she acted with reasonable diligence in obtaining the records. The plaintiff claimed that she was unaware that she [page502] had a cause of action against the emergency doctor until she received an expert report. The third action was commenced within days of receiving a confirming report. There were genuine issues that required a trial with respect to discoverability.

Cases referred to

970708 Ontario Inc. v. PCS Security Systems Inc., [2014] O.J. No. 3482, 2014 ONSC 4433 (S.C.J.); Bank of Nova Scotia v. 1736223 Ontario Ltd., [2018] O.J. No. 3986, 2018 ONSC 4449, 82 B.L.R. (5th) 288, 295 A.C.W.S. (3d) 55 (S.C.J.); Butera v. Chown, Cairns LLP (2017), 137 O.R. (3d) 561, 2017 ONCA 783; Claus v. Wolfman (2000), , 52 O.R. (3d) 680, [2000] O.J. No. 4818 (C.A.), affg (1999), , 52 O.R. (3d) 673, [1999] O.J. No. 5023, [1999] O.T.C. 194, 93 A.C.W.S. (3d) 758 (S.C.J.); Cornacchia v. Rubinoff, [2018] O.J. No. 2674, 2018 ONSC 2732 (S.C.J.); Friend v. Watters, [2012] O.J. No. 188, 2012 ONSC 435, 93 C.C.L.T. (3d) 71 (S.C.J.); Hassan v. Dunraj, [2014] O.J. No. 6119, 2014 ONSC 7374 (S.C.J.); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Irving Ungerman Ltd. v. Galanis (1991), , 4 O.R. (3d) 545, [1991] O.J. No. 1478, 83 D.L.R. (4th) 734, 50 O.A.C. 176, 1 C.P.C. (3d) 248, 28 A.C.W.S. (3d) 974 (C.A.); Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, 276 O.A.C. 75, 198 A.C.W.S. (3d) 333; Longo v. MacLaren Art Centre Inc., [2014] O.J. No. 3242, 2014 ONCA 526, 323 O.A.C. 246, 242 A.C.W.S. (3d) 426; McDonald v. Hoopp Realty Inc. (2014), 123 O.R. (3d) 49, [2014] O.J. No. 4876, 2014 ONSC 6089 (S.C.J.); McSween v. Louis, , [2000] O.J. No. 2076, 187 D.L.R. (4th) 446, 132 O.A.C. 304, 97 A.C.W.S. (3d) 327 (C.A.); Mehdi-Pour v. Minto Developments Inc., [2011] O.J. No. 2845, 2011 ONSC 3571, 282 O.A.C. 299, 3 C.L.R. (4th) 191, 204 A.C.W.S. (3d) 51 (Div. Ct.), affg [2010] O.J. No. 4948, 2010 ONSC 5414, 195 A.C.W.S. (3d) 94 (Master) [Leave to appeal to C.A. refused, October 20, 2011, Docket M40188]; Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital (2009), 97 O.R. (3d) 321, [2009] O.J. No. 4071, 2009 ONCA 697, 76 C.P.C. (6th) 238, 255 O.A.C. 174, 181 A.C.W.S. (3d) 221; O'Sullivan v. Hamilton Health Sciences Corp., [2011] O.J. No. 3161, 2011 ONCA 507; Peixeiro v. Haberman, , [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Singh v. Trump, [2016] O.J. No. 5285, 2016 ONCA 747, 76 R.P.R. (5th) 177, 408 D.L.R. (4th) 235, 62 B.L.R. (5th) 216, 271 A.C.W.S. (3d) 503; Soper v. Southcott (1998), , 39 O.R. (3d) 737, [1998] O.J. No. 2799, 111 O.A.C. 339, 43 C.C.L.T. (2d) 90, 80 A.C.W.S. (3d) 1087 (C.A.); Spirito v. Trillium Health Centre, [2008] O.J. No. 4524, 2008 ONCA 762, 69 C.P.C. (6th) 36, 246 O.A.C. 150, 302 D.L.R. (4th) 654; Travelers Insurance Co. of Canada v. Mady Contract Division Ltd., [2018] O.J. No. 1512, 2018 ONSC 1805 (S.C.J.); Urquhart v. Allen Estate, [1999] O.J. No. 2985, 124 O.A.C. 11, 90 A.C.W.S. (3d) 635,

Statutes referred to

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

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.01(3), 20.02(1), (2), 20.04(2) (a), (b), (2.1), (2.2)

MOTION for summary judgment dismissing the actions.

