COURT FILE NO.: CV-6943-17 DATE: 2023-04-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Normand Vouriot, Cecile Vouriot and Suzanne Dufresne-Vouriot Responding Parties/Plaintiffs – and – Adam Lenny Moving Party/Defendant

Counsel: Derek V. Abreu, for the Responding Parties/Plaintiffs Laura B. Stewart / Francois Guay-Racine, for the Moving Party/Defendant

HEARD via Zoom: February 17, 2023

DECISION ON MOTION FOR SUMMARY JUDGMENT

BOUCHER J.

[1] Normand Vouriot (the “plaintiff”) brought a medical negligence claim against the defendant. Some of the plaintiff’s family members also brought derivative claims. The defendant has moved for summary judgment, alleging the plaintiff started the claim outside the limitation period.

[2] For the reasons that follow, the motion is granted, and the claims of the plaintiffs are dismissed.

Issues

[3] The dispute between the parties on this motion can be simply stated: did the plaintiff require an expert medical opinion before he could actually or constructively “discover” his claim against the defendant?

Factual Overview

Medical issues

[4] On December 03, 2012 the plaintiff moved a heavy television in his residence. He used his left knee to support the television and he slid the television down his leg to rest it on the floor. This action injured his left leg, and the resulting pain prevented the plaintiff from leaving his couch for seven days.

[5] On December 10, 2012 the plaintiff called an ambulance, and he was brought to the emergency department. The defendant assessed and examined the plaintiff and ordered an x-ray. He discharged the plaintiff with a treatment plan, including instructions regarding follow-up. This is the only involvement the defendant had with the plaintiff.

[6] The plaintiff returned to the emergency department on January 11, 2013, presenting with the same complaints. He was assessed by an emergency physician, but no diagnosis was made.

[7] On February 16, 2013 the plaintiff returned to the emergency department, bringing with him a sample of pus that had exudated from his left leg. His evidence is that he had been confined to his couch due to the pain from December 2012 until this third emergency room visit.

[8] The emergency physician examined him and made a diagnosis of septic arthritis. The plaintiff was admitted to hospital on February 17, 2013 and given intravenous antibiotics (which he remained on for a month). On February 18, 2013 he was seen by an orthopedic surgeon, Dr. Allison, who concluded that the cartilage and soft tissue within his knee had been destroyed – likely the result of a long-standing soft tissue infection and or osteomyelitis. He advised the plaintiff of this and told him that surgery could accordingly be undertaken to control the source of the infection only.

[9] The plaintiff remained in hospital until the damaged and infected tissue on his knee was cleaned and removed, and he was released on March 07, 2013.

[10] On October 16, 2013, Dr. Allison reported that the plaintiff’s “bad infection” involving his lower left leg continued and that he suffered from severe posttraumatic arthritis. In his opinion, the plaintiff was a bad candidate for a knee replacement and predicted a “high rate of failure” for the surgery. He recommended amputation above the left knee. The plaintiff was “very hesitant” about this, and he accordingly referred him to another orthopedic surgeon for a second opinion.

[11] Dr. Cisa saw the plaintiff the next day. He noted the plaintiff was unable to bear any weight on his left leg. He told the plaintiff he could not recommend knee replacement because of his current condition. He also told him it was possible the infection could return after a knee replacement. He recommended he wait approximately two years after the infection cleared to reassess the knee replacement option. He asked the plaintiff to let them know in the coming weeks if he decided to proceed with the amputation.

[12] The plaintiff received a total replacement of his left knee in early 2015. The infection returned and he had his left leg amputated above the knee on April 03, 2015.

Procedural issues

[13] In January 2016 the plaintiff retained counsel to advise him if he had a claim in medical negligence related to the treatment of his knee. In February 2016 counsel for the plaintiff wrote to the hospital to obtain the plaintiff’s records dating back to December, 2012.

[14] In October 2016 the plaintiff signed an expanded retainer agreement with his counsel. That same month his counsel launched complaints with the College of Physicians and Surgeons of Ontario (CPSO) against three doctors, including Dr. Allison, though not including the defendant. The CPSO dismissed the complaints as unfounded.

[15] On March 30, 2017 the plaintiff issued a notice of action against the hospital and various physicians, known and unknown, though not including the defendant. A statement of claim in that action was issued on April 27, 2017 and the action was discontinued in February, 2019.

[16] On April 07, 2017 an expert provided plaintiff’s counsel with an opinion that it was more likely than not that the amputation could have been avoided if the defendant had identified and treated the infection. The statement of claim was issued against the defendant on August 24, 2017.

The Law

[17] Section 4 of the Limitations Act, 2002 requires proceedings to be started within two years of discovery of a claim. Subsection 5(1) defines actual and constructive discovery of a claim 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).

