Court File and Parties
Oshawa Court File No.: CV-20-1958 Date: 2024-09-03 Ontario Superior Court of Justice
Between: C.H.J. and C.J. Plaintiffs – and – DR. ALLAN WOJCIECH JACKIEWICZ, GREATER NIAGARA GENERAL HOSPITAL and NIAGARA HEALTH SYSTEM Defendants
Counsel: Daniel J. Balena, for the Plaintiffs Sean C. Petrou, for the Defendant, Dr. Allan Wojciech Jackiewicz Gordon Slemco, Counsel for the Defendants, Greater Niagara General Hospital and Niagara Health System
Heard: May 23, 2024
Reasons for Decision
DE SA J.:
Overview
[1] The defendant has brought a motion for summary judgment seeking to have the action dismissed for failing to commence the action within the requisite limitation period.
[2] The plaintiff claims that Dr. Jackiewicz was negligent in his care and treatment of her during a laparoscopic-assisted vaginal hysterectomy that he performed on January 14, 2010 (the “Surgery”). The plaintiff issued her claim against Dr. Jackiewicz on November 10, 2020, a total of 10 years, 9 months, and 27 days later.
[3] In her Statement of Claim, the plaintiff asserts that she only realized she was a “victim of malpractice” after a local news article published by The Standard on March 7, 2019 (the “2019 Standard Article”), was brought to her attention and revealed that Dr. Jackiewicz had failed to maintain the standard of practice while treating other patients.
[4] Dr. Jackiewicz takes the position that the plaintiff’s claim in this regard is untenable for a number of reasons which include the following:
(a) On January 16, 2010, Dr. Jackiewicz told the plaintiff that, during the surgery two days earlier, he had “dropped a laparoscopic needle… and was unable to locate it”; therefore, he converted the surgery from a laparoscopic (keyhole) procedure to a laparotomy. The plaintiff knew that Dr. Jackiewicz had performed a surgery for which she did not provide consent over 10 years before starting her claim.
(b) In the weeks and months following the Surgery, the plaintiff received treatment from two separate physicians for complications that arose during the Surgery. The plaintiff was told the complications she was experiencing and the subsequent treatment she received, were the result of a “bad outcome” provided by Dr. Jackiewicz who – at that time – the plaintiff blamed for her condition.
(c) The plaintiff admitted during cross-examination that she read a similar news article regarding Dr. Jackiewicz’s “failure to maintain the standard of practice” with respect to other patients, also published by The Standard on November 23, 2010 (the “2010 Standard Article”), only 10 months after Dr. Jackiewicz performed the Surgery.
(d) She discussed this article and the “bungled” surgery with her family physician in 2010, 2012, and 2013.
(e) The 2019 Standard Article contains “no new facts regarding the care that Dr. Jackiewicz provided” to her – in other words, the plaintiff did not learn any new material information on which to base her claim against Dr. Jackiewicz from the 2019 Standard Article.
[5] Accordingly, Dr. Jackiewicz argues that the plaintiffs’ claim is clearly statute-barred pursuant to the Limitations Act, 2002, and must be dismissed.
[6] I agree with the defendant that the plaintiffs’ claim is statute-barred. Accordingly, I grant the defendant’s motion and dismiss the plaintiffs’ action.
[7] The reasons for my decision are outlined below.
Summary of Facts
The Action
[8] The action was commenced by way of Statement of Claim (the “Claim”) issued on November 10, 2020. The plaintiff alleges that Dr. Jackiewicz breached the standard of care in his performance of the Surgery, causing the plaintiff to require subsequent treatments and surgeries between January 26 and April 28, 2010.
[9] Specifically, the plaintiff alleges, among other things, the following:
(a) she “subsequently discovered” the Surgery, which was a laparoscopic procedure, was converted to a laparotomy because a laparoscopic needle was lost in the abdomen;
(b) Dr. Jackiewicz failed to adequately advise the plaintiff of the risks associated with the said medical procedure, and failed to obtain the plaintiff’s informed consent to the surgery; and
(c) Dr. Jackiewicz was negligent in performing the Surgery and fell below the medical standard of care to which the plaintiff was entitled.
The Surgery
[10] On January 14, 2010, the plaintiff was admitted to undergo an elective laparoscopic vaginal hysterectomy. During the Surgery, the procedure was converted to a laparotomy. The plaintiff was discharged from the Hospital on January 17, 2010, pursuant to the orders of Dr. Jackiewicz.
