2019 ONSC 392
Newmarket Court File No.: CV-10-099451-SR Date: 20190115
Ontario Superior Court of Justice
Between:
Estate of John Edward Graham (by his Executor Wesley Snowden), Barbara Lynn Graham, Scott Graham and Ashleigh Graham Plaintiffs – and – Southlake Regional Health Centre, Dr. Christopher Flynn, Dr. Christopher Gannage, Dr. L. Anthony Smart, and Nurses Jane Doe Defendants
Counsel: Donna Polgar and Scott Graham, for the Plaintiffs Rebecca Jones, and Robert Trenker, for the Proposed Defendant, Dr. Peter Law Patrick J. Hawkins, for the Defendant, Southlake Regional Health Centre Anthony J. Bedard, for the Defendants, Dr. Christopher Flynn and Dr. Christopher Gannage Andrew Lundy, for the Defendant, Dr. L. Anthony Smart
Heard: December 6, 2018
Reasons for Decision
DiTOMASO J.
Introduction
[1] The plaintiffs move to add Dr. Peter Law (“Dr. Law”) as a defendant to this medical negligence action after the expiration of the applicable limitation period.
[2] The action concerns medical care provided to John Edward Graham (“Mr. Graham”) on May 23 and 24, 2008 at Southlake Regional Health Centre (“Southlake”).
[3] Mr. Graham passed away on February 8, 2009.
[4] On May 20, 2010, the plaintiffs commenced this action against Southlake, Dr. Christopher Flynn (action later discontinued), Dr. Christopher Gannage (“Dr. Gannage”), Dr. Anthony Smart (“Dr. Smart”), and Nurses Jane Doe. The plaintiffs did not name Dr. Law as a defendant. The plaintiffs claim damages resulting from the defendants’ negligent failure to remove a medical sponge from Mr. Graham’s throat after dental surgery.
[5] The plaintiffs assert that their claim against Dr. Law was not known until early 2015 when Southlake delivered to the plaintiffs, various x-ray images taken and interpreted by Dr. Law, who is a radiologist.
[6] The parties agree that the principle of discoverability is irrelevant on this motion. Rather, the limitation period set out in s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 applies. This section provides that no action shall be brought after the expiration of two years from death of the deceased. In this case, the Estate’s claim expired on February 9, 2011, two years after Mr. Graham’s death.
[7] The parties also agree that the claims of Barbara Graham, Ashleigh Graham and Scott Graham, under the Family Law Act, R.S.O. 1990, c. F.3, are similarly time-marked, as the FLA claims are derivative claims which share a common limitation period with the principle action, ie: the claim of Mr. Graham’s estate. Scott Graham is the son of the deceased and also represents the plaintiffs.
[8] On February 24, 2015, Southlake’s counsel sent a CD containing Mr. Graham’s actual x-rays of May 23, 2008 to Scott Graham. Scott Graham was out of the country until late March 2015, having sustained a severe broken hip and was receiving physiotherapy and hydrotherapy.
[9] Scott Graham received and reviewed the CD in April 2015 and suspected the x-ray showed an obstruction in his father’s throat. On April 12, 2015, Scott Graham notified counsel for Southlake and counsel for Drs. Flynn and Gannage of the suspected airway obstruction and provided an email image to them.
[10] On July 20, 2015, Scott Graham spoke with counsel for Southlake and was advised that the same CD included a radiologist interpretation note. When the existence of this “Clinical Consultation Report” first became known is disputed. The plaintiffs assert that the first indication that Dr. Law reviewed the chest x-ray and was therefore a potential defendant arose during Scott Graham’s conversation with Southlake’s counsel on July 20, 2015. Scott Graham followed up in writing with Southlake’s counsel to obtain particulars regarding the x-ray review. However, Dr. Law contends that the plaintiffs first knew about what they call the “X-Ray Report” when this document was included in a package of medical records provided to the plaintiffs sometime between September and November 2008.
[11] Scott Graham went on to obtain an expert medical report from Dr. Amit Shah, who provided a verbal opinion that Dr. Law’s conduct, as well as the conduct of Drs. Flynn and Gannage, likely fell below the standard of care. Counsel for Drs. Flynn and Gannage were so informed by Scott Graham on April 14, 2016.
