Court File and Parties

Court File No.: CV-16-565629 Date: 2022-08-26 Superior Court of Justice – Ontario

Re: Isha Joshi, a minor by her Litigation Guardian, Sejal Joshi, Thillainathan Kathiravelu, and the said Sejal Joshi personally, Plaintiffs And: U. Chada, L. Padmore, and J. Does 1-3, Defendants

Before: Justice Glustein

Counsel: Hilik Y. Elmaleh and Jeremy M. Syrtash, for the plaintiffs Dorothy E. Charach and Natalie V. Kolos, for the defendants

Heard: August 9, 2022

Reasons for Decision

Nature of Motion and Overview

Nature of motion

[1] The defendants Dr. Padmore and Dr. Chada bring the present motion for summary judgment to dismiss the claims brought by the plaintiffs.

[2] The claims arise out of the birth of the plaintiff Isha Joshi (“Isha”) at Scarborough General Hospital (“SGH”) on December 16, 2003. Isha was born with spina bifida with myelomeningocele, a neural tube defect (“NTD”). Her condition has resulted in significant, lifelong impairments, including developmental delay, confinement to a wheelchair, and other major medical conditions requiring hospitalizations.

[3] The plaintiffs Sejal Joshi (“Sejal”) and Thillainathan Kathiravelu[^1] are Isha’s mother and father, respectively.

[4] Dr. Padmore was Sejal’s obstetrician and Dr. Chada was Sejal’s family physician.

[5] The defendants submit:

(i) Sejal’s “wrongful birth” claim is statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”); and

(ii) Isha’s “wrongful life” claim fails to disclose a cause of action.

Overview of wrongful birth claim

[6] For the reasons that follow, I agree with the plaintiffs and dismiss the defendants’ motion for summary judgment on Sejal’s wrongful birth claim.

[7] On September 4, 2003, Sejal attended at an appointment (the “September 2003 Appointment”) with Dr. Padmore to review the results of an ultrasound conducted on August 23, 2003 (the “Ultrasound”).[^2] The Ultrasound report of Dr. Tomash dated August 25, 2003 (the “Ultrasound Report”) disclosed the presence of spina bifida.

[8] The parties disagree about whether, at the September 2003 Appointment, Dr. Padmore disclosed the results of the Ultrasound or whether he advised Sejal that the Ultrasound was “clear”. There is a genuine issue of credibility as to whether Dr. Padmore failed to disclose the spina bifida results, as well as the risks of birth and Sejal’s options, including terminating the pregnancy.

[9] Upon Isha’s birth, which involved severe complications and required surgery, Sejal was told by hospital staff in late 2003 that the Ultrasound “should have” indicated the presence of spina bifida. Sejal understood that Dr. Padmore “should have” detected the spina bifida on the Ultrasound Report and advised her accordingly.

[10] Consequently, there is no genuine issue requiring trial as to whether the limitations period began to run by December 2003, regardless of the alleged discussions at the September 2003 Appointment. Based on her discussions with hospital staff, Sejal had sufficient “knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's part can be drawn”: Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at para. 3.

[11] However, the limitations issue in this action turns on the discussion between Sejal and Dr. Padmore at an appointment in January 2004 (the “January 2004 Appointment”), after Sejal learned that (i) the Ultrasound should have disclosed the spina bifida, and (ii) Dr. Padmore should have disclosed the results to her.

[12] There is a genuine issue of credibility as to whether Dr. Padmore again advised Sejal at that January 2004 Appointment that the Ultrasound was “clear”. Dr. Padmore has no notes of the conversation and medical records after that date are contradictory.

[13] The defendants submit that even if Dr. Padmore misrepresented (at the January 2004 Appointment) that the results of the Ultrasound were clear, the limitation period that began in late December 2003 would continue to run. The defendants submit that despite Dr. Padmore’s alleged statement, Sejal could have insisted on seeing the Ultrasound Report, retained a lawyer to assist her, or taken other steps to confirm the results of the Ultrasound Report.

[14] The plaintiffs submit that if a trial court accepted Sejal’s evidence, then the limitation period would be tolled after Dr. Padmore advised Sejal, at the January 2004 Appointment, that Isha was born with spina bifida despite a “clear” Ultrasound. The plaintiffs submit that Sejal took reasonable steps to investigate her concerns about the Ultrasound, and reasonably relied on her doctor when told that there was no factual basis for her concerns.

[15] The plaintiffs submit that the basis for any plausible inference of liability would have been removed after the January 2004 Appointment. As a result of Dr. Padmore’s alleged representation, Sejal would have understood that while an ultrasound “should have” disclosed the presence of spina bifida, it did not in her case.

[16] Sejal’s understanding would also have been consistent with numerous medical notes that referred to Isha’s spina bifida as “unexpected” and undetected despite two “normal” ultrasounds.

[17] For the reasons that follow, I agree with the plaintiffs and dismiss the defendants’ motion for summary judgment on the wrongful birth claim. I find that:

(i) The evidence as to the discussions at the September 2003 and January 2004 Appointments raise genuine issues requiring trial;

(ii) If Sejal’s evidence is accepted, a trial court could find that (a) she took reasonable steps to investigate the plausible inference of liability against Dr. Padmore; and (b) it was reasonable for her to understand, after those conversations, that there was no plausible inference of liability against Dr. Padmore, because she trusted Dr. Padmore’s representation that Isha’s spina bifida occurred despite a clear Ultrasound;

(iii) Consequently, a trial court could find that:

(a) The limitation period was tolled until (at the earliest) April 2016, when she was advised by her present counsel, Hilik Y. Elmaleh (“Elmaleh”), whom she had seen for legal advice on an unrelated matter, that Dr. Padmore’s representation at the January 2004 Appointment might have been false; and

(b) The statement of claim is not statute-barred since it was issued on December 8, 2016.

Overview of wrongful life claim

[18] I dismiss Isha’s wrongful life claim. It is settled appellate law in Ontario[^3] that doctors treating a patient who is pregnant or who may become pregnant do not owe a duty of care to a “future child” (a child subsequently born) for “wrongful life”, i.e., a claim that the child would not have been born if the mother had properly been informed of risks that arose either before or during pregnancy.

[19] I reject the plaintiffs’ submission that the wrongful life cases have left open the possibility of a claim for wrongful life arising out of “post-conception” negligence (as compared to “pre-conception” negligence). Appellate courts have expressly adopted the governing principle from “post-conception” negligence cases and there is no policy rationale to distinguish wrongful life cases based on the timing of the lack of informed consent.

Facts

Uncontested facts

[20] The following facts are uncontested.

The parties

[21] Sejal was born in India and immigrated to Canada in May 2000. Her highest level of education is a one-year diploma. Hospital notes indicate that she “speaks Hindi [with] some English”. Sejal was 22 years old at the time of her pregnancy with Isha.

[22] Dr. Padmore was Sejal’s obstetrician. Sejal first attended at Dr. Padmore’s office in 2001 for matters unrelated to her later pregnancy with Isha.

[23] Dr. Chada was Sejal’s family physician.[^4]

Sejal was referred to Dr. Padmore in relation to her pregnancy with Isha

[24] On May 28, 2003, Sejal attended at Dr. Chada’s office and reported that (i) she had just returned from a three-month trip to India to visit her husband; (ii) she was pregnant; and (iii) she had suffered typhoid, malaria, and chickenpox while in India, and had taken a number of medications. Dr. Chada ordered a pregnancy test, which was positive.

[25] On May 30, 2003, Dr. Chada referred Sejal to Dr. Padmore’s office for obstetrical care.

The first ultrasound was performed on June 3, 2003

[26] Dr. Padmore provided Sejal with obstetrical care from May 31, 2003 to the end of her pregnancy. At Sejal’s initial visit with him, Dr. Padmore ordered an ultrasound, which was conducted on June 3, 2003 (at approximately 9 weeks gestation) and was reported by the radiologist as normal.

The Ultrasound and the Ultrasound Report

[27] Dr. Padmore later ordered a second ultrasound (previously defined as the “Ultrasound”), which was conducted on August 23, 2003 (at approximately 19 weeks gestation).