[11] Dr. Jackiewicz saw the plaintiff two days after the Surgery on January 16, 2010. Dr. Jackiewicz told the plaintiff he “dropped the laparoscopic needle and was unable to locate it” and, as a result, converted the laparoscopy into a laparotomy to locate the needle.
[12] At this time, the plaintiff understood she had received an “open surgery” or “laparotomy” instead of a “keyhole surgery” or “laparoscopy.” This was a surgery that she was not expecting to have and did not consent to. When informed about the laparotomy, the plaintiff was surprised, shocked, and concerned.
Complications from the Surgery
[13] Dr. Jackiewicz saw the plaintiff again on January 26, 2010, and diagnosed her with a pelvic abscess and small bowel obstruction. The plaintiff understood – at that time – these were complications sustained as a result of the Surgery performed by Dr. Jackiewicz. Dr. Jackiewicz transitioned the plaintiff’s follow-up care to two other non-party physicians at the Hospital: Dr. Muir and Dr. Brown.
[14] Dr. Brown and Dr. Muir followed the plaintiff regularly between January 26 and April 28, 2010, providing her follow-up treatment, care, and repair surgeries for the complications allegedly caused by Dr. Jackiewicz during his performance of the Surgery. During this time, Dr. Muir and Dr. Brown advised the plaintiff that she suffered, among other things, the following complications as a result of the Surgery performed by Dr. Jackiewicz:
(a) a rectovaginal fistula (a connection between the anus and vagina) allowing stool to pass from the anus into the vagina; and
(b) a urine leak caused by a damaged ureter (the tube that connects the kidney to the bladder) on the plaintiff’s right side requiring a catheter and nephrostomy tube (a tube inserted into the plaintiff’s kidney through her side or back that drains urine into a collection bag).
[15] The plaintiff understood – at the time – that these complications were caused by Dr. Jackiewicz during his performance of the Surgery. The plaintiff was concerned about her circumstances and believed these complications were the result of Dr. Jackiewicz’s conduct. She consented to a repair surgery performed by Dr. Brown and Dr. Muir together on March 23, 2010. She was discharged from the Hospital on March 30, 2010, and thereafter began to improve.
The 2010 Article
[16] Following her discharge from the Hospital, the plaintiff continued to see her non-party family physician, Dr. Kenneth Taylor, whom she regularly spoke with about the complications from the Surgery.
[17] On December 20, 2010, shortly before Christmas, the plaintiff saw Dr. Taylor and explained to him that she had read an article in the local newspaper, The Standard. The plaintiff understood from reading the 2010 Standard Article that there had been a finding that Dr. Jackiewicz had “failed to maintain the standard of practice.” In cross-examination, the plaintiff admitted to being upset by this at the time and advising Dr. Taylor in the course of their discussion. The cross-examination proceeded as follows:
Q. And then it also goes on here to say that: “Recently, the surgeon who had done the surgery on her was in the Niagara Falls paper, whose licensing has been somewhat restricted.” You’d agree that you had raised that with Dr. Taylor back in December of 2010?” A. Yes.
Q. And so you told Dr. Taylor at that time that you had seen something in the paper about Dr. Jackiewicz? A. Yes.
Q. And you knew at that time that Dr. Jackiewicz was, of course, in the news? A. Yes.
Q. And that there was some investigation into his practice? A. Yes.
Q. And at that time, in December of 2010, you knew that Dr. Jackiewicz’s licensing was being investigated, right? A. Yes.
Q. And that there were some questions into his care? A. Yes.
Q. And certainly at that time, there had actually been a finding about Dr. Jackiewicz’s care, right? A. Yes.
Q. And you knew at that time that somebody had made a finding that he had failed to maintain the standard of practice? A. Yes.
Q. Okay. And you knew at that time that there had been a finding by the College under which Dr. Jackiewicz is regulated, right? A. Yes.
Q. And, of course, you were upset when you learned that back in December of 2010? A. Yes.
Q. And you, understandably, raised that with Dr. Taylor, right? A. Yes.
Q. All right. Now, do you remember the article that you saw in the paper? A. Yes.
Q. Do you remember who published it? A. “The Standard”.
[18] In the course of this discussion, Dr. Taylor agreed with the plaintiff that, “she was unfortunately given a bad surgical result”.
