COURT FILE NO.: CV-17-575874
DATE: 20221130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NAZARHA RASUL and AMJAD RAHAMAN
Plaintiffs
– and –
DR. PATRICK WHELAN, DR. AVIDIS BOUDAKIAN and MARKHAM STOUFFVILLE HOSPITAL
Defendants
Ismail Idowu Salih, for the Plaintiffs
Caroline Humphrey, for the Defendant,
Dr. Patrick Whelan
HEARD (By Videoconference):
August 23, 2022 (Supplementary written submissions delivered November 25, 2022)
A.A. SANFILIPPO J.
REASONS FOR DECISION
Overview
[1] Nazarha Rasul was 74 years old when she attended the emergency department of Markham Stouffville Hospital on June 16, 2012, complaining of abdominal pain. A CT scan was performed and revealed pan-colonic diverticulitis. Ms. Rasul was referred to Dr. Patrick Whelan, a general surgeon. Dr. Whelan saw Ms. Rasul on June 29, 2012 and recommended that she undergo a colonoscopy for an endoscopic assessment of the diverticular disease. Dr. Whelan conducted the colonoscopy days later on July 3, 2012. The colonoscopy showed diverticulosis and evidence of diverticulitis. On September 20, 2012, Dr. Whelan performed a laparoscopic left colon resection to address Ms. Rasul’s diverticular disease.
[2] Post-operatively, Ms. Rasul experienced abdominal, pelvic, and rectal pain that necessitated an exploratory laparoscopy on October 6, 2012, which resulted in the detection of an injury to her ureter. This was addressed by a further operative procedure on October 9, 2012 to insert a stent in Ms. Rasul’s left ureter. Ms. Rasul underwent stent removal and stent re-insertion procedures in three further operative procedures until February 6, 2013, at which time she was referred to a nephrologist, Dr. Simon Y.T. Tsui. The referral to a medical doctor who specializes in the diagnosis, treatment and management of kidney problems and diseases was because the injury to Ms. Rasul’s left ureter had the potential to damage her kidneys.
[3] On April 26, 2016, Dr. Tsui reported that a renal scan showed that Ms. Rasul had severely reduced functioning in her left kidney.
[4] Ms. Rasul and her son, Amjad Rahaman, brought this action on May 25, 2017, claiming that the damage to Ms. Rasul’s left kidney was caused by medical malpractice. Although the Plaintiffs also sued Dr. Avidis Boudakian and the Markham Stouffville Hospital (the “Hospital”), the Plaintiffs did not serve Dr. Boudakian and reached an agreement to dismiss this action as against the Hospital. The Plaintiffs continue this action against Dr. Whelan only, who I will at times refer to as the “Defendant”.
[5] Dr. Whelan brought this motion to summarily dismiss this action as statute barred by expiry of the two-year limitation period provided by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Limitations Act”). The Defendant submitted that this limitation defence does not give rise to any genuine issue requiring a trial and ought to be determined on summary motion.
[6] The Plaintiffs say that their action does not contravene the Limitations Act because it was brought within two-years of when they discovered their claim for damage to Ms. Rasul’s left kidney. The Plaintiffs do not seek damages arising from the damage caused to Ms. Rasul’s ureter. Rather, they claim that this legal proceeding was only an appropriate means to seek a remedy for kidney damage when that injury had occurred. The Plaintiffs contend that the limitation defence raises genuine issues requiring a trial.
[7] On the basis of the reasons that follow, I have determined that the Defendant’s limitation defence raises genuine issues requiring a trial and will thereby be left for determination by the trial judge. This motion is thereby dismissed.
I. THIS MOTION
[8] Dr. Whelan initiated this motion over two years ago, on June 18, 2020, and sought the dismissal of this action on three grounds: (i) dismissal for delay; (ii) summary judgment under Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the Plaintiffs failed to deliver an expert report in support of their medical malpractice claim; and (iii) summary judgment granting dismissal based on the limitation defence. The dismissal sought based on delay was abandoned, and the dismissal sought based on failure to deliver an expert report was withdrawn upon the Plaintiffs’ delivery of an expert medical report dated July 15, 2022, authored by Dr. Sami A. Chadi, a general surgeon.
[9] This motion proceeded for the determination of whether the Plaintiffs’ action against the only remaining defendant, Dr. Whelan, is statute-barred by expiry of the limitation period set out in the Limitations Act. Implicit in this issue is whether this is an appropriate matter for summary judgment under Rule 20.
II. THE FACTS
[10] On a motion for summary judgment, the court will first determine if there is a genuine issue requiring a trial based only on the evidence presented, without turning to the fact-finding powers in sub-rule 20.04(2.1). This involves an analysis of the evidentiary record. Dr. Whelan’s summary judgment motion rested mainly on: (i) admissions made by the Plaintiffs in their Statement of Claim; (ii) the affidavit sworn on April 7, 2022 by Mr. Rahaman, with exhibits which included medical records; and (iii) Mr. Rahaman’s evidence in his cross-examination.
[11] I will explain the facts that I have found based on the evidentiary record in this motion.