Tara M. Sweeney, for plaintiff (responding party). [page503] Anne E. Spafford, for defendant physicians (moving parties). J. Stephen Cavanagh, for Butler & Mann Lawyers (intervenors). Roberto Ghignone, for defendant hospital and nurses.

[1] C. MACLEOD J.: — I am the judge case managing three related medical malpractice actions. 1 On September 27, 2018, I heard a summary judgment motion. Counsel for the physicians seeks to have two of those actions dismissed. The physicians contend the later actions were commenced after the expiry of the limitation period.

[2] As this is a motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the question of the moment is whether the expiry of the limitation period can be determined without a trial.

[3] For the reasons that follow, I am not persuaded that the limitation period had expired. The plaintiff can establish that the actions may have been commenced within two years of the day when the actions were discovered. This is a genuine issue appropriately resolved by a trial unless the plaintiff is able to resolve the question by way of a "misnomer" motion.

Background

[4] The plaintiff is herself a physician and a specialist in neurology. She had been suffering from abdominal pain and receiving medical treatment. On January 8, 2013, she attended at the hospital for an outpatient procedure known as "ERCP" (Endoscopic Retrograde Cholangio-Pancreatography). This involves insertion of an endoscope down the throat, through the stomach and into the duodenum, which is the upper portion of the small intestine.

[5] During the course of that operation, it appears Dr. Loy-English suffered a perforation to her duodenum although it was not detected at the time and she was discharged from the clinic. She then attended at emergency due to severe pain. A series of negative events ensued. These included an adverse reaction to medication, infection and septic shock. She became gravely ill and wound up in intensive care. In fact, she came close to death. She was hospitalized continually at the Ottawa Hospital until August 23, 2013 and then at St. Vincent Hospital until October 23, 2013, when she was discharged with home care.

[6] As a consequence of her illness, the plaintiff suffered long-term negative consequences. She experiences diminished physical and cognitive capacity. In mid-2014, she began to actively [page504] investigate the medical care she received and to consider legal action. In June of 2014, she ordered a copy of her hospital chart and the following month she retained counsel. She apparently received her records in August of 2014 and on January 5, 2015 her then lawyer, Kevin Butler, issued a notice of action in court file no. 15-62991. A statement of claim was prepared on February 4, 2015. The defendants were named as the Ottawa Hospital, Dr. Harinder Dahliwal, Dr. Doe and Nurse Doe. Dr. Dahliwal was the gastroenterologist who supervised the procedure and the doctor the plaintiff believed had performed the ERCP.

[7] In September of 2015, Dr. Dhaliwal defended the action. In his defence, he indicated that it was not he personally who conducted the ERCP but rather it was the "gastoenterology fellow" who did so under his supervision. He also pleaded that it was the fellow who reviewed an X-ray for possible bowel perforation prior to discharging Dr. Loy-English. He also pleaded that if damages were suffered by the plaintiff, such damages were caused by other health professionals for whom Dr. Dhaliwal bore no responsibility.

[8] In April of 2016, the plaintiff retained Peter Hagan in place of Mann and Partners 2 and on May 20, 2016, action 16-68678 was commenced naming numerous health professionals. This action was commenced to protect against the possible expiry of the limitation period. It was quicker to start a second action than to argue contested motions to amend the original statement of claim or to add new parties. The new defendants included Dr. Marc Fournier, who was the gastroenterology fellow at the time of the procedure and other physicians identified through the hospital records as implicated in the original procedure, discharge, pain management or subsequent surgery. The plaintiff did not however sue Dr. Hébert. He was the emergency room physician who saw the plaintiff and treated her on the evening of January 8 and morning of January 9, 2013.