[12] On October 29, 2016, Scott Graham emailed counsel for Drs. Flynn and Gannage a copy of an amended statement of claim, seeking to add the proposed defendant, Dr. Peter Law, to the action.
[13] On November 3, 2016, Scott Graham followed up with said counsel and inquired if Dr. Law would consent to the motion. Copies were also sent to counsel for Southlake and Dr. Smart.
[14] On November 7, 2016, counsel for Drs. Flynn and Gannage replied that he required a motion record to discuss key dates with his clients in order to obtain instructions.
[15] On February 15, 2017, Scott Graham contacted Dr. Law and advised him that he would be moving to add Dr. Law as a defendant to this action.
[16] On February 21, 2017, approximately six years after the expiry of the applicable limitation period (February 9, 2011), the plaintiffs served their Motion Record to add Dr. Law as a party defendant and to amend the Statement of Claim. Thereafter, mistakenly, Scott Graham was cross-examined on August 21, 2017. Counsel for Dr. Law do not rely on the cross-examination, as such a step was not permitted pursuant to Rule 76.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194.
[17] This motion was originally scheduled to be heard in August of 2018. The motion was adjourned to December 6, 2018 to be heard by the court during the Fall sittings at Barrie.
Overview
[18] In addition to the chronology already cited, the following factual overview is provided.
[19] In May 2008, the deceased Mr. Graham was a retired veterinarian. He was 62 years old. He was blind, non-verbal and had a history of recent seizures. He suffered from advanced early Alzheimer’s disease and he lived in a nursing home. Mr. Graham was in need of some dental care and, to this end, on May 23, 2008 he was taken to Southlake for dental surgery. Dr. Smart performed the surgery which took about an hour. Dr. Flynn was the anesthesiologist. After surgery, Mr. Graham was taken to the recovery room and then was discharged.
[20] While in the lobby of the hospital, seated in a wheelchair waiting to be returned to the nursing home, he was found choking and in distress. He was taken to the emergency room and treated by Dr. Gannage, after which Mr. Graham was released and returned to the nursing home.
[21] Later, during the early hours of May 24, 2008, Mr. Graham could not breathe and was returned to Southlake. Dr. Silverstein, who is not a party to this action, treated Mr. Graham by removing with forceps, a surgical sponge which was obstructing Mr. Graham’s throat.
[22] Subsequently, Mr. Graham’s behaviour changed. His pharynx had suffered damage and he was unable to chew or swallow. He could not accept a feeding tube.
[23] Mr. Graham died on February 8, 2009.
[24] On July 25, 2008, a meeting was held at Southlake involving the Graham family members, Dr. Gannage, Dr. Smart and Southlake representatives. Dr. Law was not in attendance.
[25] The Graham family wanted answers regarding Mr. Graham’s choking incident and airway obstruction. Dr. Gannage informed the family what treatment was provided to Mr. Graham. The meeting was documented by Southlake.
[26] In the report of the meeting, there was no reference of a choking incident from the nurses’ notes, no reference to x-ray or x-rays being ordered by Dr. Gannage (which he did so order), no reference to the involvement of Dr. Law, the radiologist who took x-rays of Mr. Graham.
[27] On August 28, 2008, Ms. Graham requested her husband’s medical records from Southlake, as they related to his dental surgery and the choking incident.
[28] Between September and November 2008, the Graham family received approximately 200 pages of medical records. Amongst these records was a Clinical Consultation Report, dated May 23, 2008. This report indicates Dr. Gannage ordered: XR Chest 1 view portable – CH ORD Diag: unwell
[29] The report identifies Peter Law, F.R.C.P. (C), as the person who read and released the “XR”. We know that Dr. Law is a radiologist. However, these records did not include a copy of the x-ray requested by Dr. Gannage. The report only references an “XR” of Mr. Graham’s chest area.
[30] The plaintiffs submit that the x-ray shows a surgical sponge (or gauze packing) obstructing Mr. Graham’s throat/airway, later removed on May 24, 2008 by Dr. Silverstein.
[31] On May 20, 2010, a Statement of Claim was issued against Southlake, Drs. Flynn, Gannage and Smart, and Nurses Jane Doe.
