COURT FILE NO.: CV-16-00000517-0000

DATE: 20210705

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMANDA JANE ANDREWS and KERI ANN BAKER, personally an as Estate Trustees of the Estate of LINDA GORDON, WILLOW MAY BAKER, TOBIN BRYON BAKER and VIOLET GRACE BAKER, all by their Litigation Guardian JEFFREY ROBERT BAKER, SARA NICOLE ANDREWS and EMILY LYN ANDREWS

Plaintiffs/Responding Parties

– and –

DR. LESLIE PATTISON

Defendant/Moving Party

Joni Dobson, for the Plaintiffs/Responding Parties

John A. M. Petrella, for the Defendant/Moving Party

HEARD: June 23, 2021

Mccarthy j.

REASONS ON MOTION FOR SUMMARY JUDGMENT

Introduction

[1] The Defendant moves for summary judgment in this delayed diagnosis medical malpractice case.

[2] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 directs that a court shall grant summary judgment where there is no genuine issue requiring a trial.

[3] The Defendant seeks a dismissal of the action on the basis that the Plaintiffs and the late Linda Gordon (“the deceased”) discovered a potential claim against him more than two years before their statement of claim was issued on April 11, 2016.

[4] This is the only issue for the court’s determination on the motion. There can be no question that a dismissal of the claim must follow upon a finding that the action was not brought within the relevant limitation period. There would be no genuine action requiring a trial because the action itself would be statute barred.

Governing Legislation

The Limitations Act

[5] Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act”) provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim is discovered.

[6] Section 5(1) of the Act states that 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 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 abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[7] The “subjective test” set out in s. 5(1)(a) of the Act is conjunctive. The “objective test” in s. 5(1)(b) requires an analysis based upon the fictitious reasonable person.

Summary Judgment

[8] The law of summary judgment is governed by both rule 20.04, and the principles and procedures laid out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. The Supreme Court determined that a judge hearing such a motion need only be confident that she can find the necessary facts and apply the relevant principles on the basis of the record before her. Summary judgment should be granted unless the added expense and delay of trial is necessary for a fair and just adjudication of the matter. The Court went on to state that the fact-finding powers afforded by rule 20.04(2.1) to evaluate credibility, weigh evidence and draw inferences should be used by the motions judge if doing so will serve the goals of timeliness, affordability and proportionality: Hryniak, at paras. 44-45.

Factual Background

[9] The deceased received medical attention and treatment from the Defendant between 2009 and 2013. During that time, the deceased was reporting shortness of breath and chest pain. It was not until May 2013 that the deceased underwent an x-ray which identified a right pleural effusion with associated atelectasis and/or consolidation. A biopsy on May 29, 2013 confirmed a diagnosis of lung cancer.

[10] On June 11, 2013 the deceased attended at an appointment with the Defendant in the company of her daughter, the Plaintiff Amanda Andrews. Ms. Andrews expressed frustration and concern to the Defendant that a chest x-ray had not been done earlier.

[11] The deceased went on to request and receive her medical chart from the Defendant in September or October of 2013. At about the same time, the deceased’s son-in-law, the Plaintiff Jeffrey Baker, began to contact lawyers. This led to a referral to the Plaintiffs’ present counsel Barbara MacFarlane, whom they understood to be a lawyer with some expertise in claims against medical care providers. Ms. MacFarlane received the medical chart on November 6, 2013 and subsequently met with Mr. Baker early in January 2014. According to the testimony of Mr. Baker, the meeting with counsel was born out of concerns that, “….the care Linda received from Dr. Pattison was substandard or it wasn’t good enough”, and more specifically, “…the fact that Linda had trouble breathing for many years and Dr. Pattison never sent her for a chest x-ray.”

[12] The deceased herself met with Ms. MacFarlane on February 6, 2014. In testimony offered after her mother’s demise, the Plaintiff Keri Ann Baker explained that her mother sought consultation with counsel, “…because she thought if she had a chest x-ray or maybe had been taken more seriously about her shortness of breath then maybe she would still be here or had an extended life or not suffering.”

[13] During a February 6, 2014 meeting with the deceased and Jeff Baker, Ms. MacFarlane explained the concepts of negligence, causation and the importance of expert opinions in medical malpractice matters.

[14] The deceased succumbed to cancer on April 18, 2014. Before her death, she communicated her desire to Jeff Baker and her two daughters that they continue the process with the lawyer she had retained to see if there might be a lawsuit against the Defendant.