[18] Subsection 5(2) provides a rebuttable presumption that the claim is discovered on the day the act or omission referred to in paragraph 5(1)(a) took place.

[19] The Supreme Court of Canada set out the following principles regarding the test for discoverability in Grant Thornton LLP v. New Brunswick, 2021 SCC 31:

a. 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 (para. 42);

b. A plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence (para. 44);

c. The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation (para. 46);

d. A plaintiff does not need to know 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 (para. 46); and

e. It follows that in a claim alleging negligence, a plaintiff does not need knowledge that the defendant owed it a duty of care or that the defendant’s act or omission breached the applicable standard of care. Finding otherwise could have the unintended consequence of indefinitely postponing the limitation period. After all, knowledge that the defendant breached the standard of care is often only discernable through the document discovery process or the exchange of expert reports, both of which typically occur after the plaintiff has commenced a claim (para. 48).

[20] It is enough that a plaintiff knows there is a possible claim against a group of people, without needing to know which person is specifically responsible: Rumsam v. Pakes, 2019 ONCA 748 at para. 24.

[21] In some cases, a medical opinion is required to acquire the material facts upon which a claim can be based. Nonetheless, plaintiffs cannot rest on their rights and must exercise due diligence in gathering the material facts, including commissioning expert reports: Longo v. MacLaren Art Centre, 2014 ONCA 526 at para. 42; Soper v. Southcott, [1998] O.J. No. 2799 (ON CA) at para. 21.

[22] Determining when there are sufficient material facts of a potential claim cannot be combined or confused with discovering the merits of the potential claim: Andrews v. Pattison, 2022 ONCA 267 at para. 8. If a plaintiff has actual knowledge of a claim, the constructive knowledge provisions of paragraph 5(1)(b) of the Limitations Act, 2002 have no application: Andrews at para. 10.

Positions of the Parties

The defendant

[23] The defendant argues there are several periods when the plaintiff had actual knowledge of material facts from which a plausible inference of the defendant’s liability could be drawn. In each case, it is submitted, the plaintiff missed the limitation period to start the claim.

[24] The first date is when the plaintiff learned that his left knee was infected. This diagnosis was made by the emergency room doctor in the February 16, 2013 visit. The plaintiff was also told by Dr. Allison on February 18, 2013 that the infection had been longstanding and had resulted in permanent damage. In his discovery evidence the plaintiff admitted he knew in February 2013 that the defendant had missed the diagnosis.

[25] The defendant also submits that by October, 2013, the plaintiff was told by Dr. Allison that amputation above the left knee was the best option. When he was referred to Dr. Cisa for a second opinion, the plaintiff was told that the infection could return after a whole knee replacement. Dr. Cisa said he would not reconsider this surgery until two years after the infection was resolved.

[26] At the very latest, the plaintiff had actual knowledge of the material facts when he experienced the amputation. In the alternative, the defendant argues the plaintiff ought to have discovered the claim by this time.

[27] Finally, the April 07, 2017 expert opinion obtained by the plaintiff goes to the merits of the claim and does not disclose any new material facts. It accordingly has no bearing on the discoverability of the claim.

The plaintiff

[28] The plaintiff argues that, despite the reasonable steps he took throughout the two prior years, only the expert opinion of April 07, 2017 provided him with the necessary medical knowledge that his loss was contributed to by the defendant. He submits that throughout the period of his care, no doctors told him the defendant should have diagnosed the infection in December 2012. In his affidavit delivered in response to this motion, the plaintiff’s evidence is that when he testified at discovery about the defendant, he meant it was his own personal belief, not one informed by medical opinions. He further submits that his personal belief amounted to suspicion or speculation, which was not enough for him to reasonably know the claim could exist.

[29] In terms of constructive knowledge, paragraph 5(1)(b) of the Limitations Act, 2002 requires the court to assess the reasonable person taking into account the plaintiff’s abilities and his circumstances. In that regard, he notes that at the time he was 58 years old, had worked as a welder but had been unemployed since 2001. Due to emotional and mental issues he has been on ODSP since 2011.

[30] Finally, the plaintiff argues the court’s analysis of the limitations issue must be large and liberally construed in favour of the plaintiff.

Analysis

[31] The parties agree summary judgment is an appropriate forum to determine whether the claim was brought outside the limitation period. They did not make submissions on the law of summary judgment and accordingly I need not address it any further.

[32] I am mindful this is a fact-based inquiry. For reasons I will explain, I find the plaintiff had by mid-February 2013 and no later than October 2013 actual knowledge of the material facts upon which a plausible inference of liability on the defendant’s part could be drawn. I also find the expert opinion of April 07, 2017, did not provide the plaintiff with any new material facts. It rather provided evidence of the merits of the claim against the defendant.