A. Dr. Whelan’s Treatment from June 29, 2012 to October 14, 2012
[12] Ms. Rasul had a history of diverticulitis. On June 16, 2012, she presented at the Hospital’s Emergency Department with complaints of abdominal pain. She was seen by Dr. Whelan, a general and laparoscopic surgeon, and again on June 29, 2012. Dr. Whelan’s Consultation Report records his recommendation that Ms. Rasul undergo a colonoscopy to determine the nature of her bowel inflammation, and that “she may require bowel resection as she complains quite vociferously of her discomforts”.
[13] On July 3, 2012, Dr. Whelan performed a colonoscopy on Ms. Rasul. He recorded in his Operative Procedure Note that he observed “marked diverticulosis and even some evidence of diverticulitis”. Dr. Whelan recorded that “this diverticular disease I am sure is the cause of her symptoms and she may actually in fact be a candidate for a laparoscopic bowel resection for alleviation of her symptoms.”
[14] On September 20, 2012, Dr. Whelan performed a laparoscopic left colon resection to treat Ms. Rasul’s diverticular disease (the “September 2012 Procedure”). Dr. Whelen’s Operative Procedure Note of the September 2012 Procedure records that: “During the course of this dissection, there was some sparking and we noted that the cautery had been set at 40, we reduced it for the remainder of the dissection.”
[15] The Hospital Records show that after the September 2012 Procedure, Ms. Rasul experienced severe abdominal, pelvic, and rectal pain and was treated with morphine and pain medications. The Consultation Note of Dr. Avidis Boudakian, a general neurologist, showed that by October 6, 2012, Ms. Rasul had developed fluid in her intraperitoneal cavity. Ms. Rasul remained in the Hospital until October 14, 2012, and underwent the following investigations and procedures:
(a) Dr. Avidis Boudakian noted that on October 5, 2012, a CT scan was performed “which demonstrated slight worsening of hydronephrosis (swelling of the kidney) on the left side, although it was quite minimal”.
(b) On October 6, 2012, Ms. Rasul returned to the operating room and underwent an exploratory laparoscopy, performed by surgeon Dr. Alan F. Ing, to investigate the slight worsening of hydronephrosis on the left side which had been revealed the day before by a CT scan. Dr. Ing reported, in his Operative Procedure Note of October 6, 2012, that Ms. Rasul continued to have abdominal pain and deep pelvic and rectal pain, and found that fluid was present in Ms. Rasul’s intraperitoneal cavity. Dr. Ing reported a concern that Ms. Rasul could have urine in her peritoneal cavity and requested an interoperative consultation with Dr. Boudakian for assessment of a possible injury to her ureter (tube that carries urine from the kidney to the urine bladder) or leak.
(c) On October 9, 2012, Ms. Rasul returned to the operating room to investigate a possible leak from her ureter. Dr. Boudakian reported a leak of contrast “at the junction of the lower and mid ureter near the top of the sacrum”. Dr. Boudakian recorded, in his Operative Procedure Note of October 9, 2012, that he performed a bilateral retrograde pyleogram (x-ray of the urinary tract), left ureteroscopy and left stent insertion procedure (tube inserted to keep the passageway open). Dr. Boudakian reported that the stent inserted at the left side ureter would be left in place for a month, to assist in drainage.
[16] Dr. Whelan’s Final Note of October 14, 2012 records that he discharged Ms. Rasul from Hospital on October 14, 2012, 24 days after the September 2012 Procedure. Dr. Whelan reported that the September 20, 2012 laparoscopic left colon resection was “uneventful”, but that “post-operatively the patient developed some significant abdominal pain … that demonstrated intra-abdominal fluid”. Dr. Whelan reported that “a diagnosis of uretic leak was made” and treated through the insertion of a stent by Dr. Boudakian. Dr. Whelan wrote that “the stent will require removal in the future.”
B. Ms. Rasul’s Condition Post-Discharge to the Referral to Dr. Tsui
[17] Dr. Boudakian’s Operative Procedure Report of the procedure conducted on November 7, 2012 records that he removed Ms. Rasul’s stent under local anesthetic. Dr. Boudakian recorded that Ms. Rasul was “quite bothered by the stent” and that it was causing her bladder irritation and flank discomfort. He diagnosed Ms. Rasul with ureteral trauma.
[18] In his Operative Procedure Report of December 1, 2012, Dr. Boudakian reported that a CT scan taken some three weeks after the stent removal “demonstrates a significant stricture in the lower portion of the ureter just at the pelvic brim.” On December 1, 2012, Dr. Boudakian reinserted a stent in Ms. Rasul’s left ureter, under local anesthetic, with the intention that it would be left in place for about 10 weeks. Dr. Boudakian diagnosed Ms. Rasul with a left ureteral stricture.
[19] In his Operative Procedure Report of February 6, 2013, Dr. Boudakian noted as follows:
This unfortunate 73-year-old woman who had an iatrogenic complication following laparoscopic colon surgery has a persistent ureteral stricture. She has been quite uncomfortable with her stent which has been in place since December 1 and has requested it to be removed. It has been about eight weeks now and it seemed reasonable for her to be brought in for stent removal.