[28] On August 25, 2003, Dr. Tomash prepared a report of his findings on the Ultrasound (previously defined as the “Ultrasound Report”). Dr. Tomash referred to the presence of spina bifida which he described as a “large” NTD. Dr. Tomash stated in the Ultrasound Report:

There is a large neuro-tube defect in the mid lumbar spine with a myelomeningocele in the mid lumbar spine measuring 2 cm in diameter. …

SUMMARY: SPINA BIFIDA IN THE LUMBAR SPINE WITH MYELOMENINGOCELE AND ARNOLD CHIARITOMAL FORMATION HYDRONEPHROSIS SEEN. NO GROSS ABNORMALITY OF THE FETAL HEART AND KIDNEYS VISUALIZED BUT IN VIEW OF ASSOCIATED CONGENITAL HEART DISEASE VSD-ASSOCIATED CHROMOSOMAL ABNORMALITY FURTHER. ASSESSMENT IS RECOMMENDED, FETAL ECHO, CHROMOSOMAL ANALYSIS AND FOLLOW-UP ULTRASOUND ARE RECOMMENDED TO RULE OUT IUGR [intrauterine growth restriction]. [Block letters in original text; emphasis added.]

[29] On September 2, 2003, Dr. Padmore’s office advised Sejal of the receipt of the Ultrasound Report. His office scheduled an appointment with Sejal for September 4, 2003 (previously defined as the “September 2003 Appointment”).

[30] The nature of the discussion at the September 2003 Appointment (i.e., whether the results of the Ultrasound were communicated, whether Dr. Padmore advised Sejal of the risks of birth or Sejal’s treatment options, including terminating the pregnancy, and whether Sejal made an informed decision to proceed with the pregnancy) is vehemently contested by the parties, as I discuss further below in my analysis of the contested facts.

Isha’s birth

[31] On December 16, 2003, Isha was born at SGH with spina bifida, resulting in serious complications at birth and lifelong impairments. Isha was discharged and admitted to the Hospital for Sick Children (“HSC”) for surgery the next day.

After Isha’s birth, Sejal understood that the Ultrasound Report “should have” disclosed spina bifida

[32] On cross-examination, Sejal acknowledged that she understood from conversations with hospital staff after Isha’s birth that Isha “should have had her spina bifida diagnosed during her pregnancy” and that Dr. Padmore “should have told [Sejal] about this abnormality”. Sejal understood that “some of the ultrasounds should have detected [the spina bifida]”.

Sejal continues to see Dr. Padmore as her obstetrician after Isha’s birth

[33] Following Isha’s birth, Sejal returned to Dr. Padmore to address an infection she had from stitches as a result of Isha’s birth. The precise date of the appointment is not certain, but Sejal believes that the appointment took place in January 2004 (previously defined as the “January 2004 Appointment”).

[34] The nature of the discussion at the January 2004 Appointment (i.e., whether Sejal asked Dr. Padmore if the Ultrasound had disclosed spina bifida and whether Dr. Padmore advised Sejal that the Ultrasound was “clear”) is vehemently contested by the parties, as I discuss further below in my analysis of the contested facts.

[35] Sejal continued to see Dr. Padmore for many years after Isha’s birth, including for her other pregnancies. She remained his patient until 2015.

Evidence as to the discussions about the claim with Elmaleh

[36] In early 2016, at the age of 12, Isha underwent a bladder surgery due to complications associated with her condition. The surgeon found many staples in her bladder but could not explain why they were there. The surgeon could not remove the staples. Sejal was very upset and a family member suggested that she call a lawyer.

[37] In or around early April 2016, Sejal called Elmaleh and told him about the unexplained staples in Isha’s bladder. She asked if he could investigate.

[38] Sejal first met with Elmaleh on April 7, 2016. During that meeting, Elmaleh told her that he was surprised that Isha's spina bifida was not detected during the pregnancy, and he said he would look into it.

[39] On or about April 7, 2016, Elmaleh wrote letters to HSC, SGH, and Dr. Padmore, requesting copies of Isha’s and Sejal’s medical records.

[40] Elmaleh and his firm received the records from HSC on May 4, 2016 and the records from SGH on May 31, 2016. Dr. Padmore’s office chart was provided to counsel on September 13, 2016.

[41] On or about December 5, 2016, Elmaleh advised Sejal that his investigation revealed that one of the ultrasounds during the pregnancy reported Isha's spina bifida and that Dr. Padmore was aware of it.

[42] The statement of claim was issued three days later, on December 8, 2016. Sejal alleged that “the results of the [Ultrasound] were never communicated to the plaintiff Sejal Joshi and the said plaintiff was never advised of her treatment options including termination of the pregnancy”.

Contested facts

The discussion at the September 2003 Appointment

[43] There is a chasm between the two versions of what took place at the September 2003 Appointment. I review the two versions below, as well as the evidence relevant to the dispute.

[44] Sejal categorically states that Dr. Padmore advised her that the Ultrasound was clear (as he had also done for the first ultrasound). Sejal’s evidence, which never varied on cross-examination, is that Dr. Padmore never advised her of (i) the Ultrasound result which disclosed the presence of spina bifida/NTD, (ii) the consequences of such a finding for her pregnancy and for the health of her future child, or (iii) her options (including terminating the pregnancy) in light of the Ultrasound Report. Sejal categorically denies that she chose to continue her pregnancy after being advised of the risks arising from the abnormal findings in the Ultrasound Report.

[45] On cross-examination, Sejal never varied from her position as set out above.

[46] Dr. Padmore categorically denies Sejal’s evidence. He states that at the September 2003 Appointment, (i) he advised Sejal that the Ultrasound Report showed “abnormalities in the fetus”; (ii) he discussed those abnormalities with Sejal and advised her that she had an option of terminating her pregnancy; and (iii) Sejal elected to proceed with her pregnancy notwithstanding the results of the Ultrasound Report.

[47] In light of the chasm between the two versions, it is necessary to review the relevant evidence to consider whether there is a genuine issue for trial as to what was discussed at the September 2003 Appointment.

[48] The issue of credibility arising from the September 2003 Appointment is relevant to other issues at trial. If a court accepts Sejal’s version of the discussion, (i) Dr. Padmore’s credibility as to the January 2004 Appointment could be impacted at trial and (ii) Sejal’s purported reliance on the alleged subsequent confirmation of a “clear” Ultrasound Report at the January 2004 Appointment would have further support as she would have been given the same information by Dr. Padmore on two separate occasions.

[49] The following evidence supports Sejal’s claim that Dr. Padmore never disclosed at the September 2003 Appointment that the Ultrasound Report noted spina bifida (and that there were therefore no discussions about either (i) the potential consequences of a birth of a child with spina bifida, (ii) Sejal’s options, including terminating the pregnancy, or (iii) Sejal’s alleged decision to continue with the pregnancy):

(i) Dr. Padmore’s “progress notes” of the September 2003 Appointment make no reference to (a) any discussion of the results of the Ultrasound Report, (b) any counselling on Sejal’s options following the results of the Ultrasound Report, or (c) Sejal’s alleged decision to continue with the pregnancy. The only notes from that date record Sejal’s weight.

Dr. Padmore acknowledged on cross-examination that if a patient refused a treatment option, he “most likely would document it”;

(ii) The “Antenatal 2 Record” from Dr. Padmore’s chart makes no reference to Sejal ever being told, or counselled, about the Ultrasound results. Further, there is no reference on the Antenatal 2 Record to Isha’s NTD or the results of the Ultrasound. The only notes record the date, gestational age, weight, fetal heart rate, and blood pressure.

Under the section in the Antenatal Record 2 entitled “Ultrasound Results”, there are no notes about spina bifida or an NTD. Instead, there are only references to the dates of the two ultrasounds and when they took place gestationally (9 and 19 weeks).