[9] Subsequently, the plaintiff obtained an expert report on standard of care and causation. She then became aware that Dr. Hébert might have played a critical role because he apparently delayed administration of antibiotics. According to the report, the six-hour delay may have played a critical role in the negative outcome experienced by the plaintiff. Consequently, she commenced another proceeding (action 16-70930) against Dr. Hébert. That statement of claim was issued on December 13, 2016. [page505]

[10] In the defences to both actions 16-68678 and 16-70930 limitation defences are raised. The defendants take the position that the two-year limitation period presumptively started when the events occurred in January of 2013. Unless factors exist to postpone the running of the limitation period, the two-year limitation period would have expired well before the second and third actions were launched.

[11] A fourth action for solicitor's negligence was commenced against Kevin Butler and Mann & Partners on February 11, 2017. While the existence of that action is not relevant to the issues I must decide, counsel for Butler and Mann was an active participant in the motion. Until I was assigned to these proceedings, they had been case managed by Justice Hackland. My colleague had denied a motion to permit intervention in the actions, but he did allow intervention in this motion.

The Issue

[12] It is not disputed that the first action was commenced within two years of the ERCP procedure. It was therefore validly commenced within the limitation period. The defendants contest the second and third actions. For the second action to survive, the limitation period would have to start running on or after May 20, 2014 while in the case of the third action it would have to commence on or after December 13, 2014.

[13] What complicates this question is "discoverability". This doctrine defines the point at which the limitation period begins to run and may result in a limitation date that is well after the second anniversary of the incident.

[14] It is important to understand that this is not an extension of the two-year period but a delay in the date from which it is calculated. This means that the plaintiff has a full two years after the date of "discoverability" to preserve her rights by commencing a court proceeding even if that date is well after the date of the medical procedure. For example, the plaintiff argues that she could only reasonably have known the identity and roles of the defendants in the second action when she obtained and reviewed the hospital charts.

[15] If the court accepts that submission and concludes that she was reasonably diligent in obtaining those records, the limitation period for the second action may not have begun to run until sometime after August of 2014. If an expert opinion was necessary to understand there was a potential claim against Dr. Hébert, and if the plaintiff acted with reasonable diligence in obtaining that opinion, the limitation period for the third action [page506] may not have begun to run until 2016. If those submissions are correct, then both actions were commenced within time.

[16] The question before the court is whether the moving party defendants can demonstrate that the plaintiff has no right to proceed. This will be so if the expiry of the limitation period is sufficiently evident that the issue can be determined without a trial.

The Law of Limitations

[17] In Ontario, no proceeding falling within the ambit of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B may be commenced after the second anniversary of the day on which the claim "was discovered". 3 The date of discovery is prescribed by statute as being the earliest of the day on which the person with the claim "first knew" or "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" the following four facts:

(a) that the injury, loss or damage had occurred;

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

(d) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. 4

[18] Although the date of "discovery" triggers the running of the limitation period, the Act deems the date of discovery to be the "day on which the act or omission on which the claim is based took place, unless the contrary is proved". 5 In short, in a medical negligence action, if the plaintiff cannot prove the four elements came together only on a later date, the limitation period will expire on the second anniversary of the procedure or error giving rise to the claim.

[19] The problem of course is this. It is easy to determine the date on which the alleged medical treatment or error occurred. It is also relatively easy to provide evidence of the date on which the [page507] decision to sue an individual was taken and the factors which coalesced at that time to render a legal proceeding appropriate. This will establish the earliest and latest dates on which the limitation period potentially expired. But to determine the precise date, the Act imposes a test with subjective and objective elements.

[20] Determining when "a person with the abilities and in the circumstances of the person with the claim first ought to have known" is a nuanced question of fact and law. It engages a subjective analysis of the circumstances of the plaintiff at the point in question and an objective analysis as to what a reasonable person in those circumstances ought to have known. It also requires consideration as to what efforts were made by the plaintiff and what information could have been unearthed had greater diligence been applied. It is a standard of reasonableness and not a standard of perfection. This has an impact on whether summary judgment can be granted.