[20] On February 6, 2013, Dr. Boudakian removed Ms. Rasul’s stent and performed a cystoscopy and retrograde pyelogram and stent removal on Ms. Rasul under local anesthetic. He found that there was “still a minimal narrowing the mid ureter in the same place as it had been previously.”
[21] Mr. Rahaman deposed that after Dr. Boudakian’s removal of Ms. Rasul’s second stent, Dr. Boudakian told him, in the Fall or Winter of 2014, that Ms. Rasul’s kidney was swollen, but that instead of putting her through the insertion of a third stent, Dr. Boudakian would refer Ms. Rasul to a nephrologist. Mr. Rahaman testified in cross-examination that he understood from Dr. Boudakian, as of the Fall or Winter of 2014, that the referral to a nephrologist was because Ms. Rasul could have kidney damage resulting from the injury to her ureter.
C. Dr. Tsui’s Reporting – July 2014 to April 2016
[22] Mr. Rahaman deposed that since the Hospital nephrologist had a long waiting time, he arranged for Ms. Rasul’s family physician, Dr. V. Jindal, to refer her to a nephrologist with a shorter waiting time, Dr. Simon Y.T. Tsui.
[23] The record contains one-page of Dr. Tsui’s consultation report of July 14, 2014. The complete document was not tendered into evidence. Dr. Tsui recorded that Ms. Rasul presented as a “76-year-old lady with concern about a CT scan showing renal cortical thinning in March 2013”. Dr. Tsui wrote that “the CT scan done March 2013 shows there is cortical thinning of the left kidney and there is also left sided pelvicaliectasis and also hydroureter.”
[24] In his Consultation Report dated May 22, 2015, Dr. Tsui reported that he would order a renal scan for Ms. Rasul, considering that “the patient is keen to know the differential function of both kidneys and to see how much damage on the left side is contributing to the overall function”. Mr. Rahaman testified, in cross-examination, that he requested the renal scan for his mother based on Dr. Boudakian’s report to him that Ms. Rasul could have swelling.
[25] In the Consultation Report dated April 26, 2016, Dr. Tsui reported that the renal scan had been conducted and showed that Ms. Rasul’s left kidney had barely any function, and that, in his view, this was because of the longstanding issues on her left side (the “April 2016 Report”):
Basically, [the renal scan] showed the left kidney functionally severely reduced. … so the comment by the radiologist is that the left kidney shows barely any function. I think that is because of the longstanding hydronephrosis and hydroureter on the left side, so it may not have any function at all.
[26] Mr. Rahaman deposed that upon receiving Dr. Tsui’s reporting that Ms. Rasul’s left kidney functioning was severely reduced, he and his mother decided to bring a claim against Dr. Whelan and others for damages.
III. THE CLAIM
[27] On May 25, 2017, the Plaintiffs issued a Notice of Action that claimed the following relief, plus pre-judgment interest and costs:
- The plaintiffs’ claim is for: (a) Damage to Nazarha Rasul’s left kidney as a result of the negligence of Dr. Whelan, Dr. A Boudakian and Markham Stouffville Hospital.
[28] The Plaintiffs pleaded in their Statement of Claim that the September 2012 Procedure resulted in damage to Ms. Rasul’s ureter which caused kidney damage:
The Plaintiff Nazarha Rasul was again seen by Dr. Whelan on September 20, 2012 for a Laparoscopic left colon resection procedure, resulting in a ureteric injury causing ureteric stenosis requiring multiple procedures, including a ureteric stent placement, removal and reinsertion. The damage to the ureter resulted in left kidney failure.
The Plaintiff Nazarha Rasul states that she suffered from a left kidney failure.
[29] The Plaintiffs allege that Dr. Whelan was negligent in the treatment of Ms. Rasul in the following ways:
(a) Failure to properly set the cautery during the July 3, 2012 colonoscopy, causing damage to Ms. Rasul’s left ureter.
(b) Failure to diagnose the damage caused to Ms. Rasul’s left ureter during the September 2012 Procedure.
(c) Failure to identify the abdominal wall and ureter laterally.
(d) Failure to take further investigatory steps and to refer Ms. Rasul for further surgery.
(e) Failure to recommend and employ further investigatory and diagnostic tests to diagnose renal failure before Ms. Rasul’s left kidney failed, when he knew that failure to do so would likely cause Ms. Rasul to have life threatening renal failure.
[30] The Defendant denied any liability, and specifically denied that he was negligent in his treatment of Ms. Rasul.
IV. ISSUES
[31] This motion raised two issues for determination:
(a) Is a summary judgment motion appropriate for determination of this dispute?
(b) Is the Plaintiffs’ action statute barred by expiry of the two-year limitation set out in the Limitations Act?
V. ANALYSIS
A. Principles Applicable to Summary Judgment
[32] In this motion, brought under Rule 20.01(3), for the Defendant to obtain summary judgment dismissing the Plaintiffs’ claim, the Defendant must show that: (i) there is no genuine issue requiring a trial regarding his limitation defence; and (ii) the limitation defence must be determined in favour of the Defendant.