Under the section in the Antenatal Record 2 entitled “Referral Plan”, there are no notes about any referral to a geneticist;

(iii) Despite the fact that the Ultrasound Report specifically recommended that a follow-up ultrasound be carried out, Dr. Padmore did not order any follow-up ultrasound or any other tests or investigations;

(iv) Dr. Chada’s note of September 18, 2003 indicates that Sejal stated that she was “in care of Dr. Padmore” and that there were “no problems with her pregnancy”;

(v) In the “Discharge Summary” prepared by Dr. Padmore following Isha’s birth, Dr. Padmore stated that “[a]t the time of delivery, fetal abnormality was diagnosed and the patient was discharged to Hospital For Sick Children” (emphasis added);

(vi) Dr. Azzopardi’s “Admission History” notes, prepared upon Sejal’s admission to SGH on December 16, 2003, state that “[t]wo ultrasounds were done at nine and 19 weeks” and that “[t]hese were apparently within normal limits”;

(vii) The HSC assessment form dated December 17 and 18, 2003 notes that the spina bifida was “undiagnosed in utero”. The assessment form also states that Sejal “speaks Hindi [with] some English”;

(viii) The “request for consultation” of Dr. Flanders at HSC dated December 17, 2003 notes that the request is for “unexpected myelomeningocele” and that during Sejal’s pregnancy, she had “[normal] antenatal [ultrasounds] X 2”;

(ix) The “in-patient operative report” of Dr. Dirks at HSC dated December 17, 2003 states that the NTD was “not detected antenatally”;

(x) The consultation notes of Dr. Bali at HSC dated December 20, 2003 state that Sejal had an “uncomplicated pregnancy [with] 2 [normal] pre-natal [ultrasounds]”;

(xi) The consultation notes of Dr. Harrison at HSC dated December 22, 2003 state that Sejal had “[normal] antenatal [ultrasounds] X 2 (9 wks + 19 wks)”;

(xii) The notes of the social worker at HSC dated December 24, 2003 state that Sejal “appear[ed] to be in shock/disbelief” about Isha’s condition upon birth; and

(xiii) In his “discharge summary” dated December 26, 2003, Dr. Dirks at HSC notes that (a) Isha “was identified with a myelomeningocele in the lumbar area at birth”; (b) “[t]here was no antenatal diagnosis”; and (c) Sejal had an “uneventful” pregnancy.

[50] The defendants rely on a note from a request for consultation for a geneticist at HSC dated December 23, 2003 as evidence that Sejal learned of the Ultrasound result at the September 2003 Appointment. That note discloses that “Mom states that one of [the ultrasounds] showed a NTD”. That note contains an error about Isha’s age (she was a week old and not 3 days old) and is occasionally incorrect grammatically (one note states “Mom told that doctors where [sic] concern [sic] she was pregnant”).

[51] The December 23, 2003 note does not refer to the alleged timing of Sejal’s purported knowledge, i.e., whether Sejal learned of the Ultrasound result at the September 2003 Appointment or after Isha’s birth.

[52] Even if the December 23, 2003 note could be linked to knowledge from the September 2003 Appointment, Sejal categorically denied stating that the Ultrasound had showed an NTD. Sejal stated in her cross-examination that she could have said that the Ultrasound “should have showed” spina bifida (since she had acquired that information after Isha’s birth). However, Sejal consistently maintained that she “never” said that she knew that the Ultrasound Report did, in fact, disclose spina bifida.

The discussion at the January 2004 Appointment

[53] Again, there is a chasm between the two versions of what took place at the January 2004 Appointment. I review the two versions below, as well as the evidence relevant to the dispute.

[54] Sejal categorically states that she asked Dr. Padmore about the results of the Ultrasound at the January 2004 Appointment and that Dr. Padmore told her that the Ultrasound was “clear”. Sejal’s evidence is that Dr. Padmore stated that “the ultrasounds did not show spina bifida and that the ultrasounds were normal”.

[55] Dr. Padmore categorically denies Sejal’s version of the conversation at the January 2004 Appointment. Dr. Padmore’s evidence is that “I do not believe that Ms. Joshi asked me about the ultrasound and Isha’s spina bifida”, but if she had, “I would have advised her once again, as I did at the time that the ultrasound result came back, that the ultrasound dated August 23, 2003 confirmed the presence of spina bifida in the lumbar spine with myelomeningocele and Arnold chiaritomal formation in the fetus”.

[56] There are no notes made by Dr. Padmore that refer to the conversation at the January 2004 Appointment.

[57] In a November 20, 2010 consultation report, Dr. Chang at Rouge Valley Centenary recorded that “[t]he spina bifida was discovered post delivery”, supporting Sejal’s evidence that Dr. Padmore told her, at the January 2004 Appointment, that the Ultrasound was clear.

[58] The defendants rely on a note from a consultation that Sejal had on September 27, 2005 with Dr. Yee, a geneticist at HSC, in which Dr. Yee recorded that “[t]he spina bifida was diagnosed [on] ultrasound at approximately the second trimester ultrasound in Canada”. The defendants submit that the note establishes that Dr. Padmore disclosed that the Ultrasound results indicated the presence of spina bifida at the January 2004 Appointment.

[59] Sejal was asked about this note on cross-examination and denied making the statement. She said, “I didn’t know that [Isha’s spina bifida was diagnosed in the Ultrasound Report]”, so “How I am supposed to say anything? I didn’t say that”.

[60] Sejal acknowledged on cross-examination that (i) she never asked to see a copy of the Ultrasound Report or her medical chart; and (ii) there was “nothing stopping [her] from consulting a lawyer” about the possibility of starting a claim against Dr. Padmore after Isha’s birth.

[61] However, Sejal’s evidence, is that she took none of those steps since she “fully trusted Dr. Padmore and relied on his advice” that the Ultrasound was clear, “[b]ecause of my relationship with Dr. Padmore being my OB/GYN and me as his patient for many years”.

Summary of the evidence as to Sejal’s knowledge of disclosure of the Ultrasound results

[62] Sejal knew shortly after Isha’s birth that the Ultrasound should have disclosed spina bifida and that Dr. Padmore should have detected the results and disclosed them to her.

[63] However, Sejal relies on the alleged conversation with Dr. Padmore at the January 2004 Appointment as a basis to toll the limitation period. Sejal asserts that Dr. Padmore advised her that the Ultrasound was “clear” and that she relied upon that statement, and as a result did not pursue any legal action until Elmaleh (i) advised her of his concerns about Dr. Padmore’s alleged representation that the Ultrasound was “clear”, (ii) ordered the records, and (iii) discovered that the statement upon which Sejal had allegedly relied was not accurate.

Analysis

[64] There are two issues before the court: (i) is there a genuine issue requiring trial as to whether Sejal’s wrongful birth claim is statute-barred, and (ii) does Isha’s wrongful life claim disclose a cause of action? I address each of these issues below.

Sejal’s wrongful birth claim

[65] In this section, I address (i) the applicable law on summary judgment, (ii) the applicable law on discoverability, and (iii) the application of the legal principles to the facts of the present case.

The applicable law on summary judgment

[66] The relevant legal principles applicable to summary judgment are as follows:

(i) The purpose of r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is to (a) eliminate claims that have no chance of success at trial, and (b) provide judges with fact-finding powers to be used on a summary judgment motion: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 44-45, and 66;

(ii) The evidence on a summary judgment motion must enable the motion judge to be confident that they can fairly resolve the dispute: Hryniak, at para. 57;

(iii) The motion judge’s enhanced powers allow the court to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81, at para. 83;

(iv) The focus of a summary judgment motion is not on what kind of evidence could be adduced at trial, but rather on whether a trial is required: Hryniak, at para. 56;

(v) The court is entitled to assume that it has all the evidence that would be available at trial related to the matters at issue: Portuguese Canadian Credit Union v. Pires, 2011 ONSC 7448, at para. 11, aff’d 2012 ONCA 335;

(vi) The moving party has the onus of proving that there is no genuine issue requiring a trial. Then, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, at paras. 26-27, leave to appeal refused, 2014 ONSC 3016;

(vii) Summary judgment is not appropriate if the credibility of the parties is squarely in issue and requires a trial: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, at para. 9;

(viii) The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. “It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required”: Cook v. Joyce, 2017 ONCA 49, at para. 92, citing Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55; and

(ix) The court must take “great care” in assessing credibility and reliability on affidavit evidence, since “[e]vidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice”. Consequently, the motion court must “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 (C.A.), at para. 44.

[67] Consequently, on a motion for summary judgment based on a limitation period, the court must be confident that there are no genuine issues requiring trial that might determine whether the claim is statute-barred.

The applicable law on discoverability

(a) The commencement of a limitation period

[68] I first address the principles relevant to the running of a limitation period, which are based on the discoverability principle.

