Court File Numbers

CV-21-00673359-0000
CV-21-00666985-0000
CV-21-00660940-0000

Date: 2025-07-15

Superior Court of Justice – Ontario

RE: William Allyn Wiebe, Plaintiff
AND: Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson International, Johnson & Johnson, Ethicon LLC and Ethicon Inc., Defendants

AND RE: Sergio Fappiano, Plaintiff
AND: Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson International, Johnson & Johnson, Ethicon LLC and Ethicon Inc., Defendants

AND RE: Robert Allan Pelletier, Plaintiff
AND: Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson International, Johnson & Johnson, Ethicon LLC and Ethicon Inc., Defendants

Before: Edward Akazaki

Counsel:
Russell Howe, for the Plaintiffs
Robin D. Linley and Leah Kelley, for the Defendants

Heard: 2025-05-29

Reasons for Judgment

Overview

[1] This motion for summary judgment brought these three plaintiffs together, because of three things they have in common. Years ago, they had each undergone hernia repair surgery requiring the implantation of a polypropylene mesh manufactured by Johnson & Johnson. They had each suffered complications necessitating further surgery to repair the site or remove the mesh. And they had each sued the manufacturer years after the expiry of the basic two-year limitation period, after somehow finding out that the Preszler law firm pursues compensation for clients from manufacturers of this type of mesh. The manufacturer seeks an order dismissing the actions as statute barred.

[2] Nothing about the health of the three individuals ever affected their intellectual ability to make inquiries after the subsequent surgery resolved the problems resulting from the implanted mesh. Apart from no one telling them anything about a product defect, there was no evidence explaining their delay in pursuing compensation from anyone for their medical ordeals. In fact, apart from their lawyers’ belief in a defect, there was no evidence before me of any defect that the plaintiffs could have discovered.

[3] In the case of Mr. Fappiano and Mr. Wiebe, the trigger for retaining the lawyers to bring the suit was advertising or word of mouth about the Preszler firm’s product liability suits against mesh manufacturers. Mr. Pelletier did not state in his affidavit why he contacted the firm when he did. The next step in each’s decision to sue was to order the surgery records to ascertain whether the mesh was on a list maintained by the law firm. Odette Daubermann, the lawyer with institutional knowledge of “Preszler’s medical device litigation program since its earliest days,” deposed in her affidavit:

We only litigate cases involving products that are on a list of products that we have compiled that we believe are defective and thus the litigation would have merit and a reasonable chance of success.

[4] Perhaps it could have been useful to know what “earliest days” meant. Ms. Daubermann could also have stated when information about the defects in the Johnson & Johnson meshes implanted in the plaintiffs entered the public domain. Without such evidence, the court must draw the obvious inference that if each of the plaintiffs consulted the law firm shortly after their last surgeries, they would have sued then and not many years later. In fact, in Mr. Pelletier’s case he did contact the firm well within the prescription period, about fifteen months after his repair surgery. However, the firm did not file his statement of claim until after the third anniversary.

[5] Finding out that a product is on a law firm’s list, whatever one makes of that fact, cannot revive a limitation period that has expired because of the injured party’s failure to take any steps to find out what happened, how the defendant’s product could have caused the injury, and whether a lawsuit for compensation was the way to obtain justice. The principles of discoverability entail the injured party’s ability and circumstances to investigate these grounds for deciding whether to sue. A person who never thought about these things until years later, when he came across some new information or the idea of suing popped into his head, does not qualify for an extension of the basic two-year limitation period.

[6] The law of limitations, including the principle of extension through discoverability, balances the rights of the aggrieved to a reasonable time to investigate and the wrongdoer to after-the-fact peace. A plaintiff without cause to investigate simply does not engage the discoverability principle.

[7] In the balance of these reasons, I will first outline the legal principles of discoverability when applied to a suitable motion for summary judgment and analyze the common issues. Next, I will apply the analysis to each of the plaintiffs’ circumstances.

Discoverability and Summary Judgment

[8] Johnson & Johnson argued the three actions were statute-barred, because the plaintiffs knew or ought to have known the grounds for bringing their suit at least two years prior to the issuance dates of their statements of claim. If the court is satisfied that there is no genuine issue requiring a trial on this point, the court must dismiss the actions. In summary judgment motions involving the expiry of a limitation period, the defendant need not concede that the material facts establish liability. Rather, the factual inquiry starts with the premise that the plaintiff started the action because he discovered the claim. One then looks back to the earliest time he had that same stage of knowledge: Lawless v. Anderson, 2011 ONCA 102, para 32, and Soper (Guardian of) v. Southcott, para 22.

[9] The plaintiffs argue that the plaintiffs could not have known two material facts until they consulted the law firm: the identity of the manufacturer and the listing of the meshes on the law firm’s target list. Another way to express this point is that the start of the limitation period reset itself if, in the lawyers’ opinion, they needed an additional fact before starting the suit.