Summary Judgment under Rule 20

[21] Rule 20.01(3) of the Rules of Civil Procedure permits a defendant to move for summary judgment dismissing all or part of the plaintiff's claim. This will be particularly appropriate in two circumstances. First, it may be apparent that the plaintiff cannot succeed in the action because she cannot prove an essential element of her case. Second, regardless of the underlying merits of the action, a defendant may have a complete defence. The expiry of the limitation period falls into both of these categories. The expiry of the limitation period is a complete statutory defence. For the case to survive, the plaintiff must have cogent evidence to defeat the presumption in the Act and to prove the running of the limitation period was deferred to a later date on which the claim was "discovered".

[22] Rule 20.02(2) is often referred to as the "best foot forwards" rule. It provides that a party responding to a summary judgment motion "must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial". Rule 20.04(2) (a) then requires that the court grant summary judgment if the "court is satisfied that there is no genuine issue requiring a trial". The notion of a genuine issue requiring a trial engages two separate concepts. First, the court must consider if there is a genuine issue at all. Second, the court must decide if the issue can be adjudicated without the need for a trial. 6 [page508]

[23] In the case of a limitation defence, there will be no genuine issue requiring a trial if the action was commenced after the second anniversary of the date when the action or omission occurred and the plaintiff cannot displace the statutory presumption. Even though the moving party on a summary judgment motion has the onus of persuading the court that summary judgment is appropriate, because of the reverse onus in the Act, the critical first question is whether the plaintiff is able to marshal such evidence. In considering that question, the court is entitled to assume that the plaintiff has put forward the best evidence she has and may assess the admissibility and probative value of that evidence. 7 The court may also draw adverse inferences from the failure to put forward better evidence. 8

[24] If the plaintiff's evidence is insufficient to create a genuine issue then as has always been the case under Rule 20, summary judgment should follow. 9 The assessment that there is no genuine issue to be resolved because of the absence of persuasive evidence is a determination that may be made without exercising the enhanced powers available to motion judges post-Osborne amendments.

[25] Those enhanced powers permit the motion judge to resolve a contested question of fact by assessing credibility, weighing competing evidence or drawing other inferences in the manner of a trial judge. Those enhanced fact-finding powers are set out in rule 20.04(2.1) and may be exercised solely based on the affidavits, documents and transcripts of cross-examination. If a paper review is inadequate for the purpose and oral evidence is necessary, a new tool is available to judges in the form of a mini-trial under rule 20.04(2.2). In this case the moving party specifically took the position it was not necessary to access these powers. In effect the moving party does not challenge the plaintiff's credibility. The argument in favour of summary judgment rests solely on the submission that the plaintiff's evidence is insufficient to overcome the statutory presumption. [page509]

[26] This is appropriate. I agree with counsel for the intervenor that if the court is asked to weigh evidence and make credibility findings, a summary judgment motion in advance of production and discovery may well be premature. 10

Misnomer, Summary Judgment and Abuse of Process

[27] Before turning to the evidence, it is necessary to address the intervenor's misnomer argument. As mentioned earlier, the original action names Dr. John Doe as a defendant. The addition of a placeholder defendant is a recognized device for bringing an action within the limitation period when the precise identities or roles of all potential defendants remain unclear. 11

[28] As correctly set out in the factum, "misnomer" refers to a situation in which a defendant is identified in the statement of claim but his or her name is incorrect or is unknown. Correcting the misnomer after the limitation period would otherwise have expired is not prohibited by the Act. 12 Ontario courts have shown increased tolerance and flexibility in relation to misnomer. Misnomer will apply if the "litigation finger" is pointing to the correct defendant with sufficient accuracy that he or she, or a representative such as an insurer, would have been effectively put on notice of the claim within the limitation period. In that case it may be possible to correct the misnomer even after considerable time and in the face of a summary judgment motion. 13 On the other hand, such flexibility is not infinite. To successfully correct the misnomer the plaintiff must persuade the court it remains fair to do so. 14

[29] Another device used to deal with potential limitation defences is to issue a second statement of claim. This is frequently done in the face of an imminent limitation deadline. This step may appear necessary to add a defendant or to introduce a new [page510] cause of action. Often, as in the case at bar, the new action is started "out of an abundance of caution". That is to say the new action is commenced to protect against the possible expiry of a limitation period but without abandoning the argument that the defendant has already been sued or the cause of action is already covered by the facts pleaded in the original claim.