[69] Section 5(1) of the Limitations Act provides:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

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

(iii) that the act or omission was that of the person against whom the claim is made, and

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

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[70] Pursuant to s. 5(2) of the Limitations Act, the person with the claim “shall be presumed” to have discovered their claim “on the day the act or omission on which the claim is based took place, unless the contrary is proved”.

[71] I summarize the applicable principles from the case law on discoverability as follows:

(i) “[A] claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”: Grant Thornton, at para. 3;

(ii) A plaintiff need not “kno[w] with certainty that … injuries were caused by the fault of the defendant” in order for a limitation period to start to run: Longo v. MacLaren Art Centre, 2014 ONCA 526, at para. 44; Kowal v. Shyiak, 2012 ONCA 512, at para. 18; and

(iii) The limitation period is activated when the plaintiff has a basis on which to infer that the identified defendant caused the act or omission that has given rise to the identified damage. The full extent of the damage need not be known: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657, at para 61; Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, at para. 18.

[72] Discoverability rests on due diligence by the plaintiff. In Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397 (C.A.), the court held, at para. 24:

[T]he discoverability principle rests by definition on the requirement of due diligence by the plaintiff. Judicial respect for that requirement is inherent to proper regard for the diligence policy rationale which underlies limitations statutes. That requirement dictates the test to be applied in determining the start of a limitation period under the discoverability principle: when can it be said that the plaintiff knew, or by reasonable diligence could have discovered, the material facts on which to base a cause of action against the proposed defendant? [Emphasis added.]

[73] In deciding when a person ought to have discovered the elements of their claim, it is relevant to consider “what reasonable steps” they ought to have taken: Fennell v. Deol, 2016 ONCA 249, at para. 24. “Suspicion” may “trigger” the requirement to exercise reasonable diligence: Grant Thornton, at para. 44.

[74] Consequently, the Limitations Act imports the principle of discoverability into limitations law. If a person with a claim knows, or ought to have known, the required elements under s. 5(1)(a), then the limitation period will begin to run.

(b) The applicable law on tolling a limitation period

[75] The present case does not turn on when the limitation period began. The date on which Sejal knew or ought to have known that she had a claim against Dr. Padmore does not present a genuine issue requiring trial. Sejal acknowledged that she knew after Isha’s birth that (i) the Ultrasound “should have” disclosed the spina bifida; (ii) Dr. Padmore “should have” detected the spina bifida from the Ultrasound Report; and (iii) Dr. Padmore “should have” disclosed the results of the Ultrasound Report to her and explained her options, including terminating the pregnancy. Consequently, the limitation period began to run at or near the end of December 2003.

[76] The present case turns on whether the discoverability principle can “toll” a running limitation period if the plaintiff, having engaged in due diligence and investigation and acted upon their “suspicions”, cannot reasonably know of the cause of action.

[77] Based on the case law I review below and the general principles governing limitation periods, I find that the law supports the tolling of a running limitation period in the circumstances described above.

[78] Under the requirement of due diligence set out in Zapfe (see para. 72 above), there may be circumstances in which a plaintiff engages in “due diligence” after learning of facts to support a plausible inference of liability. If the plaintiff obtains facts upon which the plaintiff can reasonably rely, then “judicial respect” for that “due diligence” could toll the limitation period since the discoverability principle “underlies limitations statutes”.

[79] In Fennell, the court considered whether limitation periods can be tolled before the limitation period begins to run. The court held, at para. 23, that “a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a)”.

[80] I find that there is no basis to restrict the principles in Zapfe and Fennell to tolling a limitation period before it begins to run. In circumstances where a plaintiff does not “sit idle” but instead “take[s] steps to investigate the matters referred to in s. 5(1)(a)” (paraphrasing Fennell), the limitation period may be tolled after it has started running if the plaintiff reasonably relies on the facts learned from due diligence to conclude that there is no plausible inference of liability.

[81] If a reasonable person would not have a “suspicion” to “trigger” the exercise of reasonable diligence as a result of the investigation undertaken to determine whether the plausible inference of liability can be supported (paraphrasing Grant Thornton, at para. 44), then the limitation period may be tolled.

[82] If tolling of a running limitation period is not permitted, the principle of discoverability would be vitiated. Limitation periods would run even though a person could not draw a plausible inference of liability after conducting a reasonable investigation initiated by suspicions of liability.

[83] Not every investigation will toll a limitation period once it has begun. The investigation itself must be reasonable and the results of the investigation must be such that a reasonable person would not conclude that there is a plausible inference of liability.

[84] A similar approach has been adopted in fraudulent concealment cases where the court rejected a fraudulent concealment assertion when the plaintiff would have known that they had a claim, despite the alleged fraudulent concealment.

[85] In Kim v. The Manufacturers Life Insurance Company, 2014 ONCA 658, the court rejected the plaintiff’s attempt to rely on fraudulent concealment to extend the limitation period. The court held, at paras. 2-3, that:

Before us, Mr. Kim submits that the limitation period should be suspended because of the fraudulent concealment of documents by the respondent.

This argument does not change the analysis. Any fraudulent concealment of documents, whether it existed or not would not prevent Mr. Kim from knowing he had a cause of action.

[86] However, the necessary corollary from the Kim decision is that if the fraudulent concealment had prevented the plaintiff from knowing he had a cause of action, then the limitation period would have been tolled. There is no distinction in principle with respect to tolling a limitation period where fraudulent concealment is not at issue.

[87] Similarly, in Colin v. Tan, 2016 ONSC 1187, Perell J. allowed an appeal from an order of an Associate Judge joining an orthopaedic surgeon (Dr. Lewis) as a co-defendant in a case arising from a spinal surgery that had failed to improve the plaintiff’s condition. The surgery took place in 2006 and the plaintiff sought to add the Dr. Lewis by a motion brought in December 2013 and heard by the Associate Judge on February 25, 2015.

[88] On the evidence before him, Perell J. held that the limitation period began to run in 2008, when the plaintiff issued a claim against his family doctor (Dr. Tan) for injuries arising out of a spinal cord compression for disc herniation. At that point, the plaintiff had not sued Dr. Lewis. The plaintiff had retained counsel four months after the surgery in 2006. Counsel had requested all relevant records, including those of the surgery.

[89] The plaintiff in Colin sought to rely on the doctrine of fraudulent concealment because the orthopaedic surgeon later stated in a letter that he was unaware of any surgical complications: at para. 40. Perell J. allowed the appeal on the basis that even if there was fraudulent concealment, it was not of the nature “that affected the discoverability of a claim against Dr. Lewis”: Colin, at para. 43.

[90] However, the decision in Colin does not require a plaintiff to retain counsel if, as a result of the plaintiff’s reasonable investigation (which could include, as in the present case, a representation by the defendant), the plaintiff would reasonably have concluded that there was no plausible inference of liability to support a decision to retain counsel.

[91] I rely on the principles in the above fraudulent concealment cases to support the conclusion that the same issues of discoverability arise when a person has taken the investigative steps referred to in Fennell, and because of such steps, any “suspicion” that might once have been “triggered” has disappeared, so that they can no longer draw a plausible inference of liability.

[92] It is not necessary to establish fraudulent concealment under s. 15(4)(c)(i) of the Limitations Act for a limitation period to be tolled. The same principles of discoverability can apply to toll limitation periods without fraud.

[93] In any event, the ultimate limitation period of 15 years under s. 15(2) of the Limitations Act “does not run during any time in which the person against whom the claim is made wilfully conceals from the person with the claim the fact that the injury, loss or damage has occurred, that it was caused by or contributes to by an act or omission or that the act or omission was that of a person against whom the claim was made”. In effect, s. 15(2) prevents a claim fraudulently concealed from expiring despite the ultimate limitation period. That issue does not arise in the present case as Isha’s birth was in December 2003 and the statement of claim was brought in December 2016.

[94] For the above reasons, I find that a limitation period can be tolled after it has begun to run if the court finds that the plaintiff took reasonable steps to investigate the plausible inference of liability and reasonably relied on the facts subsequently learned to conclude that the plausible inference of liability did not continue to exist.