[33] The burden of persuading the court, through evidence, that there is no genuine issue requiring a trial rests with the moving party. A defendant moving for summary dismissal based on a limitation defence has the burden of establishing that there is no issue requiring trial about its limitation defence: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252 at para. 33. This burden shifts to the responding party only after the moving party has discharged its evidentiary burden of establishing that there is no genuine issue requiring trial: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30; Connerty v. Coles, 2012 ONSC 5218, at para. 9.
[34] Rule 20.04(2)(a) provides that if a court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, the court shall grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court explained, at para. 49, that: “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.” This occurs when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”: Hryniak, at para. 49.
[35] The summary judgment process must provide the judge with the evidence required to adjudicate the dispute. In Hryniak, at para. 66, the Supreme Court explained, “There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).”
B. The Limitation Issue
[36] The two-year basic limitation period provided by s. 4 of the Limitations Act starts to run when the claim is “discovered”. The discoverability principle is statutorily codified in s. 5 of the Limitations Act, which provides as follows:
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).
[37] The determination of when a claim emerges from mere suspicion to discoverable is a fact-based inquiry: Andrews v. Pattison, 2022 ONCA 267, at para. 5, citing Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 23. The elements that must be established to satisfy the requirements of section 5(1)(a) of the Limitations Act are conjunctive: Longo v. McLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 41. All must be established.
[38] The Limitations Act contains both a subjective and objective assessment of when a claim is discovered. The limitation period is not activated until the plaintiff is actually aware of all the elements in section 5(1)(a) or until a reasonable person with the abilities, and in the circumstances, of the plaintiff first ought to have known of all these matters, under s. 5(1)(b): Longo v. McLaren Art Centre Inc., at para. 41; Van Allen v. Vos, 2014 ONCA 552, 121 O.R. (3d) 72, at paras. 33 and 34; Castronovo v. Sunnybrook & Women’s College Health Sciences Centre, 2008 CanLII 1174 (Ont. S.C.J.) at para. 54. For the summary judgment motion to be successful, if subjective discoverability is not proven under s. 5(1)(a), objective discoverability must be shown under s. 5(1)(b), and where both are established, the limitation will begin on the earlier of the two dates.
[39] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at para. 29, the Supreme Court explained that there are three rationales for imposing limitation periods. First, they are “guarantees of repose”, or “statutes of repose” as characterized in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 at pp. 29-30 (S.C.C.). In M. (K.), the Supreme Court explained, at p. 29 that “[t]here comes a time, it is said, when the potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations.” Second, they recognize that evidence becomes stale with the passage of time and recognize “the desire to foreclose claims based on stale evidence:” Grant Thornton, at para. 29. Third, statutes of limitation are an incentive for plaintiffs to bring their claim for damages in a timely manner: “the plaintiffs are expected to act diligently and not sleep on their rights”: M. (K.), at p. 29. Also see Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 at p. 563 and Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808.
[40] Section 5 of the Limitations Act statutorily codifies the principle of “discoverability”: Grant Thornton, at para. 35; Galota v. Festival Hall Developments Limited, 2016 ONCA 585, 133 O.R. (3d) 35. The “discoverability” principle has its roots in equity and provides that a limitation period will not start to run until the plaintiff has knowledge, or reasonably ought to have had knowledge, of the material facts on which the cause of action is based: Grant Thornton, at para. 29. “Discoverability” of a cause of action is a general rule applied to avoid the injustice of depriving a plaintiff of the opportunity to bring an action before that party knows to raise it: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147 at p. 224; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.
[41] In Grant Thornton LLP, Justice Moldaver explained the discoverability principle in consideration of the New Brunswick Limitations of Actions Act, S.N.B. 2009, c. L-8.5 (the “N.B. Limitations Act”). Sections 5(2)(a) to (c) of the N.B. Limitations Act mirror ss. 5(1)(a)(i) to (iii) of the Limitations Act, but the N.B. Limitations Act does not contain an equivalent to s. 5(1)(a)(iv) of the Limitations Act: specifically, the requirement that the plaintiff must discover that “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.”
[42] Justice Moldaver stated that “a claim is discovered when a 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. 42. Justice Moldaver explained that this requires “more than mere suspicion or speculation”, but stops short of requiring that the plaintiff has discovered the “exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run”: Grant Thornton, at para. 46.
[43] This calls for a balancing of competing objectives. The core value of the discoverability principle - namely that it is unfair to deprive a plaintiff from bringing a claim before the plaintiff can reasonably be expected to know that the claim exists - must be tempered by the principle that the claimant does not need to know the exact extent or type of harm that has been suffered before the claim is discovered and the limitation period thereby begins to run.