[30] I do not agree with the suggestion by counsel for the physicians that either of these devices is an abuse of process. The plaintiff is entitled to take all reasonable steps to preserve her rights against the expiry of a limitation period. I agree, however, that it may become abusive to proceed with three overlapping actions if the end result is unnecessary confusion and duplication of costs. In my view, the plaintiff has an obligation of transparency, efficiency and proportionality. Where placeholding devices such as John Doe defendants or multiple actions are used, the plaintiff should take the necessary steps to correct the misnomer or to consolidate the proceedings as soon as possible.

[31] For some reason, the plaintiff has not yet brought a motion to determine whether or not naming Dr. John Doe in the first action is a misnomer that can be corrected to encompass some or all of the defendant physicians. This is despite having amended the claim to add particulars that now describe the actions of some of those physicians by name. It remains to be seen if the plaintiff can successfully argue that all of the defendant physicians fall within the ambit of the original timely pleading. This is not a motion that counsel for the intervenor can bring and no such motion is before me at this time.

[32] Counsel for the intervenor argues that it would be improper to dismiss the later actions on the basis of the limitation period because the defendants are or may have been properly sued in the original action. He argues that commencing separate proceedings is a question of procedure or form and the later actions should not be dismissed if the defendants have already been sued in the first action.

[33] I disagree. If the later actions are clearly out of time then commencing those actions out of an abundance of caution will have been an ineffective device. Commencing separate actions is only effective if they are brought within the limitation period. The defendants are entitled to determination of that question in relation to those actions. Provided she does not lose the right to do so through unreasonable delay, 15 the plaintiff may still bring the misnomer correction motion. [page511]

[34] The defendants should not be left in a state of uncertainty as to which of the actions is valid and whether or not substantive defences are required. While the plaintiff could have brought the misnomer motion well before now, she chose not to do so. It may be an unhappy result if it turns out that the later actions are out of time and she has all of her eggs in the one basket (the original action). If that is the case, there is no prejudice to the plaintiff in deciding the question now assuming the decision is amenable to summary judgment.

[35] I therefore reject the argument that summary judgment cannot be granted because of the possibility the misnomer motion will succeed. Nor do I consider it appropriate for me to rule on the misnomer question in passing. That motion could have been brought at the same time as this motion and the issue put squarely before the court. It was not.

[36] On the other hand, I accept the intervenor's submission and that of the plaintiff that it is open to me to grant partial summary judgment in favour of the plaintiff if I find that her evidence is conclusive. 16 A finding there is no genuine issue requiring a trial can cut both ways. It could be appropriate to decide the question of when the limitation period began to run if the evidence is such that a just determination can be made of that issue without waiting for the trial. This would have the benefit of rendering the question of misnomer moot and could shorten the trial but there are also considerations which may militate against such a step.

[37] Though it is open to the court to grant summary judgment to the responding party, careful thought would be necessary before taking this step. That is because summary judgment in favour of the defendant would be a final order dismissing the claim. Summary judgment in favour of the plaintiff would only be partial summary judgment eliminating one aspect of the defence.

[38] Granting partial summary judgment is a discretionary remedy which requires consideration to ensure it is both practical and efficient. As a practical matter, summary judgment on only one element of a case may introduce procedural complexity and delay if that judgment is appealed. Even if it is not appealed, it may not save trial time if much of the evidence would have to be repeated. For example, evidence that the plaintiff was gravely ill and could not reasonably have turned her mind to commencing litigation might also be relevant to causation and damages. In such a case there is also a risk of inconsistent findings. [page512] The Court of Appeal has ruled that partial summary judgment ought to be granted only in the clearest of cases in which the judgment sought is on a severable issue. 17

[39] There is therefore a third possibility which exists if the court finds that the question can only be properly decided at trial. In that case it will remain an open question. Such is the nature of summary judgment motions.