[32] On February 23, 2015, Southlake discloses x-ray imaging and the clinical consultation report, dated May 23, 2008, imbedded in the medical records produced in the Fall of 2008 but, according to Scott Graham, not yet discovered by him.
[33] On April 12, 2015, after rehabilitation from a serious injury sustained outside of Canada, Scott Graham received the letter from Southlake’s counsel and the enclosed CD which included the x-ray imaging.
[34] The parties agree that the letter and CD from Southlake’s counsel was not solicited by Scott Graham and unexpectedly was received by him. No one could provide this court with any explanation as to how, almost seven years after Mr. Graham was treated at Southlake (May 23/24, 2008), Mr. Graham’s x-ray materializes in the hands of Scott Graham.
[35] On that same day (April 12, 2015), Scott Graham sent a copy of the x-ray to other counsel circling the area on the x-ray around the image of his father’s neck.
[36] On July 20, 2015, counsel for Southlake spoke with Scott Graham and advised him that the CD also had a program to access a radiologist interpretation note. No one could offer to this court a further explanation as to why, approximately two months after the receipt of the CD, a further disclosure by Southlake was made to the plaintiffs about a program to access the radiologist’s consultation note from the CD.
[37] While speaking with Southlake’s counsel, Scott Graham accessed the program and located the clinical consultation report, dated May 23, 2008, previously referred to.
[38] It is submitted that Scott Graham did not know Dr. Peter Law was a physician and not know the clinical consultation report was an x-ray report ordered by Dr. Gannage and generated by Dr. Law. No reference of any x-ray or x-ray report or involvement of Dr. Law was made at the July 25, 2008 meeting with the Graham family at Southlake. To the contrary, Dr. Law submits that the plaintiffs ought to have known about the clinical consultation report and the involvement of Dr. Law when they received the package of medical records in the fall of 2008.
[39] After Scott Graham spoke with Southlake’s counsel about the Clinical Consultation Report, he notified other counsel and made sure they had a copy of the report. He then began the process to retain an expert in late 2015 and early 2016. He obtained a verbal opinion from Dr. Amit Shah, who opined that Dr. Gannage and Dr. Law fell below the standard of care and disclosed same to other counsel on April 14, 2016.
[40] Some examinations were mistakenly conducted in 2016.
[41] Scott Graham attempted unsuccessfully to secure consent from other counsel whether they agreed to add Dr. Law as a party defendant.
[42] Scott Graham provided counsel with his draft Amended Statement of Claim to add Dr. Law as a party defendant on October 29, 2016.
[43] On November 7, 2016, counsel for Dr. Gannage advised Scott Graham that he would require a motion record, regarding which he would seek instructions.
[44] On February 15, 2017, Scott Graham contacted Dr. Law and advised that he would be moving to add Dr. Law as a party defendant.
[45] This motion originally was to be heard in August of 2018 was adjourned to be heard on December 6, 2018.
The Issue
[46] The issue to be determined is whether the plaintiffs’ action against Dr. Law is statute-barred by the Trustee Act.
Positions of the Parties
Position of the Plaintiffs (Moving Party)
[47] The Plaintiffs acknowledge that the limitation period applicable to this action is that set out in s. 38(3) of the Trustee Act and that the discoverability principle does not apply to the limitation period set out by this statute. However, they assert that the Doctrine of “Special Circumstances” and the Doctrine of Fraudulent Concealment apply and should permit them to bring their claims against Dr. Law over six years after the expiry of the limitation period (February 9, 2011).
[48] The Plaintiffs submit there is no prejudice to the proposed defendant and that special circumstances do exist in this case. They raise an alternative argument that the defendants sought to fraudulently conceal the incriminating evidence of the retained sponge. Aside from fraudulent concealment, they contend this factor may also be relied upon to make a finding that special circumstances exist. They submit that Dr. Law be added as a defendant to the Amended Statement of Claim.
Position of the Proposed Defendant, Dr. Peter Law
[49] Dr. Law submits this is not one of those narrow exceptions to the general rule that actions cannot be brought after the expiration of the limitation period.
[50] It is submitted the plaintiffs have failed to (i) rebut the presumption of prejudice to Dr. Law, and (ii) demonstrate anything which could reasonably be characterized as “special” circumstances.