[15] The Plaintiffs obtained their standard of care and causation reports in August and December 2015 respectively.

[16] The within claim was issued on April 11, 2016. In the Statement of Defence, the Defendant alleged that the claim was barred by the expiration of the relevant limitation period. In their reply to that pleading, the Plaintiffs asserted that they were not aware, nor ought to have been aware, of a potential negligence claim against the Defendant prior to the death of the deceased.

Discoverability

[17] In Lawless v. Anderson, 2011 ONCA 102, at paras. 22-23, the Ontario Court of Appeal cited earlier appellate decisions and made it clear that determining when a claim has been discovered is a fact-based inquiry. The court also stated, at para. 23:

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 begins to run.

[18] More recently, the Court of Appeal in Dale v. Frank, 2017 ONCA 32, at para. 7, leave to appeal refused, 2017 CarswellOnt 15891 (S.C.C.) has confirmed that once a prospective plaintiff knows enough facts upon which to ground an allegation of negligence against a person, the claim has been discovered and the limitation period begins to run. The plaintiff need not discover that a Defendant’s act or omission was culpable for the losses it suffered.

[19] It is also well settled that the commencement of the limitation period does not depend upon the plaintiff knowing with certainty that the Defendant’s conduct was negligent or that the claim is likely to succeed: see Barry v. Pye, 2014 ONSC 1937, at paras. 14, 44 and Kowal v. Shyiak , 2012 ONCA 512, at para. 18.

[20] The Supreme Court of Canada has made it clear that expert medical evidence is not required for a trier of fact to make a finding on causation in medical malpractice cases since that issue is a question of fact: see Snell v. Farell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at pp. 568-69.

[21] Finally, and of particular significance for this case, the court in Lawless, at para. 36 stressed that a plaintiff discovers a claim once in possession of, “…sufficient facts upon which she could allege negligence. Additional information will support the claim and assess the risk of proceeding, but it is not needed to discover the claim.”

Analysis

[22] I find that I can determine this matter on the evidentiary record before me. That evidentiary record satisfies me that a trial judge would be in no better position than am I to determine the matter on its merits.

[23] I find that the evidence overwhelmingly establishes that both the deceased and the other adult Plaintiffs had sufficient knowledge of the facts upon which to base a claim against the Defendant as far back as May 30, 2013 and certainly no later than February 6, 2014.

[24] I recognize, as stated by the Court of Appeal in Lawless, at para. 24, that in some medical malpractice cases, the plaintiff may require advice from a person who is medically trained. The court there referred to the decision of Speyer J. in Patterson v. Anderson (2004), 2004 CanLII 21532 (ON SC), 72 O.R. (3d) 330 (S.C.). In Patterson, however, the plaintiff had made a complaint to the College of Physicians and Surgeons and it was only following the decision from that body that the plaintiff was able to discover the facts needed to issue a claim in negligence. The trial judge found that the specific factual allegations disclosed by the College’s report were simply unknown to the plaintiff prior to its receipt. Since those factual allegations formed the core of her claim of substandard medical treatment, the limitation period did not begin to run until their discovery.

[25] I would distinguish Patterson. In the case at bar, neither the standard of care report nor the causation report contained any new facts which had previously not been brought to light. The facts of the case were the same in 2015 as they had been back in May 2013. Nor is this a case where the Plaintiffs needed further medical records to discover the claim. Those were made available to the deceased in August or September 2013 and to her chosen counsel shortly thereafter. There were no other records; there were no other facts to discover.

[26] No reasonable view of the evidence could lead to any other conclusion than that both the deceased and the Plaintiffs were in possession of all the material facts needed to ground allegations of negligence and causation against the Defendant. One, the deceased was under the care of the Defendant for several years before she was diagnosed with cancer. Two, the deceased made complaints of chest pain and shortness of breath in those years. Three, the Defendant did not order a chest x-ray until May 2013. Four, the chest x-ray and the biopsy which followed lead to a diagnosis of advanced lung cancer on or about May 29, 2013. Four, the deceased and her family were immediately concerned and upset that a chest x-ray had not been previously ordered. Five, the deceased questioned whether an earlier x-ray might have resulted in a different outcome. Six, faced with the diagnosis and armed with both their collective concerns and the complete medical records obtained in August or September 2013, they sought legal advice almost immediately. Seven, Mr. Baker conceded that the family sought that legal advice because of concerns about the Defendant’s failure to order an earlier chest x-ray in response to the deceased’s complaints. Finally, through to the time of her death in April 2014, the deceased intimated to the family members her desire that they pursue the matter through with her chosen counsel.