[40] Before turning to the evidence, I will just mention that counsel for the intervenor provided me with a useful review and critique of much recent jurisprudence. I have not found it necessary to address the argument that there is a difference between the time when a cause of action accrues at common law and the day when a claim is discovered under the Act. I need not seek to resolve what counsel identifies as inconsistency in the jurisprudence and failure of courts to recognize the extent to which the Act has changed the common law.

[41] I will just observe that in the seminal decision of Peixeiro v. Haberman, the Supreme Court of Canada endorsing the principle of discoverability in connection with Ontario's motor vehicle regime uses language suggesting a cause of action under Ontario law only "accrues" when it is possible to determine that the injuries exceed the threshold. 18 In Lawless v. Anderson, our Court of Appeal declared that [at para. 22] "[t]he principle of discoverability provides that 'a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence'". The court went on to define "'cause of action'" as "the fact or facts which give a person a right to judicial redress or relief against another". 19 Arguably, the effect of the Act is to identify discoverability as a constituent component of a cause of action in Ontario, but this is largely a question of semantics.

[42] The important point is the rationale underlying the discoverability principle. A limitation statute should not be construed to run before the plaintiff could reasonably know that she had a viable cause of action. It is this rationale that is codified in s. 5 of the Act. Whether the cause of action can be said to have arisen at an earlier date, knowledge that there is a cause of action [page513] and a legal proceeding is an appropriate avenue for relief is a component of discoverability. All four statutory components are necessary to trigger the running of the limitation period.

The Evidence of Discoverability and the Second Action

[43] Even though there was a series of events and decisions after the ERCP which appear to have contributed to the negative outcome experienced by the plaintiff, they all occurred within a few days in April of 2013. None of the limitation arguments in this case come down to a matter of days. No one is suggesting the limitation period began to run while the plaintiff was in a coma or in intensive care and as mentioned, the first action was commenced well within two years.

[44] The plaintiff has provided evidence of the dates on which she actually became aware of who she should be suing and why she did not include them in the litigation sooner. The law supports the proposition that knowledge of the identity of proposed defendants is an important element of discoverability. 20 The plaintiff could not have known the names or specific roles of the named defendants in the second action until she received her hospital records at the end of August 2014 and had time to review them with her counsel. The critical question is whether this evidence can survive the due diligence requirement. Would a reasonable person in the plaintiff's position have taken steps to obtain this information sooner?

[45] There are complicating factors in this case. First, the plaintiff is a physician. As she admitted on her discovery, she has sufficient medical knowledge to know what records are contained in hospital charts, how to obtain the charts and adequate knowledge to decipher and interpret the records. She had misgivings about her medical care well before she ordered the records.

[46] The plaintiff's husband, Mr. Polowin, maintains a blog. On at least one or two occasions, the plaintiff herself posted to this blog and that fact could raise an inference that she was aware of and shared Mr. Polowin's concerns. The blog demonstrates that Mr. Polowin was concerned about the medical care provided to the plaintiff from the moment he was told about the perforated bowel. In fact, he posted a series of criticisms to the blog and made complaints to the hospital in January of 2013. His communication described the ERCP as "botched" and indicated that the plaintiff's condition was not taken seriously by the doctors in [page514] emergency. He contacted patient advocacy and asked the hospital to review the entire course of treatment.

[47] Does this speculation and concern by her partner demonstrate knowledge on the part of the plaintiff herself? Certainly not before April of 2013, because until that time she was generally unconscious. The evidence shows, however, that Dr. Loy-English was suspicious about her medical care when she recovered consciousness and found she was still hospitalized. When she was transferred to St. Vincent in August of 2013, she knew she had suffered a perforation and life-threatening complications and she knew Mr. Polowin had concerns about her care. She certainly knew things had not gone well. She may not have known there was anyone specific to blame. It is not enough of course to know that medical procedures or care have had a bad outcome or to be unhappy with the result. That alone will not trigger the running of the limitation period. 21

[48] The plaintiff has no memory of the events that occurred in January and no personal knowledge of what care she received during the time she was in a coma or semi-conscious. She could only determine what was done or not done and who was involved in her care with any degree of precision by reviewing her medical records. We know when she obtained those records. The question is whether a qualified physician who has concerns, misgivings or even suspicion about the level of care has amassed the critical level of knowledge to trigger the limitation period without the records or should have obtained them sooner.