[44] This balancing of competing objectives in limitations law is highlighted by considering Justice Moldaver’s findings in Grant Thornton with the Court of Appeal’s decision in Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, which was released in the months before Grant Thornton. The Supreme Court’s casting of discoverability triggered by a “plausible inference of liability” stands in contrast to the Court of Appeal’s finding in Kaynes that for discoverability to be triggered the plaintiff must have discovered both a “claim”, as defined by s. 1 of the Limitations Act, and a cause of action. Justice Feldman’s analysis considered s. 5(1)(a)(iv) of the Limitations Act, which requires that discoverability include the plaintiff’s knowledge that a proceeding, which definitionally is based on a cause of action, is an “appropriate means” to address the wrong: para. 57. This statutory provision was not before the Supreme Court in Grant Thornton because the N.B. Limitations Act does not have a statutory equivalent to s. 5(1)(a)(iv) of the Ontario Limitations Act.
[45] The balancing required of these objectives goes beyond the Defendant’s principal submission in this motion that this action is limitation barred because the limitation period began to run when the Plaintiffs discovered “some damage”, here in the form of the ureter injury. The principle that the limitation begins to run when “some damage” has been sustained has straightforward application to a case where there is a direct connection between liability and damages and the only questions regarding damages are “when” they will occur (due to their inevitability), and “how much” harm will be caused (due to their inevitable growth). This is seen in Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R (4th) 657, where the Court of Appeal found that the claim was discovered when the City of Hamilton knew that the bank notes that it purchased through misrepresentation were defective, and not later when the bank notes matured, and the debtor defaulted in payment. The fact that the City did not know the full extent of its monetary loss on the bank notes did not prevent discoverability of its claim in misrepresentation.
[46] The Supreme Court decision in Peixeiro is often quoted for Justice Major’s finding, at para. 18, that: “Once the plaintiff knows that some damage has occurred and has identified the tortfeasor … the cause of action has accrued. Neither the extent of damage nor the type of damage need be known” and that “the exact extent of the loss need not be known for the cause of action to accrue.”
[47] Interestingly, in Peixeiro, the application of this principle resulted in rejection of the limitation defence. In Peixeiro, the Plaintiff sustained personal injury in a motor vehicle accident in October 1990. The Plaintiff was involved in a second motor vehicle accident in January 1992 and, in June 1993, discovered that he had a herniated disc requiring surgery, resulting in permanent and serious injury. In December 1993, the Plaintiff sued the defendant motorists from both accidents. The defendant in the 1990 action raised the two-year limitation defence, pleading that the Plaintiff had discovered personal injury arising from that accident within two years and had not sued in time.
[48] There was no question that Mr. Peixeiro had sustained a back injury and was aware of it after the first accident. It was of such severity that he was off work for 13 months. However, the Supreme Court held that the limitation period did not begin to run until over two years later upon the discovery by CT scan of the herniated disc because that resulted in reasonable discoverability that the Plaintiff’s injury met the statutory threshold set out in the Insurance Act (codified then as s. 266(1)) that permitted only claims for “permanent serious impairment of an important bodily function”. Even though the plaintiff had knowledge of his injuries and the cause of them by the tortfeasor, the Supreme Court found that it would not be fair to require the plaintiff to bring a legal proceeding until he discovered that the nature of his injury worsened to the point that his claim exceeded the statutory threshold.
[49] The finding in Peixeiro, that reasonable discoverability includes assessment of when a legal proceeding is an appropriate means to seek a remedy, provides the backdrop to consideration of s. 5(1)(a)(iv) of the Limitations Act. As Justice Major explained in Peixeiro, at para. 36, it is unjust to preclude a claim before a person can raise it: “Since this Court’s decisions in Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, and Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at p. 224, discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it.”
[50] As Justice LaForme explained in Hamilton City, at para. 54, “damage” is different from “damages”:
The City’s position that damage occurred when the Devonshire notes matured also fails to appreciate the distinction between damage and damages. Damage is the loss needed to make out the cause of action. Insofar as it relates to a transaction induced by wrongful conduct, as I have explained, damage is the condition of being worse off than before entering into the transaction. Damages, on the other hand, is the monetary measure of the extent of that loss. All that the City had to discover to start the limitation period was damage. [Emphasis in original]
[51] These legal principles guide my consideration of whether the Defendant has discharged his burden of establishing that there is no genuine issue for trial regarding the four elements of s. 5(1) of the Limitations Act. I begin with s. 5(1)(a)(i): “the day on which the person with the claim first knew (i) that the injury, loss or damage had occurred”.
[52] I accept that the factual events detailed in the “Facts” section of these reasons, and the factual allegations relied on by the Plaintiffs in their Statement of Claim, all occurred more than two years before the May 25, 2017 issuance of the Notice of Action except one: Dr. Tsui’s reporting on April 26, 2016 of his finding that Ms. Rasul has kidney damage.