[95] I do not restrict the principle to apply only where there is a finding of fraudulent concealment, but instead find that it applies to any situation where the principle of discoverability would permit tolling an existing limitation period.

The application of the legal principles to the facts of the present case

[96] I now apply the above legal principles to the facts of the present case.

(a) Genuine issue requiring trial as to the discussions at the September 2003 Appointment

[97] There is a significant credibility dispute as to the discussions that took place at the September 2003 Appointment. For the reasons I discuss below, the dispute raises a genuine issue requiring trial.

[98] Dr. Padmore’s evidence in his affidavit sworn June 2, 2020 is that at the September 2003 Appointment:

(i) He advised Sejal that the Ultrasound Report showed “abnormalities in the fetus”, and, in particular, the findings in the report revealed a “large neuro-tube defect in the mid lumbar spine with a myelomeningocele in the mid lumbar spine” and “SPINA BIFIDA IN THE LUMBAR SPINE WITH MYELOMENINGOCELE AND ARNOLD CHIARTOMAL FORMATION”; [block letters in original text] and

(ii) He “discussed these findings with Ms. Joshi and advised her that she had the option of terminating her pregnancy. Ms. Joshi elected to proceed with her pregnancy notwithstanding the abnormal findings.”

[99] Sejal’s evidence is that there was no such discussion, and that Dr. Padmore told her the results of the Ultrasound were clear.

[100] The defendants ask the court to find that the credibility of Dr. Padmore’s evidence about the September 2003 Appointment should be accepted and raises no genuine issue for trial.[^5] However, on the evidence, I cannot find with the “confidence” required under Hryniak that this credibility dispute would be resolved in Dr. Padmore’s favour.

[101] There is considerable evidence supporting Sejal’s position that Dr. Padmore did not advise her at the September 2003 Appointment (i) that the Ultrasound disclosed spina bifida, (ii) of the risks for birth, and (iii) that she had the option of terminating her pregnancy. This body of evidence poses a significant challenge to Dr. Padmore’s assertion that Sejal “elected to proceed with her pregnancy notwithstanding the abnormal findings”.

[102] As I discuss at para. 49 above, (i) the lack of any notes from Dr. Padmore about the alleged discussion at the September 2003 Appointment, (ii) the lack of any reference to Ultrasound concerns in the Antenatal Report 2, (iii) Dr. Padmore’s discharge summary, and (iv) numerous concurrent records which refer to the “unexpected” spina bifida arising from “normal” ultrasounds, all raise a genuine issue requiring a trial in which the court can consider the credibility of Dr. Padmore and Sejal as to what they discussed at the September 2003 Appointment. The written record is not sufficient for the court to have confidence that Dr. Padmore’s version would be accepted.

(b) Genuine issue requiring trial as to the discussions at the January 2004 Appointment

[103] Again, the parties have diametrically opposed evidence as to the discussion at the January 2004 Appointment.

[104] Sejal’s evidence is that after learning from hospital staff that the spina bifida “should have” been disclosed on the Ultrasound, she asked Dr. Padmore at the January 2004 Appointment whether the Ultrasound disclosed spina bifida. Sejal’s evidence is that Dr. Padmore again told her that the Ultrasound was clear.

[105] Dr. Padmore’s evidence is that he does not believe that Sejal asked “about the ultrasounds and Isha’s spina bifida”, but if she did, he “would have advised her once again, as [he] did at the time that the [U]ltrasound result came back [at the September 2003 Appointment], that the [Ultrasound] confirmed the presence of spina bifida in the lumbar spine with myelomeningocele and Arnold chiaritomal formation in the fetus”.

[106] Again, the written record does not provide sufficient confidence that Dr. Padmore’s version of the discussion would be accepted. There are no notes of the January 2004 Appointment. The notes which postdate the January 2004 Appointment are inconsistent.

[107] The notes of the November 20, 2010 consultation with Dr. Chang, as set out at para. 57 above, state that “[t]he spina bifida was discovered post delivery”, supporting Sejal’s evidence that Dr. Padmore told her, at the January 2004 Appointment, that the Ultrasound was clear.

[108] Conversely, the notes from the September 27, 2005 consultation with Dr. Yee (see para. 58 above) support the defendants’ position that Sejal knew of the Ultrasound results at some point in time, although the notes do not refer to whether the results were disclosed at the January 2004 Appointment.

[109] On cross-examination, Sejal consistently denied making the statement recorded in Dr. Yee’s notes. There is no record of the source of Dr. Yee’s information. Sejal’s denial is consistent with the November 20, 2010 medical notes that support her position.

[110] The existence of a single note in a plethora of medical records is not sufficient to find that there is no genuine issue requiring trial given the facts of the present case.

[111] Further, Sejal’s evidence that she continued as a patient to see Dr. Padmore until 2015 and through two additional pregnancies is consistent with both (i) Sejal’s version of the discussion at the January 2004 Appointment and (ii) Sejal’s evidence that she trusted and relied on Dr. Padmore’s representation as a basis not to conduct further investigation after the January 2004 Appointment.

[112] Finally, any credibility findings the court might make as to the contents of the alleged discussion at the September 2003 Appointment could be relevant to determining credibility on the subsequent conversation at the January 2004 Appointment.

[113] For the above reasons, there is a genuine issue requiring trial as to the discussion that took place at the January 2004 Appointment. The court cannot be confident that Dr. Padmore’s evidence will be accepted at trial, and viva voce evidence will be necessary to assess credibility.

(c) No genuine issue requiring trial as to whether Sejal understood that the Ultrasound “should have” disclosed the spina bifida

[114] As I discuss above, Sejal repeatedly acknowledged on cross-examination that she understood from discussions with hospital staff that the Ultrasound should have disclosed the spina bifida and that Dr. Padmore should therefore have detected it and told her about it.

[115] Consequently, there is no genuine issue requiring trial on this point.

(d) Genuine issue requiring a trial as to whether Sejal knew that the Ultrasound disclosed the spina bifida

[116] The defendants further submit that even if Dr. Padmore did not disclose the results of the Ultrasound at either of the two appointments, there is still no genuine issue requiring trial. The defendants rely on the December 23, 2003 and September 27, 2005 medical notes to submit that the court can be “confident” that Sejal knew that the Ultrasound disclosed spina bifida. I do not agree.

[117] Sejal stated consistently in her affidavit and her cross-examination that the first time she learned that the Ultrasound disclosed spina bifida was when Elmaleh advised her in December 2016.

[118] Numerous medical notes support Sejal’s position that at no time was Sejal aware that the Ultrasound disclosed spina bifida.

[119] In contrast, two entries in medical notes are not conclusive evidence that Sejal knew that the Ultrasound disclosed spina bifida.

[120] As I set out at para. 49(vii) above, the HSC assessment form states that Sejal spoke Hindi with “some” English. Further, the December 23, 2003 notes contain an error about Isha’s date of birth, and also contain grammatical errors, suggesting that the author could have misunderstood Sejal if she had stated, at that time, that the Ultrasound “should have” disclosed the spina bifida.[^6]

[121] The September 27, 2005 note does not indicate the source of the statement – which Sejal denies making – that Sejal knew that the spina bifida had been diagnosed on the Ultrasound. This note contains very specific information that a patient would not necessarily have been able to relay to a physician (such as Isha’s 2.37 kg birth weight). Consequently, I do not find that the note is a determinative factor establishing that Sejal knew that the Ultrasound disclosed spina bifida.

[122] Consequently, I find that there is a genuine issue requiring trial as to whether Sejal knew that the Ultrasound had detected spina bifida prior to being advised by Elmaleh in December 2016.

(e) Application of the law to the evidence in the present case

[123] Based on the above, I find that there is a genuine issue requiring trial as to whether the limitation period was tolled.

[124] As of December 2003, Sejal knew that (i) the Ultrasound should have disclosed the spina bifida; and (ii) as such, Dr. Padmore ought to have detected the spina bifida and disclosed it to her. From that point in time, if Sejal had “[sat] idle” or “[taken] no steps to investigate the matters referred to in s. 5(1)(a)”, the limitation period would have run and expired well before the action was brought in 2016.