[49] The plaintiff was hospitalized for over almost eight months post-operation, and during that period she underwent additional surgery. Her evidence is that she remained very weak and incapacitated upon her release from hospital and was housebound until at least January of 2014. She continued to undergo treatment after she was discharged.

[50] By early 2014, the plaintiff was at home and was beginning to entertain visits from friends. The defendants point to a date in February when the plaintiff invited friends to build a snowman and in April of 2014 when she invited friends to watch Game of Thrones. It is far from clear that after a near death experience and eight months of hospitalization, the Act would construe the plaintiff as in possession of all of the necessary facts simply because she could socialize or watch television.

[51] It was in May of 2014 that the plaintiff actually began to seek out legal advice. She spoke with lawyers and eventually [page515] decided to retain Mr. Butler. In June of 2014, she was seeking surgical advice to determine if the ileostomy could be reversed. She retained counsel on July 7, 2014. She actually received her medical records towards the end of August 2014. It was only through review of those records that she became aware of the names and roles of various doctors. For example, the role of Dr. Kelly in approving her discharge when there were indications of bowel perforation was derived only from the chart.

[52] It would have been more diligent to order the medical records sooner of course. Similarly, she could have consulted a lawyer while still in hospital but the standard imposed by the Act is not a standard of perfection. It is a standard of reasonable diligence. When she did order her hospital chart, in June of 2014, it took over two months to obtain it. The plaintiff then had to review the records and consult with her lawyer. Even if I conclude that she should have ordered the records in March or April of 2014, she would not have had the information until after May of 2014. That would bring the second action within the limitation period.

[53] In my view, the plaintiff can establish that she acted with reasonable diligence. She obtained her medical records and retained counsel in a timely manner. Even if she should have done so marginally sooner, her evidence establishes that she could not reasonably have been in a position to identify the target defendants before May 20, 2014. On that basis, summary judgment cannot be granted to the defendant in respect of the second action. It does not appear that it was statute-barred when it was commenced in May of 2016.

[54] The plaintiff also argues that even if she had the chart or some of her medical records, it would not necessarily have been apparent that Dr. Fournier, the gastroenterology fellow, was the physician who was using the instrument when her duodenum was perforated. That is because many of the forms have blanks where the name of the physician should have been inserted. She continued to believe that Dr. Dahliwal performed the procedure until she received his statement of defence in September of 2015.

[55] In conclusion, the plaintiff has put forward sufficient evidence to demonstrate that she can overcome the statutory presumption with respect to the second action. The evidence demonstrates that the limitation period may not have begun to run until August of 2014, and certainly it had not begun to run in May of that year.

[56] All parties urged me to determine this issue one way or the other and not simply to dismiss the summary judgment motion. However, this was not a motion brought under rule 20.04(2) (b) [page516] and I am conscious of the difficulty in granting partial summary judgment discussed earlier in these reasons. I would be inclined to grant summary judgment on this point only if there is an undertaking not to appeal. No such undertaking was given.

[57] While an undertaking is not a prerequisite to granting summary judgment to the responding party, there are nevertheless good reasons to leave the final determination on the question of due diligence to the trial judge. This is because an analysis of what capacity the plaintiff had, what records she could have accessed and her cognitive state while in the hospital and afterwards is an analysis intimately related to questions of causation and to assessment of damages.

[58] In addition, while I have dealt with the claim against each of the defendants globally for purposes of this motion, the claim could potentially be discoverable against different defendants on different dates. The plaintiff has explained why she did not know that Dr. Fournier was operating the instrument at the moment of perforation (though of course it remains to be seen whether that is the finding at the trial) and why she knew nothing of Dr. Kelly's involvement until she read the hospital notes. Her knowledge of the involvement of other physicians and who was supervising each may be found to be based on different sources of knowledge.

[59] Accordingly, I find that the plaintiff has been successful in resisting summary judgment. There is good reason to believe that the limitation period had not expired when the second action was commenced and this is a genuine issue in which the plaintiff may well be successful. It is my determination that the question is most appropriately resolved at trial bearing in mind that the plaintiff has the evidentiary burden to displace the statutory presumption.