[27] It is worth noting that the sworn evidence of the deceased’s daughters and son-in-law mirrors the allegations in the statement of claim, specifically the failure of the doctor to order chest x-rays in 2009, 2010, 2011 and 2012 to investigate the deceased’s complaints of shortness of breath and chest pain. Since they knew that to be the case by no later than September 2013, they were in possession of enough material facts upon which to base allegations of negligence.

[28] The evidence is unequivocal that the deceased and her family recognized that litigation was an appropriate avenue to seek redress for their concerns. They sought a consultation with a medical malpractice lawyer within months of the May 29, 2013 diagnosis and their accompanying concerns with Dr. Pattison’s failure to order a timely x-ray, and within weeks of receiving the deceased’s medical chart. The case law is clear that discovery of a claim against a defendant does not depend on a lawyer advising a plaintiff that there is a valid cause of action: see Barry, at para. 71.

[29] As well, discovery of the facts upon which a claim may be based must be distinguished from discovering the merits of the claim itself. The former is a far lower threshold. The latter may occur before or during the prosecution of the claim. While the court should never encourage frivolous or groundless claims, there are rules of court to address such claims and prevent them from proceeding. One must acknowledge that in enacting the Act, the Legislature’s intention was to provide finality and certainty in civil liability. Civil liability must be determinate; accordingly, the time to commence a civil action in Ontario must be finite. In my view, it would subvert the intention of the Legislature to hold that a limitation period should only begin to run when a claim is subjectively or even objectively meritorious. The Act does not distinguish between meritorious and non-meritorious claims. It speaks of discoverability of claims not the quality or merit of those claims.

[30] Returning to the conjunctive test in s. 5(1)(a), I find that the evidence before me firmly establishes that when the x-ray and subsequent biopsy led to a terminal cancer diagnosis on May 29, 2013 the unfortunate deceased realized that damage had occurred. If it did not occur to her in that moment, it certainly occurred to both the deceased and her family in the days and weeks which followed that the damage had been caused by the Defendant’s failure to order a chest x-ray in the months and years prior to May 2013. Undoubtedly, they would have been capable of confirming this omission once they received the medical records in September 2013. Since Dr. Pattison was the only one providing care to the deceased prior to the cancer diagnosis, the omission could only have been his. Finally, the evidence makes it clear that having sought and received legal consultation from a medical malpractice lawyer, the deceased and the Plaintiffs would have known that a legal proceeding was an appropriate means by which to seek a remedy.

[31] At the earliest then, the deceased and her family had discovered the claim by May 30, 2013; at the latest, it was discovered by February 6, 2014. Either way, the two-year limitation period for bringing a claim against the Defendant had expired by the time the claim was issued on April 11, 2016.

[32] There remains the issue of whether the limitation period was tolled by operation of s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 as amended. Argument on that issue was not pursued at any length and with very little conviction by Plaintiffs’ counsel in submissions. This was for good reason: the Ontario Court of Appeal stated clearly in Camarata v. Morgan, 2009 ONCA 38, at para. 8 that s. 38(3) of the Trustee Act, “cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action.”

Conclusion and Disposition

[33] I find and conclude therefore that both the deceased and her family (the adult Plaintiffs) had actual knowledge of the facts upon which allegations of negligence could be based as early as May 30, 2013 and no later than February 6, 2014. The claim having been issued on April 11, 2016, it is barred by operation of the Limitations Act, 2002. There is no genuine issue requiring a trial and the action must be dismissed. The claims of the minors being derivative, they too cannot survive the expiration of the limitation period.

[34] The action is therefore dismissed; there shall be judgment accordingly.

Costs

[35] The parties made some submissions on costs. In light of the quantum being sought by the Defendant for the entirety of the action, the court requires more robust submissions from both sides. Should the parties be unable to arrive at an agreement on that outstanding matter, I would invite written submissions on the issue of costs according to the following timetable:

(a) submissions of the Defendant limited to 5 pages (not including attachments) on or before July 30, 2021;

(b) submissions of the Plaintiffs limited to 3 pages (not including attachments) on or before August 13, 2021; and

(c) reply submissions of the Defendant, if any, on or before August 20, 2021 limited to 1 page.

McCarthy J.

Released: July 5, 2021