[53] The Defendant submitted that Ms. Rasul’s kidney damage is just “more damage” to the “some damage” resulting from the injury to the ureter. I do not see a sufficient evidentiary basis on this motion to support this finding. I acknowledge that there are references in Dr. Tsui’s incomplete note of July 14, 2014 (only one page of this Consultation Note was tendered into evidence) of renal cortical thinning and left sided pelvicaliectasis and hydroureter, but there is no evidence of the medical or scientific nature or significance of these findings. There was no evidence on which to determine the role of these findings in the eventual discovery of kidney failure. Mr. Rahaman admitted in cross-examination that he understood that Dr. Boudakian’s referral to a nephrologist was because Ms. Rasul could have kidney damage resulting from the injury to her ureter. However, there is no evidence in the motion record from Ms. Rasul. And there was insufficient evidence to assess whether “a reasonable person with the abilities and in the circumstances of” Ms. Rasul would have discovered this claim, as required for assessment under s. 5(1)(b) of the Limitations Act.
[54] I accept that Ms. Rasul discovered injury to her left ureter soon after Dr. Whelan’s conduct of the September 2012 Procedure. She was required to undergo stent insertion and removal procedures conducted by Dr. Boudakian on October 9, November 7, and December 1, 2012, and on February 6, 2013. I find that Ms. Rasul discovered injury, loss or damage to her left ureter by October 9, 2012 and, in any event, no later than February 6, 2013, and that this was discoverable at the same time by a reasonable person with the abilities and in the circumstances of Ms. Rasul. This would satisfy the discoverability required by s. 5(1) in relation to a claim for damage to Ms. Rasul’s ureter.
[55] I am not satisfied that the evidence on this motion allows for a fair and just determination of when the Plaintiffs first discovered the kidney damage for which they now claim damages. There is insufficient evidence to assess: (i) the likelihood of kidney damage resulting from a ureter leak; (ii) whether the progression of a leaking ureter leads invariably to kidney damage – such that discovery of the ureter leak is effectively discovery of eventual kidney failure – or whether a ureter leak can be managed without necessarily resulting in kidney damage.
[56] This case is distinguishable from Odede v. Tartaro, 2021 ONSC 1845, the decision heavily relied on by the moving party. In Odede, the defendant surgeon performed a colonoscopy and polypectomy on the plaintiff who, after discharge from clinic, experienced a fever and pain. A CT scan revealed a perforation in the colon. A colectomy was performed two days after the colonoscopy, wherein 20 cm of colon was resected. Almost three years after this repair surgery, the plaintiff sued for damages for medical malpractice. The defendant surgeon brought a motion, under Rule 20, for dismissal on the basis that there was no genuine issue requiring trial regarding his limitation defence.
[57] In Odede, the plaintiff alleged that about 22 months after the colonoscopy and colectomy, a doctor in a foreign jurisdiction advised him that his ongoing symptoms were attributable to the procedures conducted by the defendant surgeon, without tendering any evidence on this point. The court concluded that even if this evidence had been brought, and found to be admissible, it still would not result in a finding that the action was limitation barred. At para. 47 the court explained: “That there may be later identified different damages does not ‘re-start’ the limitation period at that later time. Knowledge of the extent of damages is not relevant to the commencement of the limitation period.”
[58] The finding in Odede was based on a record in which the plaintiff adduced no evidence of “different damages”. At its highest, the plaintiff’s limitation defence rested on ongoing symptoms from the initial damage. Odede, like the decision in Liu v. Wong, 2015 ONSC 6595, aff’d 2016 ONCA 366 that it applied, involved summary judgment based both on a limitations defence and for want of delivery of an expert medical report.
[59] Here, the medical evidence gave rise to the genuine issue of whether Ms. Rasul sustained a “different damage” (the kidney damage) than the initial damage discovered (the ureter damage), or whether the kidney damage was an inevitable, expected progression of the ureter damage. Put differently, does the kidney damage form part of the “extent of damages” resulting from the injury to the ureter, and was it thereby discoverable more than two years before the action was started, or is the kidney damage new damage that only materialized within two years of the action being initiated?
[60] This genuine issue cannot be determined in a just and fair manner on the existing medical record through use of the fact-finding powers set out in Rules 20.04(2.1) and (2.2). I find that it is not in the interests of justice to use these powers in this instance due to the insufficiency of evidence. On this motion record, Ms. Rasul was advised of damage to her left kidney by Dr. Tsui on April 6, 2016, but there is insufficient evidence to determine whether Ms. Rasul first discovered damage to her left kidney before April 6, 2016. The medical notes authored by Dr. Tsui, dated July 14, 2014 (partial note only) and May 22, 2015, refer to “cortical thinning of the left kidney” and “swelling” and “moderate left sided pelvicaliectasis”. However, I find that these passing references, decontextualized with no evidence regarding the role of these medical findings in kidney disease, are insufficient to allow for a determination of when Ms. Rasul’s first knew that her left kidney was damaged. This insufficiency of evidence also prevents a fair and just determination of when a reasonable person with the abilities and in the circumstances of Ms. Rasul would have first known of left kidney damage.
[61] Further, this motion record does not contain evidence regarding the likelihood of kidney damage resulting from a ureter leak. Does the progression of a leaking ureter lead invariably to kidney damage – such that discovery of the ureter leak is effectively discovery of eventual kidney failure – or can a ureter leak be managed without necessarily resulting in kidney damage? This is, in my determination, a genuine issue requiring a trial.