The Action Against Dr. Hébert

[60] Summary judgment with respect to the third action depends on answering two questions. First, is this a claim in which an expert opinion is a component of discoverability? Second, does delay in obtaining such an opinion represent a lack of reasonable diligence?

[61] The evidence clearly establishes that the statement of claim was issued within days of obtaining a confirming medical opinion. On behalf of the plaintiff, Mr. Hagen had consulted both an infectious disease specialist and an emergency treatment specialist. He obtained opinions on both causation and standard of care. Those opinions were to the effect that a delay in ordering [page517] antibiotics fell below the standard of care and may have been a significant causal factor in the development of septic shock.

[62] The evidence discloses that an expert opinion from an infectious disease specialist was requested in May of 2016, just before action number two was commenced. A verbal opinion was received on October 4, 2016 and subsequently confirmed in writing. A confirming opinion was requested from a specialist in emergency medicine and his opinion was provided on December 8, 2016. Action number three was then commenced.

[63] Discoverability may depend upon an expert report. 22 This will be so if standard of care or causation cannot be readily discerned. There are cases in which summary judgment has been granted against a plaintiff which lacks such evidence because expert evidence is frequently necessary to determine whether a specific act or omission falls below the standard of care for a medical speciality. 23 It is therefore prudent to obtain such an opinion before launching a claim and there are various cases which have held that this is a component of discoverability. 24 Whether that is so or not will depend on a case by case analysis and is a question of fact. 25

[64] The defendant suggests that to a physician such as the plaintiff, delay in administering antibiotics should have been readily apparent from the hospital records and the possibility that this was a significant error causally related to septic shock or other complications should not have required an expert. The plaintiff deposes that the issue of the antibiotics was not readily apparent to her. Her descent into delirium and then septic shock while being treated in emergency was complicated. There was a medication error in which she was administered contraindicated opioids and it is possible her deteriorating level of consciousness may have masked the septic shock. In any event, she deposes that until she saw the expert opinion she was not aware that Dr. Hébert's conduct fell below the standard of care expected of an emergency room physician and played a causal role in her poor outcome. [page518]

[65] If that is accepted then, unless the opinion should have been obtained earlier, the limitation period only began to run in October or December 2016. As mentioned earlier, however, it is only necessary that the plaintiff demonstrate she could not reasonably have known this information before December 16, 2014 in order for her to defeat the limitation defence.

[66] As in the previous discussion, the question is not whether the opinion could possibly have been obtained at an earlier date. The question is whether by the exercise of reasonable diligence, it should have been obtained before December of 2014. For purposes of this motion, I accept the plaintiff's evidence that she required an expert opinion on this point. As she did not receive her hospital chart until August of 2014, it would not be difficult to show she could not reasonably have obtained the opinion before December of that year.

[67] Of course the trial court may find that the limitation period for the second claim started to run in May of 2014 (or earlier since I have left the issue to be determined at trial). In that event, if the plaintiff should have had the hospital records three or four months earlier than she did, she could arguably have obtained the expert report before December of 2014 as well. As I have said, the standard the plaintiff must meet is reasonable diligence given her circumstances. It is not a standard of perfection or alacrity.

[68] In conclusion, the plaintiff's evidence on this point is also sufficient to survive summary judgment. This is a genuine issue that should be resolved by the trier of fact.

Conclusion

[69] In conclusion, the defendant's summary judgment motion is dismissed. It is a question of fact, depending on the circumstances of the case as a whole, as to when knowledge of the material fact or facts was acquired by the plaintiff. This is a genuine issue requiring a trial.

[70] As usual, counsel are invited to resolve the issue of costs amongst themselves.

[71] It is also evident that the misnomer motion should be brought as soon as possible because if it is successful it will remove expiry of the limitation period as an issue for trial.

[72] Counsel are to arrange a case conference to timetable the remaining steps so that these actions may be brought to a conclusion. I will give further direction regarding costs should that be necessary.

Motion dismissed.