[125] However, there is a genuine issue requiring trial as to whether Sejal did not sit idle and instead (i) asked Dr. Padmore if the Ultrasound disclosed spina bifida and (ii) was told by Dr. Padmore that it was clear. In such circumstances, there is a genuine issue requiring trial as to whether it was reasonable for Sejal to rely on her physician and, upon being told that the Ultrasound Report did not disclose spina bifida, to reasonably conclude that there was no plausible inference of Dr. Padmore’s liability.

[126] In effect, the defendants submit that even if Dr. Padmore did tell Sejal that the Ultrasound was clear, Sejal was required to take further steps to investigate a potential claim, for example by requesting the Ultrasound Report or consulting a lawyer.

[127] I do not agree.

[128] The numerous medical notes refer to an “unexpected” NTD which took place despite “normal” ultrasounds with a pregnancy that had “no problems”, consistent with a situation where an ultrasound could have been “clear” but still resulted in a spina bifida birth.

[129] Consequently, the evidence supports a possible conclusion at trial that Sejal had no basis to conclude that Isha’s birth with spina bifida was a result of anything other than Isha being born with a congenital disability which did not appear on the Ultrasound, even though Sejal knew that, generally, it “should have” appeared.

[130] Such an understanding would have been based on the discussion that Sejal alleges took place at the January 2004 Appointment in which Dr. Padmore, in effect, advised Sejal that the spina bifida arose despite it not appearing on the Ultrasound Report.

[131] If Dr. Padmore made the alleged statement after Isha’s birth, i.e. that the Ultrasound was clear, then Sejal would have understood that while spina bifida “should” be detected in an ultrasound for most spina bifida births, that was not what happened in her case. That understanding would also have been consistent with the numerous medical notes that referred to the spina bifida as “unexpected” and occurring despite “normal” ultrasounds.

[132] If Sejal’s version of the January 2004 Appointment is accepted at trial, there is a genuine issue requiring trial as to whether she reasonably relied on her obstetrician’s representation. Sejal could establish that after her investigation, she did not have “knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's part can be drawn”, under the Grant Thornton test.

[133] Sejal’s evidence that she “fully trusted” Dr. Padmore and “relied on his advice” raises a genuine issue requiring trial.

[134] Dr. Padmore was in a fiduciary relationship with his patient, Sejal: Levac v. James, 2021 ONSC 5971, at paras. 143-45. If a mistake was made during treatment, he had a legal obligation to disclose it: Gerald B. Robertson and Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Carswell), at p. 488.

[135] The present case therefore is unlike the situation in Colin relied upon by the defendants. In Colin, the plaintiff hired a lawyer who obtained expert reports after the plaintiff’s unsuccessful surgery, which included surgery from the orthopaedic surgeon, Dr. Murray.

[136] In the present case, however, the existence of a clear Ultrasound Report would have been a full response to any potential claim by Sejal against Dr. Padmore. She could have no claim against him if Isha’s birth with spina bifida was an “unexpected” result, “first detected on birth”, as stated in Dr. Padmore’s own December 18, 2003 discharge summary report.

[137] Put differently, there is a genuine issue requiring trial because a clear Ultrasound report would have absolved Dr. Padmore of any liability. There is no evidence that Sejal knew, or ought to have known, having been told that the Ultrasound was clear, that there was any basis to pursue a claim. The alleged representation was, in effect, that the spina bifida was an unexpected result for which Dr. Padmore could not be liable.

[138] It is not necessary in the present case for a court to find fraudulent concealment on the part of Dr. Padmore.

[139] The plaintiffs submit that a court could possibly find that the three “constitutive elements” were present: (i) the defendant and plaintiff have a special relationship with one another; (ii) given the special or confidential nature of the relationship, the defendant’s conduct is unconscionable; and (iii) the defendant conceals the plaintiff’s right of action either actively or the right of action is concealed by the manner of the wrongdoing: Colin, at para. 45.

[140] A fraudulent concealment defence is relevant only to ensuring that the ultimate 15-year limitation period does not expire. That issue does not arise in the present case, as Isha was born on December 16, 2003 and the claim was brought on December 16, 2016.

[141] Instead, the issue before the court is whether, on the facts of the present case, the discoverability principle required under Grant Thornton can apply to toll a running limitation period. A person with a claim who heeds the advice under Fennell, does not sit idle, and instead takes steps to investigate the matters referred to in s. 5(1)(a) of the Limitations Act should not be subject to a running limitation period when the results of their investigation preclude a reasonable person from drawing a plausible inference of liability.

[142] In effect, Sejal’s evidence is that after she drew a plausible inference of Dr. Padmore’s liability, she went back to him to investigate the seminal fact necessary for her to maintain that inference, i.e., whether the Ultrasound disclosed spina bifida. If Sejal was told at the January 4 Appointment that the Ultrasound Report was clear, there is a genuine issue requiring trial that a plausible inference of Dr. Padmore’s liability was no longer reasonable.

[143] Further, there would have been no basis for Sejal to challenge Dr. Padmore by insisting on seeing the ultrasound reports or by retaining counsel, since her doctor upon whom she relied (if Sejal’s evidence on reliance is accepted at trial), advised her that both ultrasounds were clear.

[144] In such circumstances, a court could find that the limitation period was tolled at least until Sejal met with Elmaleh in April 2016 on an unrelated matter. Sejal’s evidence is that until she met with Elmaleh, her state of knowledge was based on Dr. Padmore’s representation to her at the January 2004 Appointment. Consequently, a trial court could find that it was only upon Sejal learning from Elmaleh that Dr. Padmore’s representation might have been wrong that the limitation clock began to run again. Therefore, the action brought on December 8, 2016 would be within the limitation period.

[145] For the above reasons, I find that there is a genuine issue requiring trial as to whether Sejal’s action is statute-barred.

[146] I note that the defendants did not request a mini-trial if the court found that summary judgment was not appropriate. I agree that such a process would not provide a more just or expeditious resolution of the issues in the case, as credibility can only be assessed on a review of all of the evidence of Sejal’s dealings with Dr. Padmore. Thus, a mini-trial would save no time or cost in the management of the action.

Isha’s wrongful life claim

[147] A “wrongful life” claim arises when a plaintiff alleges that a doctor owed a duty to them as a “future child”. A plaintiff in a “wrongful life” claim seeks damages for having been born as a result of lack of informed consent to the mother.

[148] Isha claims that (i) by failing to advise Sejal about the spinal bifida shown on the Ultrasound, Dr. Padmore deprived Sejal of the information needed to make a decision about whether to terminate the pregnancy; and (ii) if Dr. Padmore had provided the requisite informed consent, Sejal would have terminated the pregnancy and Isha would not have been born.

[149] For the reasons that follow, I find that it is settled appellate law in Ontario that a physician does not owe a duty of care to a future child in such circumstances.

The plaintiffs’ position

[150] The plaintiffs acknowledge that a wrongful life claim cannot be brought for negligence that arose “pre-conception” for damages arising from a claim that a child would not have been born if the doctor had advised the mother about the risks of becoming pregnant. However, the plaintiffs submit that the law is not settled that a wrongful life claim cannot be brought for lack of informed consent “post-conception” (after becoming pregnant until birth). I do not agree.

[151] The plaintiffs rely on four cases in which Ontario motion courts dismissed motions under r. 21 of the Rules of Civil Procedure to dismiss a wrongful life claim when the lack of informed consent occurred “post-conception”. However, all those cases predated a trilogy of Court of Appeal cases which reject any claim for wrongful life regardless of when the lack of informed consent took place. It is settled law that no duty of care can exist to a future child if the basis of the claim is that the child would not have been born if the doctor had advised the mother about the risks of the birth.

[152] The appellate case law precludes a wrongful life claim, regardless of the timing of the lack of informed consent to the mother.

The appellate case law

(a) Bovingdon

[153] In Bovingdon v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 92, a claim was brought by twins for damages on birth arising from the mother being prescribed a fertility drug (Clomid) prior to pregnancy which had a significant risk of twin birth. The evidence was that the mother would not have taken the drug if advised of the risk of twin birth and the accompanying risk of premature birth and consequent injury to the future children: at para. 2.