Ongoing Discussions with Dr. Taylor in 2012 and 2013 regarding the Surgery
[19] Even after 2010, the plaintiff continued to see Dr. Taylor and reported her concerns about the Surgery.
[20] On March 1, 2012, the plaintiff told Dr. Taylor she “remained stressed” about the “surgical blunder” or the “mistake” that Dr. Jackiewicz had made during the Surgery.
[21] Later that year, on October 4, 2012, the plaintiff again discussed being unhappy as a result of the “surgical errors” she experienced during the Surgery performed by Dr. Jackiewicz.
[22] The plaintiff continued to complain of Dr. Jackiewicz’s “surgical blunder” and “surgical errors” causing Dr. Taylor to note in his chart, again, on March 1, 2013, that the plaintiff “has questions still about her failed surgical intervention.”
[23] By March 1, 2013, the plaintiff even became aware that Dr. Jackiewicz had been removed from his leadership position at the Hospital as the Chief of Obstetrics and disciplined by the College of Physicians and Surgeons of Ontario with a public reprimand and license restrictions.
The 2019 Article
[24] In March 2019, another article from The Standard was brought to the plaintiff’s attention. The heading to that article reads “Niagara doctor ‘incompetent’ College says ... Dr. Allan Jackiewicz agrees to give up his licence and not appeal decision”. The 2019 Standard Article referenced the following:
(a) Dr. Jackiewicz had an extensive history with The College of Physicians and Surgeons (“The College”);
(b) Dr. Jackiewicz had a finding of professional misconduct in 2010 which concluded that Dr. Jackiewicz had failed to maintain the standard of practice for obstetrics;
(c) In 2011, Dr. Jackiewicz received four more verbal cautions regarding four complaints from patients regarding the care that they had received from him;
(d) In November 2013, The College received information that Dr. Jackiewicz had voluntarily ceased booking surgeries following a hospital report on his surgical practice;
(e) In 2014, Dr. Polsky was brought in as a mentor to supervise Dr. Jackiewicz’s gynecological surgical procedures;
(f) In 2014, Dr. Polsky advised that Dr. Jackiewicz’s techniques were outdated and dangerous; and
(g) In January 2015, Dr. Jackiewicz notified The College that he would not be renewing his surgical privileges.
[25] Following a meeting with counsel, the plaintiff decided she would commence a claim as against Dr. Jackiewicz, Niagara General Hospital and Niagara Health System.
[26] In her affidavit, the plaintiff claims that she only “discovered” she was a victim of malpractice after reading the 2019 article in the Standard. The plaintiff maintains that prior to this, she assumed that the complications giving rise to the second surgical procedure were normal and expected surgical risks and were not the result of malpractice on the part of Dr. Jackiewicz. In her cross-examination, however, the plaintiff acknowledged that she was aware she had a claim prior to 2019:
Q. And so after this article [the 2019 Standard Article] – you say after this article is given to you, you believed that you may have been a victim of malpractice. A. Yes.
Q. But certainly you might have believed that earlier than this, right? A. Yes.
Q. And you might have believed that back in 2013 when you’re reporting to Dr. Taylor? You’re trying to find this information, right? A. Yes.
Q. And you might have believed that when you saw the article from “The Standard” that we talked about earlier, right? A. Yes.
Q. Back in 2010? A. Yes.
[27] In cross-examination, the plaintiff also agreed that the 2019 Standard Article contained “no new facts regarding the care that Dr. Jackiewicz provided” to her:
Q. Okay, great. So you’d agree that the article [2019 Standard Article] talks about Dr. Jackiewicz’s surgical practice generally -- A. Yes.
Q. -- right? A. Yes.
Q. And you’d also agree the article does not reference the care that Dr. Jackiewicz provided to you? A. Correct.
Q. And the article does not reference the specific surgery Dr. Jackiewicz performed on you? A. Correct.
Q. And really, the article does not contain any new information regarding the care that Dr. Jackiewicz provided you? A. Correct.
Q. And it doesn’t provide any new facts regarding your case? A. No.
Commencement of the Claim in 2020
[28] The plaintiff first met with her current counsel, Daniel J. Balena, to investigate her potential claim against Dr. Jackiewicz on April 12, 2019. She did not meet with or retain any other lawyers prior to that.
[29] She did not file a complaint against Dr. Jackiewicz with the College of Physicians and Surgeons of Ontario despite discussing her concerns about Dr. Jackiewicz’s care with Dr. Taylor from 2010-2013.