[51] Further, it is submitted there is no basis to support the plaintiffs’ bald allegations that the existence of a cause of action against Dr. Law was fraudulently concealed. On behalf of Dr. Law, it is submitted that the plaintiffs’ motion be dismissed with costs.
Analysis
The Trustee Act
[52] Section 38(1) of the Trustee Act provides that an estate can maintain an action in tort for injury caused to the deceased with the same rights and remedies as the deceased would have had if they remained alive.
[53] However, s. 38(3) of the Trustee Act provides that no action can be commenced by an estate after the expiration of two years from the death of the deceased. The discoverability principle does not apply to this two year limitation period (Waschkowski v. Hopkinson Estate at paras 16 and 18; and, Bikur Cholim Jewish Volunteer Services et al v. Langston et al, 2009 ONCA 196 at para 25).
[54] The Ontario Court of Appeal has held that claims under the Family Law Act are derivative claims whose limitation period is governed by the limitation period of the principle action (Smith Estate v. College of Physicians and Surgeons of Ontario at para. 38).
[55] The parties agree that the Trustee Act, and specifically s. 38(1) and 38(3) prevail and if the principle claim fails by operation of the Trustee Act limitation period, then the Family Law Act derivative claims also fail.
[56] However, where the Doctrine of Special Circumstances or the Doctrine of Fraudulent Concealment apply, the amendment of pleadings after the expiration of a limitation period may be justified. Such circumstances will arise infrequently (Basarsky v Quinlan, [1978] S.C.R 380 at para 12).
[57] More recently, in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, the Supreme Court of Canada described the equitable Doctrine of Special Circumstances as a “narrow exception” to the general rule. The court reiterated that the circumstances warranting an amendment at a party to a statement of claim after the expiry of the relevant limitation period “will not often occur.” (at paras 112 to 114).
The Doctrine of Special Circumstances
[58] Where a plaintiff seeks to add a party after the expiration of a limitation period, the onus is on the plaintiff to both: (a) rebut the presumption of prejudice; and, (b) demonstrate that there are special circumstances which justify the addition of the parties (Mazzuca v. Silver Creek Pharmacy Ltd. at para. 37).
Have the Plaintiffs Rebutted the Presumption of Prejudice?
[59] As the Court of Appeal in Mazzuca summarized: Both the related jurisprudence and the rules themselves thus underscore a simple, common-sense proposition: that a party to litigation is not to be taken by surprise or prejudiced in non-compensable ways by late, material amendments after the expiry of a limitation period. If such surprise or actual prejudice is demonstrated on the record, an amendment generally will be denied. (at para. 41)
[60] The Court of Appeal has repeatedly confirmed that the loss of a limitation defence gives rise to a presumption of prejudice (Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3 at para 28; and, Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 at para. 27).
[61] In our case, Dr. Law had no notice of the litigation prior to the expiration of the litigation period. I find an inference of prejudice to him is warranted.
[62] I accept Dr. Law had no knowledge of this action or that any issue had been raised concerning the case until February 15, 2017 when he was contacted by Scott Graham – approximately six years after the expiration of the limitation period (February 9, 2011).
[63] Dr. Law submits that prejudice does arise from such a long delay and an inference of prejudice is warranted. It is submitted the plaintiffs’ motion must fail on the basis of the plaintiffs’ failure to rebut the presumption of prejudice.
[64] I disagree. Notwithstanding the long passage of time and the inference raised in favour of Dr. Law, I find the plaintiffs have rebutted the presumption of prejudice. I do not agree that the presumption of prejudice is unassailable solely due to the passage of time. There are other factors to be weighed. Dr. Law has not offered any evidence to show any non-compensable prejudice if the amendment is granted. Rather, the evidentiary record on this motion establishes the following:
- Medical records from Southlake, including x-ray imaging are preserved by Southlake and remain in each of the parties’ legal files;
- Counsel for the proposed defendant, Dr. Law, has collaborated with counsel for the defendant, Dr. Gannage, in accessing pleadings and documents;
- The claim against Dr. Gannage (ER physician), for negligently reading the x-ray is the same as the claim against the proposed defendant radiologist, Dr. Law;
- This case does not have a complicated or highly contentious factual matrix. The critical issue is whether the proposed defendant, Dr. Law, negligently missed a retained medical sponge when reviewing the x-ray. No new cause of action or relief is being raised;
- The same medical evidence to be relied on by the plaintiffs to prove their claims remains in the possession of the defendants to defend the action. The defendants are compellable witnesses to attend for trial;
- All defendants continue to practice health care in Ontario;
- The action against Dr. Law is tenable in law;
- Dr. Law is a proper defendant to be added, since there are multiple expert reports indicating he was responsible for negligently misreading the x-rays and not seeing the radiopaque surgical sponge;
- No trial date has been set;
- All defendants will have sufficient time to prepare their defences;
- Dr. Law will have the benefit of the work and investigation done by his co-defendants; and,
- There are no steps in the prosecution or defence of this action that will be thwarted through lack of evidence or information.