[10] The general two-year limitation period for the commencement of legal proceedings under Ontario Limitations Act, 2002, SO 2002, c 24, Sch B, s. 4, runs from the day the claim was discovered. Under s. 5(2), the presumptive date is that of the act or omission on which the claim is based, unless the contrary is proved. Once a defendant has pleaded an applicable limitation period, the plaintiffs have the burden to prove the claim was not reasonably discoverable within that limitation period: Clemens v. Brown. Under the current Act, the plaintiffs’ burden of proof is defined by the following criteria under s. 5(1):

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). 2002, c. 24, Sched. B, s. 5(1).

[11] Statutes follow well-established drafting conventions: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), at p. 203. The first convention is to group related concepts and provisions and sequence words, phrases, clauses, and other units following a rational plan: at pp. 208-209. The above s. 5(1)(a) criteria are organized in a progressive fashion, starting with the injury, adding the cause of the injury and the identity of the likely defendant, and concluding with the recognition that a lawsuit is what the injured party should do to remedy the harm.

[12] Rule 20.04(2)(a) states that the court must grant summary judgment, if there is no genuine issue requiring a trial. This condition will exist when the evidence on the motion “(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 v. Mauldin, 2014 SCC 7, paras 47-49. Subrule 20.02(2) also requires the responding party to set out in the evidence specific facts showing there is a genuine issue requiring a trial. The courts have long established a rule that both parties must put their best foot forward: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, para 9. Subrule 20.04(2.1) empowers the court with fact-finding powers, including the ability to draw reasonable inferences from the evidence.

[13] It falls to this court to determine, in each of the three cases, whether the limitation period expired before the plaintiff commenced his action. The factors delaying the discovery of the claim in this case concern the plaintiffs’ facts, abilities, and circumstances. The court must construe the relatively sparse information provided by the plaintiffs as the high water line of the evidence that could be presented at trial. Within the framework of s. 5(1) of the Act, the discoverability question hangs on actual or deemed knowledge of the following:

1. occurrence of the injury, the latest event being recovery from the revision surgery;
2. causal nexus between the injury and product manufacturing issues;
3. identity of the manufacturer; and
4. whether a lawsuit against the manufacturer would be appropriate.

[14] All three plaintiffs had completed secondary school or college education. This means they all acquired Ontario’s community standard of sophistication to participate in civil society at least at a basic level. None of them had any medical training, but they all had surgeons. At the time of the events, they were all middle-aged. None professed to be persons under an intellectual disability.

[15] Before turning to the individual cases, the court must determine the value of the law firm’s evidence that it generally does not advise the client to sue the manufacturer unless the product is on one of its lists. To ascertain this fact, the firm first needs to order the hospital chart to identify the product. In each instance, the mesh was identified by name or by product label on the operative record. This last fact simply established that the plaintiffs could have ascertained the product information and identity of the defendant, by requesting the hospital records and waiting for a typical delay of several weeks or months. The only real fact that was not within the direct capabilities of the plaintiffs to ascertain was the contents of the Preszler list. The logic of contacting the law firm is therefore essential to the discoverability analysis.

[16] The court knows nothing about Mr. Pelletier’s decision to contact the law firm. The other two decided to pursue the claim after random encounters with advertising or information on the internet. There is an element of delayed onset of injuries, in that it took several years for symptoms to reach the point of the patients requiring the repair or removal surgeries. But that delayed the discoverability in each case to a point still long before the two-year mark prior to the commencement of the actions.

[17] There was no evidence that the manufacturer suppressed information to federal health regulators or to medical science generally. Indeed, as defence counsel pointed out, the meshes in question remain in wide use. Beyond the unproven allegations in the statements of claim, the plaintiffs’ evidence shed no light about the nature of the defect or how doctors performing the revision or removal surgeries could have been prevented from telling the patients about the defect.

[18] The only evidence in the motion records of a suspected defect was the listing on the Preszler list. While being on the list is not evidence of a defect, I accept that it might provide a basis for the lay individuals to identify the manufacturer and to ascertain whether it would be appropriate to sue. (The logic is that if the mesh is on the law firm’s list, there must be something wrong with it that only the lawyers knew about.) The lawyer whose affidavit contained this information did not state when the suspected defect came to her law firm’s notice, or how long the firm has advertised its services for product liability cases involving this type of mesh.

[19] What ultimately undermined the plaintiffs’ argument that the claims were not discoverable until the hospital records confirmed whether the mesh in each case was on the firm’s list was the absence of a rational connection between the discovery and the individuals’ awareness of the harm in having suffered pain and requiring the revision surgeries. Their affidavits recounted the pain following the implant surgery and the subsequent surgeries as clear evidence that the original surgery had failed. After a period of recovery following the revision surgery, including removal of the mesh, their suffering was over.