[62] I conclude that there is a genuine issue requiring trial regarding whether the Plaintiffs knew of “injury, loss or damage” to Ms. Rasul’s left kidney before May 25, 2015, two years before the initiation of their action on May 25, 2017. I find that there is also a genuine issue requiring trial whether a reasonable person of Ms. Rasul’s ability and in her circumstances would have made this discovery. Although these findings are, alone, sufficient to conclude that this summary judgment motion is not appropriate for determination of the Defendant’s limitation defence, considering that that the four elements in s. 5(1) are conjunctive, I will nonetheless explain my determination on the remaining requirements of s. 5(1).
[63] I turn next to s. 5(1)(a)(ii) of the Limitations Act, which is satisfied in this case. The Plaintiffs allege that Ms. Rasul’s injury was caused by the September 2012 Procedure. This was known to the Plaintiffs, throughout. And s. 5(1)(a)(iii) is satisfied in this case. Dr. Whelan conducted the September 2012 Procedure, and this was known to the Plaintiffs throughout.
[64] On these findings, as early as October 9, 2012 and, in any event, no later than February 6, 2013, the Plaintiffs knew that the September 2012 Procedure had not achieved the result that they had expected, that, in their view, Dr. Whelan had done something wrong and that by reason of this Ms. Rasul had sustained damage to her left ureter. But even if I had found that discovery of the damage to the ureter is sufficient to give rise to discovery of damage to the left kidney at any point in time before May 25, 2015, this does not end the limitation analysis. There is still another consideration: when ought Ms. Rasul, or a reasonable person of her abilities and circumstances, to have known that a legal proceeding for kidney damage was an appropriate remedy?
[65] The fourth requirement for discoverability, as codified in s. 5 of the Limitations Act, is s. 5(1)(a)(iv), which I have duplicated for ease of reference:
5(1) A claim is discovered on the earlier of:
(a) The day on which the person with the claim first knew:
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to remedy it.
[66] The effect of s. 5(1)(a)(iv) is to delay the commencement of the limitation period until the initiation of a legal proceeding is “an appropriate means to remedy” the injury, loss or damage: Brown v. Baum, 2015 ONSC 849 (Brown SCJ), at para. 50. In Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, Justice Sharpe held, at para. 34, that “the word ‘appropriate’ must mean legally appropriate.” In 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 48, Justice Laskin explained that one purpose of s. 5(1)(a)(iv) is “to enable courts to function more efficiently by deterring needless litigation.”
[67] The Court of Appeal’s decision in Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 84 (Brown CA), is instructive. Here, the plaintiff suffered severe complications following a surgical procedure performed in March 2009. The surgeon continued to treat the patient with corrective surgeries. The plaintiff brought an action for a claim in damages on June 4, 2012, more than 38 months after the first surgery, but less than two years after the doctor’s last treatment of the plaintiff. The doctor brought a motion for summary judgment granting his limitation defence.
[68] The Court of Appeal affirmed the motion judge’s finding that although the plaintiff knew the facts required by the first three of the four conditions in s. 5(1)(a) of the Limitations Act, in that she knew by July 2009 that the operation had not gone well and believed that the surgeon had made an error or omission, it would be unreasonable and inappropriate to start the limitation period against the plaintiff while the efforts to obtain a medical remedy were continuing: Brown SCJ, at para. 53; Brown CA, at para. 17:
I agree with the motion judge that the fourth condition of discoverability under the Act is met at the point when the claimant not only knows the factual circumstances of the loss she has suffered, but also knows that “having regard to the nature of the injury, loss or damage”, an action is an appropriate remedy. Once she knows that, she has two years to initiate that action.
[69] In Brown, the Court of Appeal held that it would not have been appropriate for the patient to sue the doctor when the doctor might have been successful in correcting the complications and improving the patient’s outcome: Brown CA, at para. 18. As stated in 407 ETR, the “appropriate means” element of discoverability was designed to deter needless litigation. Would it not be contrary to this objective to require that an aggrieved person bring a claim even when the damages sustained are perceived to be modest, out of concern that the claim might be limitation barred should a more significant complication later develop? Applied to this motion, does the Limitations Act require, under either subjective or objective assessment, that the Plaintiffs determine that an action against Dr. Whelan is an “appropriate means to seek to remedy” their claim while waiting to assess whether the damage to the left ureter resulted in kidney damage? I find that this is a genuine issue requiring a trial due to the lack of sufficient medical and scientific evidence in the record to determine this issue.
[70] The Court of Appeal further found, in Brown CA, at para. 19, that the patient did not know that bringing an action against her doctor would be an appropriate means to remedy the injuries and damages until after the surgeon completed the last surgery. Applied to this motion, the inquiry is whether Ms. Rasul understood that bringing an action against Dr. Whelan was an appropriate means to remedy her damages before knowing whether her kidney function was impaired. Can a plaintiff choose not to sue a medical doctor for a perceived breach of standard of care by deciding not to pursue damages for the known injury, but then bring a claim for damages when a new, more troubling damage – whose emergence was uncertain – occurs?