[30] Following her initial meeting with Mr. Balena, the plaintiff waited a further 18 months and 30 days before issuing her Claim on November 10, 2020. When the plaintiff finally issued her Claim, she did not plead discoverability, nor did she plead it in Reply contrary to the Rules of Civil Procedure.
Analysis
Summary Judgment – General Principles
[31] In accordance with Rule 20, a defendant may move for summary judgment to have a claim dismissed. If the court is satisfied that there is no genuine issue requiring a trial, the Court “shall” grant summary judgment.
[32] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada confirmed that the purpose of Rule 20 is to (1) eliminate claims that have no chance of success at trial, and (2) to provide judges with fact-finding powers to be used on a summary judgment motion.
[33] The 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; see also Collins v. Cortez, 2014 ONCA 685.
[34] The moving party has the onus of proving there is no genuine issue requiring a trial. If that is shown, the onus shifts to the responding party to adduce evidence of specific facts showing there is a genuine issue requiring a trial: Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195.
[35] The Court must 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 aff’d 2012 ONCA 335. The responding party cannot rest on the pleadings or wait for more favourable facts to emerge at trial. Each side must “put its best foot forward” and “lead trump” or “risk losing all”.
Limitation Period and Summary Judgment
[36] Pursuant to section 4 of the Limitations Act, 2002, a proceeding shall not be commenced in respect of a claim two years after the claim was discovered. “Discovered” has the following meaning under section 5(1) of the Limitations Act, 2002:
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] Pursuant to s. 5(2) of the Limitations Act, 2002, the person with the claim “ shall be presumed ” to have discovered her claim “ on the day the act or omission on which the claim is based took place, unless the contrary is proved .”
[38] A plaintiff need not know “ with certainty that … injuries were caused by the fault of the defendant” for a limitation period to start to run. Rather, 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: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, at para. 61; Peixeiro v. Haberman, [1997] 3 SCR 549, at para. 18 (SCC).
[39] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada held that the standard to be applied in determining whether a plaintiff has the requisite degree of knowledge to discover a claim under the Limitations Act, 2002, thereby triggering the two- year limitation period, is whether there is a “plausible inference” of liability:
…[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. It follows from this standard that a plaintiff does not need knowledge of all the constituent elements of a claim to discover that claim.
[40] A plausible inference of liability ensures “the standard does not rise so high as to require certainty of liability.” Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 46 citing Kowal v. Shyiak, 2012 ONCA 512. 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.
[41] In deciding when a person in the plaintiff’s circumstances ought to have discovered the elements of her claim, it is relevant to consider “what reasonable steps” she ought to have taken: Fennell v. Deol, 2016 ONCA 249, at para. 24. “Suspicion” may “trigger” the exercise of reasonable diligence: Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 44 referencing Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, at para. 42.
[42] A plaintiff cannot sit back, issue a claim beyond the two-year period, and then rely on the discoverability doctrine to save their claim: Bendah v. Dr. Farine and Dr. Fleming, 2024 ONSC 624, at para. 260 (SCJ) citing Longo v. MacLaren Art Centre, 2014 ONCA 526. The Court of Appeal has consistently held 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)”: Fennell v. Deol, 2016 ONCA 249, at para. 23; Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, at para. 42.
Application to the Facts of the Case
[43] The plaintiff argues that it is well known that surgical procedures come with risks during a surgery, and this does not necessarily lead to a conclusion that the treating doctor was negligent. The fact that Dr. Jackiewicz dropped a laparoscopic needle or converted the surgery to a laparotomy was not clear evidence of negligence.
[44] Dr. Jackiewicz has yet to be examined for discovery. The plaintiff maintains that there are genuine issues requiring a trial. Specifically, the trial itself must determine:
(a) Conduct exhibited by Dr. Jackiewicz and whether that conduct constituted negligence;
(b) Did the conduct exhibited by Dr. Jackiewicz fall below the Standard of Care?
[45] The plaintiff’s position ignores the fact that the question raised by the defendant on the motion is not whether there was negligence, but rather, whether the plaintiff knew or ought to have known they had a potential claim for negligence and failed to act on that claim with reasonable diligence.