[65] For these reasons, I find the plaintiffs have met their onus and have rebutted the presumption of prejudice.
Have the Plaintiffs Established Special Circumstances?
[66] Dr. Law submits that the plaintiffs have not established special circumstances. I disagree. Where the presumption of prejudice has been rebutted, as in this case, the plaintiffs still bear the onus to demonstrate that there are special circumstances which justify the addition of Dr. Law as a party defendant.
[67] Dr. Law submits that no special circumstances exist in this case to justify this court exercising its power to set aside the functioning of an applicable limitation period.
[68] The special circumstances doctrine was considered in Wisniewski v. Wismer and Wohlgemut, a decision of Edwards J. for oral reasons given on February 1, 2018.
[69] In Wisniewski, as in our case, the plaintiffs sought to add the proposed defendants (radiologists) after the expiration of the limitation period set out in s. 38(3) of the Trustee Act. The parties agreed that the discoverability principle did not apply to this limitation period, as they did in our case. Further, the parties agreed that the limitation period had expired.
[70] As in our case, the plaintiffs submitted that the proposed defendants be added and pleadings be amended, all after the expiration of the limitation period on the basis of the Doctrine of Special Circumstances.
[71] Dr. Law submits there are no special circumstances here to warrant the exercise of the court’s discretion.
[72] In Wisniewski, Edwards J. was not satisfied that the plaintiffs had rebutted the presumption of prejudice. Further, he also found there was no evidence to suggest the plaintiffs and their counsel were precluded from commencing a claim against the proposed defendants within the applicable limitation period due to a lack of information.
[73] The key finding in Wisniewski was that almost five months prior to the expiry of the limitation period, the plaintiffs were in possession of x-ray reports and that plaintiffs’ counsel had the necessary information to conclude the proposed defendants should be added as defendants. Edwards J. found there were no special circumstances that would justify the exercise of the extraordinary remedy to add a party after the expiry of the limitation period and he dismissed the motion to add the proposed defendants to amend the statement of claim.
[74] I am of the view that Wisniewski is distinguishable from our case. In Wisniewski, the plaintiffs knew the deceased had been radiographed before the limitation period expired. In our case, the radiographs were provided to the plaintiffs, not at the outset, but approximately six and a half years later.
[75] The plaintiffs in our case were precluded from commencing an action against Dr. Law, since they never knew any radiograph existed or that Dr. Law interpreted such a radiograph.
[76] I find there was no knowledge Dr. Law took a radiograph or radiographs of Mr. Graham and interpreted those images until the plaintiffs were advised by counsel for Southlake, provided to Scott Graham with the CD under cover of the letter dated February 23, 2015, which Scott Graham reviewed on April 12, 2015. This critical disclosure occurred over four years after the expiration of the limitation period being two years after the date of Mr. Graham’s death on February 8, 2009.
[77] This disclosure by Southlake came “out of the blue”. No explanation was provided to this court by anyone, especially by the defendants for such late production. This disclosure was critical as it enabled Scott Graham to see the radiograph for the first time and connect what he viewed with what he was subsequently told about the Clinical Consultation Report during his conversation with Southlake’s counsel on July 20, 2015. All of this concerned the possible involvement of Dr. Law.
[78] Contrary to the findings in Wisniewski, in our case it cannot be said that the plaintiffs had been “handicapped” by their own “inaction”. In our case, the plaintiffs not only requisitioned a care conference to identify the parties responsible for the critical choking incident, but also they quickly sought to obtain and assess all relevant medical records through submitting a timely records request at the outset and well within the limitation period.