[154] The trial judge found that the doctor owed no duty of care to the future children born as a result of the lack of informed consent to the mother. The Court of Appeal upheld the decision of the lower court, but stated that it was doing so based on an Anns approach under which it found no duty of care, rather than under the category-based approach relied upon by the trial judge (who had adopted that approach from the decision of the Manitoba Court of Appeal in Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, [2001] M.J. No. 311, 202 D.L.R. (4th) 121 (C.A.)).

[155] While the decision in Bovingdon arose from a pre-conception lack of informed consent, the court held that there is no duty of care owed to any future child on the basis that the child would not have been born at all, regardless of the timing of the lack of informed consent. Feldman J.A., speaking for the court, reviewed the law arising from “cases in which, but for the wrongful act or omission, the child would not have been born at all”: at para. 41. Feldman J.A. held, at para. 42, that those cases:

where the defendant’s negligence did not cause the harm to the child but only caused the parents either to proceed to conceive the child, or to bear the child rather than abort, [would give rise to] an action for wrongful life for which there is no claim in law. [Emphasis added.]

[156] The court in Bovingdon was clear that the principle applies regardless of whether the doctor’s negligence took place pre-conception or post-conception. The court relied on wrongful life cases from post-conception lack of informed consent, including failing to detect fetal abnormalities in an ultrasound, the same issue as in the present case. Feldman J.A. held, at para. 46:

[Wrongful life claims] typically arise when a doctor fails to warn the mother about the risk of giving birth to a child with disabilities. For example, where there are factors such as the risk of serious hereditary diseases, parents who are warned may decide not to conceive, or where parents are advised of an adverse genetic test result or an in utero infection such as rubella, they may choose to abort. In those cases, the doctor's negligence has not caused the injury. Rather, it has caused or allowed the child to be born, because had the parents been informed of the risk, they would have refrained from conception or discontinued the pregnancy. See, for example, [page 656] Mickle v. Salvation Army Grace Hospital, Windsor Ontario, 1998 14934 (ON SC), [1998] O.J. No. 4683, 166 D.L.R. (4th) 743 (Gen. Div.) (failure to detect congenital limb deformities in foetus during ultrasound examination); Jones (Guardian ad litem of) v. Rostvig, [1999] B.C.J. No. 647, 44 C.C.L.T. (2d) 313 (S.C.) (failure to prescribe amniocentesis and other pre-natal tests that would have indicated Down’s Syndrome in foetus); McKay, supra (failure to diagnose in utero rubella); Becker v. Schwartz, 386 N.E. 2d 807 (N.Y. 1978) (failure to provide advice concerning availability of amniocentesis to test for Down’s Syndrome in foetus). [Emphasis added.]

[157] The court in Bovingdon rejected the submission that the doctor could owe a duty to a future child to properly inform a mother of the risks associated with a fertility drug. Instead, the court held that the doctor’s duty was to the mother, as the patient, and that it was the mother’s choice as to whether to proceed with the pregnancy – similar to a woman’s right to choose whether to have an abortion and the concurrent protection from tort liability for women who make the choice to terminate pregnancy: at paras. 62-64.

[158] The court further held that a doctor could not owe a “co-extensive” duty to both the mother and the future child for a lack of informed consent to the mother. Feldman J.A. held, at paras. 70-71:

I conclude that in this case, the appellant had no duty of care to the future children not to cause them harm in prescribing Clomid to the mother. The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth.

I also believe that a policy analysis supports the conclusion that where the standard of care requires a doctor to give a woman the information to make an informed decision about taking a drug or undergoing a procedure, the doctor cannot owe a co-extensive duty to a future child. Where the standard of care on the doctor is to ensure that the mother's decision is an informed one, a co-extensive duty of care to a future child would create a potential conflict of interest with the duty to the mother. If future children have a right to a drug-free birth, as the respondents suggest, then doctors might decide to deny women the choice of taking Clomid on the basis that providing such choice might be a breach of the doctor's duty to the unborn children. In my view, the policy of ensuring that women's choice of treatment be preserved supports the conclusion that the doctor owed no legal duty to the unborn children in this case. [Emphasis added.]

[159] Consequently, the decision in Bovingdon was based on its analysis under the Anns test, finding no duty of care owed to the future child by either the doctor or the mother in circumstances where the child alleges that they would not have been born if the mother had received informed consent as to the risks of the birth of the future child. The court held that basing a duty of care on whether a claim could be labelled as “wrongful life” was not a principled approach to liability: at paras. 41-42, 46-47, 55-56, 61, and 72.

[160] The duty of care analysis and the policy concerns in Bovingdon apply to any “wrongful life” claim (regardless of the label affixed to the claim), whether for lack of consent on a pre-conception basis such as the risks of fertility drug treatment, or on a post-conception basis for complications such as abnormalities on ultrasounds or the risks of giving birth upon contracting rubella during pregnancy.

(b) Paxton

[161] In Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, leave to appeal refused [2008] S.C.C.A. No. 508, the court again dismissed a “wrongful life” claim for damages suffered as a result of being born. In this case, the alleged negligence was for failure to provide informed consent to a potential mother before prescribing Accutane, an acne medication that was known to carry a risk of fetal malformation.

[162] The court conducted an extensive review of the case law and held that there was no duty of care owed by a doctor to a future child for being born as a result of lack of informed consent to the mother. The court held that the same rationale for finding no duty of care applied whether the lack of informed consent arose at a pre-conception or a post-conception stage. Feldman J.A., speaking for the court, set out the issue, at para. 1:

Where a doctor looks after a woman who is pregnant or who may become pregnant, the doctor owes a duty of care to the woman as the patient. In discharging this duty of care, a doctor must always consider and advise the woman of the material risks of any prescription or procedure on a potential future child. The issue in this case is whether a doctor also owes a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient. [Emphasis added.]

[163] The court reiterated that its analysis applied to a lack of informed consent at either the pre-conception or post-conception stage, at para. 38:

The question of a doctor’s legal proximity with a future child (whether conceived or not yet conceived) at the time of the doctor's impugned conduct has been considered by Canadian courts in a number of contexts. [Emphasis added.]

[164] The court adopted the decision of the High Court of Australia in Harriton v. Stephens, [2006] HCA 15, (2006) 226 A.L.R. 391, which held that no duty of care could be owed to a future child in the “post-conception” situation of a failure to advise a mother about the risks of birth after contracting rubella in pregnancy.

[165] In Harriton, the physician failed to provide a patient who had contracted rubella during her first trimester of pregnancy with information about the likelihood of the child being born with a congenital disability. Consequently, the plaintiff’s mother was not able to make an informed choice about whether to terminate the pregnancy. The court in Paxton explicitly agreed with the majority in Harriton that the doctor did not owe a duty of care to the future child, at paras. 72-73:

In the cases before the Court, the relationship is mediated through the parents, to whom the provider of medical services owes duties which overlap, in substantial measure, with those said to be owed to the child. … The persons whom the medical provider “ought reasonably to have in contemplation”, in Lord Atkin's words, are, in my opinion, the parents, particularly the mother. Any decision will be theirs or hers alone. Whether they, or she, take into consideration the interests of the child is a matter for them, or her.

I agree. The doctor acts by providing advice and information to the mother, including, where teratogenic drugs are being prescribed, the potential effects on a fetus. In the case of a drug that is not teratogenic, and where the only issue is informed consent, the patient takes the information and makes the decision. … Because women are autonomous decision makers with respect to their own bodies, they neither make the decision on behalf of the future child, nor do they owe a duty to act in the best interests of a future child: [citing (Litigation Guardian of) v. Dobson, 1999 698 (SCC), [1999] 2 S.C.R. 753, at pp. 780-81; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 336 (SCC), [1997] 3 S.C.R. 925, at pp. 947-49] [Emphasis added.]

[166] The court in Paxton confirmed that the informed consent duty is owed only to a patient who is pregnant or who may become pregnant. The duty is to provide that patient with information to make decisions about her pregnancy, whether choosing to take medication despite risks to the future child or whether to terminate her pregnancy given the possibility that a future child would be born with congenital disabilities. Recognizing a physician’s duty to the future child to provide such information to the patient would create an irreconcilable conflict of interest. Feldman J.A. set out this principle for both pre-conception and post-conception lack of informed consent, at para. 76:

The conflicting duties that would be owed by a doctor to a female patient and to her future child (whether conceived or not yet conceived) in prescribing medication to the female patient, together with the indirect relationship between a doctor and a future child, reflect two aspects of the same reality. Because the woman and her fetus are one, both physically and legally, it is the woman whom the doctor advises and who makes the treatment decisions affecting herself and her future child. The doctor's direct relationship and duty are to the female patient. That relationship and that duty of care prevent a relationship of the requisite proximity between the doctor and future child because the interests of the mother and her future child may possibly conflict, as noted by the Supreme Court of Canada in Winnipeg Child and Family Services, at p. 949. [Emphasis added.]