[46] In this case, the plaintiff knew all of the material facts necessary to discover her claim against Dr. Jackiewicz by December 20, 2010:
(a) By January 16, 2010 – two days after the Surgery, the plaintiff learned she had received a laparotomy; a procedure she had not consented to, and Dr. Jackiewicz told her he “dropped the laparoscopic needle and was unable to locate it.”
(b) By January 26, 2010 – Dr. Jackiewicz diagnosed the plaintiff with a pelvic abscess and small bowel obstruction that she understood – at that time – were complications sustained as a result of the Surgery performed by Dr. Jackiewicz.
(c) By March 30, 2010 – the plaintiff was discharged from the Hospital after receiving all of her follow-up care and treatment and repair surgeries from Dr. Brown and Dr. Muir, both of whom advised the plaintiff all of her post-Surgery complications were caused by Dr. Jackiewicz.
(d) The plaintiff understood those complications were “not good” and a “bad outcome”. She blamed and faulted Dr. Jackiewicz for these complications.
(e) By December 20, 2010 – the plaintiff reported to her family physician that she had read the 2010 Standard Article about Dr. Jackiewicz being reprimanded for “failing to maintain the standard of practice” and the plaintiff was told, “she was unfortunately given a bad surgical result.”
[47] Further, the plaintiff knew of the following further material facts in 2012 that also support a “plausible inference” of liability, thereby triggering the two-year limitation period and causing the Claim to be statute-barred having regard to the following facts:
(a) March 1, 2012 – the plaintiff reported to her family physician that she “remained stressed” about her “surgical blunder” or the “mistake” that Dr. Jackiewicz had made during the Surgery.
(b) October 4, 2012 – the plaintiff remained unhappy as a result of the “surgical errors” she experienced as a result of the Surgery performed by Dr. Jackiewicz and discussed those “surgical errors” with her family physician.
(c) March 1, 2013 – the plaintiff continued to complain of Dr. Jackiewicz’s “surgical blunder” and “surgical errors” causing Dr. Taylor to note, again, on March 1, 2023, in his chart: “She [the plaintiff] has questions still about her failed surgical intervention.”
[48] I agree with the defendant that the facts known to the plaintiff in 2010 and 2012 were sufficient to give rise to a “plausible inference” of liability and trigger the two-year limitation period: Dale v. Frank, 2017 ONCA 32, at para. 7 aff’d 2016 ONSC 3211 relying on Lawless v. Anderson, 2011 ONCA 102, Soper (Guardian of) v. Southcott, and McSween v. Louis, at para. 51 (ON CA). As explained in Grant Thornton LLP v. New Brunswick, at para. 48:
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.
[49] Similarly, as stated in Dale v. Frank, 2017 ONCA 32, at para. 7:
In our view, the motion judge was correct to hold that a plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered. To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant's liability to her. This is too high a bar for a plaintiff to have to meet.
[50] The plaintiff maintains that it was only when she reviewed the Standard article from March 7, 2019, wherein Dr. Jackiewicz is noted as agreeing to give up his licence for various infractions that she was actually aware of the need to seek legal advice and commence a claim.
[51] The plaintiff’s argument is similar to arguments advanced in Buys v. Frank, 2016 ONSC 3211, where various plaintiffs attempted to rely on a press release and media event about allegations into an obstetrician-gynecologist’s poor technical skills and care and treatment of other patients. There, the court dismissed the various plaintiffs’ claims as statute-barred finding, inter alia, that none of the facts in the applicable press release related to the care provided to them: “Accordingly, the press release did not provide any new material facts upon which her claim is based.”
[52] As the Court of Appeal noted, “the discovery of a new fact, unrelated to the specific medical procedure provided by a specific doctor to a specific patient, does not restart the limitation period”: Dale v. Frank, 2017 ONCA 32, at para. 13.
[53] There is also no suggestion in the plaintiff’s statement of claim, reply, or cross-examination transcript, that the plaintiff required an expert report to institute her claim, nor that she ever, in fact, obtained one before commencing her claim.
[54] The plaintiff also did not act with reasonable diligence in investigating her claim. She took no steps to investigate her claim against Dr. Jackiewicz between 2010 and 2019, despite knowing the material facts outlined above.
[55] For the foregoing reasons, summary judgment is granted, and the action is dismissed on the basis that it is statute-barred pursuant to the Limitations Act, 2002.
[56] Costs are ordered in favour of the defendant in the amount of $20,000 as agreed to by the parties.
Justice C.F. de Sa
Released: September 3, 2024