[79] In our case, the CD and program to access the CD, and disclosure of the x-ray or x-rays were inexplicably not produced until well after the limitation period had expired. There is no question that the defendants failed to disclose at the care conference that radiographs of Mr. Graham were taken by Dr. Law and that Southlake, despite receiving a records request in 2008, failed to disclose the key x-ray until 2015.
[80] While Dr. Law was unaware of this action until he was contacted by Scott Graham in February 2017, the chronology of events provides a satisfactory explanation as to what was done after February 2017, including some unnecessary and mistaken proceedings, the delivery of a draft amended statement of claim, the request for consent adding Dr. Law as a party defendant and the plaintiffs’ ultimately being compelled to bring this motion.
[81] I find the plaintiffs have established special circumstances which are exceptional in nature. The late, critical and unexplained disclosure by Southlake in 2015, well after the expiration of the limitation period provided the plaintiffs with the revelation of Dr. Law’s involvement in the treatment of Mr. Graham. I find the facts establish that the plaintiffs were unaware of Dr. Law’s involvement until April and again in July 2015.
[82] In addition, I have once again reviewed those factors which I considered in deciding whether the plaintiffs had rebutted the presumption of prejudice.
[83] In exercising my discretion in allowing such an amendment to add Dr. Law, I must also consider procedural fairness. I conclude that there will be no procedural unfairness when all of those previous factors have been taken into account.
[84] Accordingly, I find the plaintiffs have satisfied their onus in both rebutting the presumption of prejudice and establishing special circumstances in support of this motion to add Dr. Law as a party defendant and to amend the statement of claim.
The Involvement of CMPA
[85] The plaintiffs suggest that the fact that Dr. Law and the named defendants have the same “insurer”, the Canadian Medical Protective Association (“CMPA”), demonstrates an absence of prejudice to Dr. Law and itself constitutes special circumstances. I reject this argument.
[86] I am not prepared to infer that the CMPA is the defendants’ and Dr. Law’s common effective insurer in this case. I am not satisfied there is sufficient or any evidence before me to conclude that Dr. Law had, or reasonably ought to have had, knowledge of the existence of this litigation prior to the motion. The evidence is quite to the contrary. I find there is no basis upon which to impute knowledge to Dr. Law prior to this motion being brought.
Does the Doctrine of Fraudulent Concealment Apply?
[87] I find the Doctrine of Fraudulent Concealment does not apply in this case.
[88] In order for the Doctrine of Fraudulent Concealment to apply, the plaintiffs must establish that: (a) the defendants and plaintiffs had a special relationship with one another; (b) given the special or confidential nature of the relationship, the defendants’ conduct is unconscionable; and, (c) the defendants conceal the plaintiffs’ right of action actively or the right of action is concealed by the manner of the defendants’ wrongdoing (Colin v. Tan, 2016 ONSC 1187 at para. 45).
[89] I find the elements of the above test are not clearly met in this case.
[90] The plaintiffs allege that the original defendants fraudulently concealed the plaintiffs’ right of action against Dr. Law by failing to advise them that Dr. Law was negligent or liable.
[91] I find there is no evidence that the original defendants acted to shield Dr. Law or acted in a manner which consciously obviated the availability of a potential claim against him.
[92] Even if the plaintiffs could advance evidence of fraudulent concealment in relation to the original defendants, which they have not, this evidence would only provide the plaintiffs with a cause of action against those defendants. It would not in any way permit a claim against Dr. Law.
[93] Further, as there is no evidence of fraudulent concealment, fraudulent concealment is not a factor to be considered when determining special circumstances.
Conclusion
[94] For these reasons, there shall be an order amending the statement of claim to add Dr. Peter Law as a party defendant.
[95] As for costs, if the parties cannot agree upon costs, within seven days from the date of these Reasons, the plaintiffs shall serve and file a concise two-page summary regarding costs, together with a costs outline, Bill of Costs and any authorities. The proposed defendant shall have seven days thereafter to serve and file the same materials. If any reply is required, the plaintiffs shall serve and file their reply within five days of proposed defendant’s submissions. All materials by the parties are to be filed with my judicial assistant at Barrie.
G.P. DiTomaso J.