[71] I do not have sufficient evidence on this motion to determine these issues fairly and justly. It is not in the interests of justice that I do so, as opposed to leaving this issue for determination at trial on a full record. I thereby find that the question of ‘when was it appropriate for the Plaintiffs to have brought a legal proceeding to claim damages for Ms. Rasul’s kidney damage’ is a genuine issue requiring a trial.
C. Conclusions
[72] The moving party, Dr. Whelan, had the burden to establish that his limitation defence raised no genuine issue requiring a trial: Crombie, at para. 33. As the Court of Appeal stated in Kaynes, at para. 56, “it is always a question of fact at what point a claimant had or ought to have had sufficient knowledge of each of the factors to commence the limitation period.” Under the guidance of Hryniak, at paras. 49 and 66, there will be no genuine issue requiring a trial “if the summary judgment process provides [the judge] with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure”. Where the evidence on the motion does not satisfy the judge that there is no genuine issue requiring a trial, the summary judgment cannot be granted: Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A); Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 OR (3d) 161 at para. 35.
[73] I am not satisfied that the evidence in the record on this motion allows for a just and fair adjudication of the Defendant’s limitation defence. I have concluded that summary judgment is not appropriate for determination of the Defendant’s limitation defence, which raises the following genuine issues requiring a trial:
(a) Did Ms. Rasul know of “injury, loss or damage” to her left kidney before May 25, 2015, two years before the initiation of their action on May 25, 2017?
(i) What is the medical and scientific connection between the ureter damage and the kidney damage?
(ii) Does the progression of a leaking ureter lead invariably to kidney damage – such that discovery of the ureter leak is effectively discovery of eventual kidney failure – or can a ureter leak can be managed without necessarily resulting in kidney damage?
(b) Would a reasonable person with the abilities and in the circumstances of Ms. Rasul have known of injury, loss or damage to her left kidney before May 25, 2015?
(c) When did Ms. Rasul first know that, having regard to the nature of her injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it?
(d) When would a reasonable person with the abilities and in the circumstances of Ms. Rasul have known that, having regard to the nature of Ms. Rasul’s injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it?
[74] I declined to use the discretionary fact-finding powers set out in Rule 20.04(2.1) and (2.2) to determine these genuine issues on motion: Hryniak, at para. 45. The court may use the expanded fact-finding powers available under these Rules to resolve these issues if that will leave no genuine issue requiring a trial but is not required to do so: Trotter v. Trotter, 2014 ONCA 814, 122 O.R. (3d) 625, at para. 75; 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 34; Silva v. Biasini, 2020 ONSC 8035, at para. 23. I conclude that this is not a situation where the use of the expanded fact-finding powers under Rule 20.04(2.1) will enable the court to fairly and justly resolve the limitation issue on summary motion.
[75] The Supreme Court explained in Hryniak, at para. 50, that when a process does not give a “judge confidence that she can find the necessary facts and apply the relevant legal principals so as to resolve the dispute”, the summary judgment process is not a fair and proportionate way to resolve the dispute. I find that this is the case.
[76] In Hryniak, at paras. 74-78, the Supreme Court set out steps that can be taken to build on a dismissed summary judgment motion to craft a trial procedure that is sensitive to the complexity and importance of the issue, the amount involved in the case and the effort expended on the failed motion. Where possible, the motion judge should remain seized as the trial judge. As I am no longer sitting on the Civil Team, I will not be seized of this action for trial. I direct, under Rule 50.13, that the parties attend at a Case Conference, by making arrangements with the Toronto Case Conference Coordinator, for the purposes set out in Rule 50.01 and to address the possibility for directions under Rule 20.05(2). In particular, the parties shall be prepared to speak to the establishment of a timetable for the orderly progression of this action to trial.
VI. DISPOSITION
[77] On the basis of these Reasons, I order as follows:
This motion by the Defendant, Dr. Patrick Whelan, for summary judgment is dismissed on the basis that the Defendant’s limitation defence raises genuine issues requiring a trial.
The Defendant’s limitation defence shall be left for determination by the trial judge.
The lawyers for the parties shall attend at Case Conference for the purpose of establishing a timetable for the orderly progression of this action to trial.
VII. COSTS
[78] The parties are encouraged to discuss and agree on the issue of costs of this motion. If the parties cannot agree on the issue of costs, any party seeking costs may, by December 21, 2022, deliver by email to my judicial assistant after service and filing on CaseLines, written costs submission of no more than 6 pages, plus a costs outline, as provided by Rule 57.01(6). Any party against whom costs is sought may, by January 18, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, a written responding cost submission of the same length. If no party delivers any written cost submissions by January 18, 2023, I will deem the issue of costs to have been settled.
A.A. Sanfilippo J.
Date: November 30, 2022
COURT FILE NO.: CV-17-575874
DATE: 20221130
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NAZHARHA RASUL and AMJAD RAHAMAN
Plaintiffs
– and –
DR. PATRICK WHELAN, DR. AVIDIS BOUDAKIAN and MARKHAM STOUFFVILLE HOSPITAL
Defendants
REASONS FOR DECISION
AA. Sanfilippo J.
Dated: November 30, 2022