[167] The effect of imposing conflicting duties on doctors treating women who are pregnant or who may become pregnant could have significant effects on treatment. In Paxton, Feldman J.A. held, at para. 68:

These conflicting duties could well have an undesirable chilling effect on doctors. A doctor might decide to refuse to prescribe Accutane to a female patient, even where it is indicated and the patient agrees to fully comply with the PPP [pregnancy prevention program], in order to avoid the risk of a lawsuit brought by a child who is conceived despite compliance with the PPP or because the mother fails to comply with the PPP. Thus, imposing a duty of care on a doctor to a patient’s future child in addition to the existing duty to the female patient creates a conflict of duties that could prompt doctors to offer treatment to some female patients in a way that might deprive them of their autonomy and freedom of informed choice in their medical care.

[168] In addition to a lack of proximity, the court in Paxton relied on policy reasons to deny a duty of care. Feldman J.A. held, at para. 79:

Another implication for society as a whole is that, until a child is born alive, a doctor must act in the best interests of the mother. This obligation is consistent with society’s recognition of the need to preserve a woman’s “bodily integrity, privacy and autonomy rights”: Dobson, at p. 769.

[169] In addition, wrongful life claims raise the impossibility of determining damages for a life with disabilities as compared to living no life at all. Canadian courts, and courts across the Commonwealth, have refused to make this comparison. In Paxton, at para. 44, the court cited the concern as expressed in McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771 (C.A.) at p. 790:

To my mind, the most compelling reason to reject this cause of action is the intolerable and insoluble problem it would create in the assessment of damage. … In a claim for wrongful life how does the court begin to make an assessment? The plaintiff does not say, “But for your negligence I would have been born uninjured”; the plaintiff says, “But for your negligence I would never have been born.” The court then has to compare the state of the plaintiff with non-existence, of which the court can know nothing; this I regard as an impossible task.

[170] Similarly, in Harriton, the court held, at paras. 258-59:

It is odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities.

In the eyes of the common law of Australia all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection. [Emphasis added.]

[171] Consequently, the decision in Paxton, and the cases relied upon therein, demonstrate that the wrongful life claim brought by Isha discloses no cause of action. The plaintiffs’ attempt to distinguish the cases on whether the lack of informed consent arose pre-conception or post-conception is not supported by Paxton.

(c) Florence

[172] In Florence v. Benzaquen, 2021 ONCA 523, 462 D.L.R. (4th) 251, leave to appeal refused, [2021] S.C.C.A. No. 335, the court struck the wrongful life claim and confirmed the principles arising from its earlier wrongful life cases in Bovingdon and Paxton.

[173] The plaintiff children sought to distinguish their wrongful life claim from the settled law on the basis that the doctor in Florence allegedly was negligent in prescribing a contraindicated fertility drug. Gillese J.A. rejected that distinction, noting that the claim remained one for wrongful life, at paras. 15 and 36:

The motion judge described a claim for wrongful life as one asserted by the child for a pregnancy that results in birth defects and where the child argues that, but for the negligence of the doctor, the child would not have been born.

The motion judge said that the difference between the Appellants’ claims and those of the twins in Bovingdon was a “distinction without a difference” because the additional allegation did not change the analysis necessary to determine if a duty of care was owed to the unconceived children. I agree.

[174] The court relied on its earlier decisions in Bovingdon and Paxton and held that no duty of care could be owed to the future child for such a claim, even if there was also a claim that the doctor negligently prescribed medication to the mother: at paras. 60-61, and 68-72. Gillese J.A. concluded, at para. 73:

The conflict of interest consideration is part of the policy analysis in the stage one Anns analysis. Policy considerations are necessarily general in nature. In general, doctors would be placed in a conflict of interest position if they owed a duty of care to their patient and to that patient’s future, unconceived children. While there might be situations in which no such conflict arises in respect of a particular medication or treatment, that does not derogate from the general policy concern that doctors would be placed in an unworkable position due to the inherent conflict of interest that would arise if they were found to owe a duty of care both to their patient and that patient’s future children. The motion judge made no error in concluding that such a concurrent duty of care would place the doctor in an impossible position.

[175] In the present case, the factual distinction raised by the plaintiff in Florence (which was not accepted by the court in any event) does not even arise. There is no issue of prescribing a contraindicated drug in addition to a lack of informed consent.

[176] Rather, the claim in the present case is based only on a lack of informed consent. This case therefore follows settled post-conception informed consent cases (such as Harriton and McKay) relied upon by the Court of Appeal in Bovingdon and Paxton.

[177] The facts in the present case are the same as those in the settled law: (i) the defendant physicians did not cause the injury to the future child, since Isha’s spina bifida existed independently of their care; and (ii) the basis for Isha’s claim is the lack of information given to her mother to enable her mother to make an informed decision about terminating the pregnancy and preventing Isha’s birth.

[178] For the above reasons, it is settled law that no duty of care can exist to a future child based on a “wrongful life” claim that the child would not have been born if the doctor had advised the mother about the risks of the birth, regardless of whether the lack of informed consent arose pre-conception or post-conception.

[179] Consequently, Isha’s claim does not disclose a cause of action.

Order and Costs

[180] For the above reasons, I dismiss the defendants’ motion for summary judgment seeking to dismiss Sejal’s wrongful birth claim. I grant the defendants’ motion for summary judgment to dismiss Isha’s wrongful life claim.

[181] There was divided success on the motion. If the parties cannot agree on costs, (i) both parties shall each deliver written costs submissions of no more than three pages (not including a costs outline) by September 19, 2022, and (ii) both parties shall deliver responding costs submissions of no more than three pages by October 3, 2022. Each party may submit brief reply costs submissions of no more than one page by October 10, 2022.

GLUSTEIN J.

Date: 2022-08-26

COURT FILE NO.: CV-16-565629

DATE: 2022-08-26

ONTARIO SUPERIOR COURT OF JUSTICE

ISHA JOSHI, a minor by her Litigation Guardian, SEJAL JOSHI, THILLAINATHAN KATHIRAVELU, and the said SEJAL JOSHI personally Plaintiffs

AND:

U. CHADA, L. PADMORE, and J. DOES 1-3 Defendants

REASONS FOR DECISION Glustein J.

Released: August 26, 2022

[^1]: Mr. Kathiravelu filed no evidence on the motion. Counsel for the plaintiffs advised that he intended to discontinue Mr. Kathiravelu’s claim and did not object to the dismissal against him.

[^2]: The Ultrasound was conducted at 19 weeks gestation. There was an earlier ultrasound conducted at 9 weeks gestation which did not disclose spina bifida and is not at issue in the present case.

[^3]: The three appellate cases in Ontario are Bovingdon v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 92; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, leave to appeal refused [2008] S.C.C.A. No. 508; and Florence v. Benzaquen, 2021 ONCA 523, 462 D.L.R. (4th) 251, leave to appeal refused, [2021] S.C.C.A. No. 335.

[^4]: The motion for summary judgment on Sejal’s claim was only brought on the basis that it was statute-barred. Consequently, I make no finding on whether there is a genuine issue requiring trial as to whether Dr. Chada could be liable on the merits of the claim against her.

[^5]: The defendants also suggest in their factum that Sejal’s pregnancy was “helpful” to her application for her husband to emigrate to Canada, inferring that Sejal might have decided not to terminate the pregnancy because it might have assisted her husband’s immigration status. However, Sejal was not asked about the inference raised in the factum on cross-examination, and the suggestion that Sejal chose to have a child with spina bifida (rather than terminate the pregnancy) for reasons of immigration status is an inference that I am not prepared to draw on a summary judgment motion.

[^6]: On cross-examination, Sejal acknowledged that it was possible that she made such a statement.