[33] The plaintiff had been, due to the pain in his left leg, couch-bound the week prior to his attendance at the emergency room in December 2012. His evidence which I accept is that his pain was so severe he needed paramedics to transport him to the hospital.

[34] The pain did not subside after this visit, nor after the visit in January, 2013. There can be no doubt the plaintiff suffered greatly from the pain caused by this serious infection. He remained on his couch due to the pain until he was admitted to hospital in mid-February, 2013. The emergency room doctor that admitted him told him he had an infection in his knee. He also saw Dr. Allison, who told him the infection had been long-standing and had permanently destroyed the cartilage and soft tissue in his knee. The plaintiff was put on intravenous antibiotics, had the dead and infected tissue cleaned and removed and remained on intravenous antibiotics after he was released from the hospital in early March 2013.

[35] At his discovery the following questions were put to the plaintiff, and he provided the following answers:

1013 Q. So, in February, 2013 when the doctors told you that you may actually have an infection in your knee, how did you react? A. Surprised. Stunned.

1014 Q. So at that time, did you believe that Dr. Lenny missed a diagnosis? A. Yes, of course.

1015. Q. Yeah. So it should have been picked up before? A. Because to myself is how I got that way is – was to say well, you guys mislead yourselves because of not noticing what my occurrence really is.

[36] In his affidavit delivered for this motion the plaintiff explained that he meant it was his personal belief that the defendant missed a diagnosis. He had not at that time been told by a doctor that the defendant should have caught the infection.

[37] I reject the argument that the plaintiff’s belief alone at this point was not enough to support a plausible inference of liability. The cases on this point provided by the plaintiff are distinguished on their facts: determining whether medical evidence provides the required material facts is a fact-specific exercise.

[38] The plaintiff suffered in great pain for at least three months before the infection diagnosis was finally made. It was only after that diagnosis that the plaintiff received appropriate treatment, including intravenous antibiotics and the removal of dead and infected tissue. Within days of the diagnosis, the plaintiff was told the infection had been longstanding and had in fact destroyed the cartilage and soft tissue in his knee. He was also told that surgery would only help with source control of the infection.

[39] The April 07, 2017 opinion did not offer any new material facts; rather, it simply provided opinion evidence which suggested it was more probable than not that the plaintiff could have avoided amputation if the defendant had diagnosed the infection. The plaintiff was aware in February 2013 that there had been permanent damage to his knee due to the infection. He had clearly been suffering for many months. It is therefore not surprising that his answer in discovery was “yes, of course” when asked whether he believed the defendant had missed the diagnosis. The plaintiff did not need to know the exact extent or type of harm he suffered: Grant Thornton LLP, at para. 46. The actual knowledge he possessed was much more than mere speculation: it was sufficient to support a plausible inference of liability.

[40] In any event, the plaintiff was clearly made aware in October 2013 that amputation was a possible outcome. Dr. Allison’s opinion was that amputation was the only option. Dr. Cisa refused to perform the knee replacement surgery the plaintiff sought. He was concerned the infection would return after the surgery. He told the plaintiff he would only reconsider this surgery after his knee had two years to heal from the infection. At the very latest, therefore, the plaintiff was aware in October 2013 that the infection had been severe enough to make amputation above the left knee a likely outcome.

[41] Having found the plaintiff had actual knowledge, I need not engage in the constructive knowledge analysis: Andrews, para. 10. That said, I also find the plaintiff clearly had constructive knowledge of the material facts required to form a plausible inference of liability. If I set aside the plaintiff’s evidence that he believed the defendant missed the diagnosis, the remaining evidence I have already reviewed, including: the diagnosis of the longstanding infection and the permanent damage it caused, the likelihood of amputation and the remarkable and protracted pain described by the plaintiff, in the context of his personal circumstances, is more than sufficient to ground the finding of constructive knowledge. In my view, the plaintiff ought to have discovered these material facts through the exercise of due diligence in these circumstances: Grant Thornton LLP, para. 44.

Conclusion

[42] For these reasons, I find the plaintiff had actual knowledge of the material facts upon which a plausible inference of liability on the defendant’s part could have been drawn as early as mid-February 2013 and no later than mid-October 2013. His claim and the derivative claims of his family members was started August 24, 2017, well beyond the two-year limitation period. The Limitations Act, 2002 accordingly prevents these claims from proceeding. There being no genuine issue requiring a trial, the motion is granted, and the claims are dismissed.

[43] The parties advise they agreed on costs for this motion. If they are unable to agree on costs for the action, the defendant may within 30 days of this decision deliver submissions on costs of no more than 3 pages, together with a bill of costs. The plaintiff will have 15 days thereafter to deliver submissions on costs together with a bill of costs. There will be no reply.

The Honourable Mr. Justice P.J. Boucher

Released: April 14, 2023