[20] Had the thought crossed their mind that someone should be required to pay for their suffering, they could have told the court of a journey of inquiry progressing from their knowledge of the suffering to the cause of it, then to the persons responsible for the cause, and finally a recognition that starting a personal injury suit was the way to obtain compensation for the pain. Breaking it down this way could seem like stating the obvious, but it is important to observe that this is the very process described in s. 5 and in the case law. Discoverability needs to be supported by diligence and evidence of impediments to investigation. Otherwise, the court cannot rely on the delayed discovery to relieve the plaintiff of the expired limitation period. The purpose of the statute, to eliminate a person’s qualification as a “person with the claim” for s. 5(1) or a “person with a claim” for s. 5(2), would be defeated if it failed to eliminate a person whose injury failed to motivate him to sue.

[21] If there was no Preszler list and no advertising, the conclusion could be that the prescription period tolled indefinitely, at least until the 15-year anniversary of the original surgeries for the purpose of the ultimate limitation period under s. 15.

[22] The idea that the discoverability trigger can be a random occurrence long after knowing about the harm does not satisfy the duty of any litigant to pursue a civil remedy with reasonable diligence. The chronology in Soper (Guardian of) v. Southcott, 39 OR (3d) 737, provided an example of how strict the duty can be in accounting for the delay. In that medical malpractice case, the plaintiff started taking notes and inquiring about the cause of her problems shortly after the surgery. The Court of Appeal concurred with the motion judge that the plaintiff’s failure to take significant steps after receipt of the medical records disallowed her from excluding that time from the counting of the limitation period.

[23] This requirement of diligence has survived the transition from knowledge of a cause of action to knowledge of a claim, under the current Act: Lawless, at para. 22. The language of s. 5(1)(b), that a reasonable person “ought to have known,” imports both a rational connection between each of the s. 5(1)(a) criteria concluding with the recognition that a lawsuit is appropriate. The legislature expects the reasonable person suffering injury, or any form of injustice, to begin and continue the inquiry. Reasonable discovery means the time when someone pursuing the grounds for a lawsuit could be expected to identify the criteria. It also recognizes the unfairness to defendants of being deprived of the opportunity to preserve evidence to deny or oppose the claim.

[24] To relieve the plaintiff from a rational basis for tolling limitation periods would be contrary to the purpose of limitation periods as statutes of repose. Knowledge that a proceeding would be appropriate, as stated in s. 5(1)(a)(iv), is the end point of an inquiring driven by the injury or other harm. The discoverability inquiry cannot apply to a person whose injury was resolved longer than two years before a hearing, and who, by chance or some mental cue, decided to contact a lawyer to seek monetary compensation. This court has held that to pin discoverability on a “eureka moment” in which the material facts of an injury come together at a time of the plaintiff’s choosing injects unnecessary certainty: Barry v. Pye, 2014 ONSC 1937, para 44.

[25] The plaintiffs’ theory of discoverability placed heavy emphasis on their inability to ascertain the defendant’s identity until receipt of the medical records and cross-checking with the Preszler target list. The plaintiffs could have obtained the medical records from the original surgeries at any time after their revision surgeries. The inclusion of the mesh products in the list, to the extent the lawyers feel the claim is more viable against the ones on the list, is not a change that postpones discovery of the claim: Barry, at para. 44. For the purposes of s. 5(1)(a)(iii), the discoverability of the identity of the manufacturer can only be delayed for a reasonable time after the patient attends at the hospital or writes a letter to requisition the records.

[26] The issue on which the motions for summary judgment stands or falls cannot be a random or unexplained event tolling the limitation period. Rather, the court must examine the extent to which each plaintiff has met the burden of demonstrating that the s. 5(1)(a) aspects of claim could not have been discovered prior to a date two years before the issuance of his statement of claim. I will now turn to the individual circumstances of each plaintiff.

Sergio Fappiano

[27] Mr. Fappiano’s surgery took place in 2009. By 2015, the mesh had to be removed due to persistent issues and recurrence of the hernia. He contacted Preszler on March 31, 2021, after a friend saw something on the internet about problems with the mesh. The firm obtained the hospital records identifying the product on June 17, 2021. The court issued the statement of claim on August 11, 2021.

[28] Mr. Fappiano has a high school diploma and was born in 1963. He worked as a house painter, until a back injury rendered him disabled. When the mesh was removed in 2015, he was told the mesh had adhered to his bowels. However, no one told him this had anything to do with a defect in the mesh. I observe, in passing, that this was a loaded assertion. The fact that no one told about a defect means nothing, unless Mr. Fappiano identified the defect that eluded his investigation. The Limitations Act, s. 14, allows potential defendants to alert potential plaintiffs, but the common law imposed no duty on Johnson & Johnson to come forward to invite Mr. Fappiano to sue.

[29] The presumptive start of the limitation period can be delayed until 2015, when the consequence of the insertion of the allegedly defective product came to a head. He knew that something had gone wrong with the mesh. He could have ordered the original hospital chart from 2009. There was no evidence about how long that could have taken, beyond the inference that it took less than three months for the lawyers’ request. Mr. Fappiano would not have known that the mesh was on the Preszler list. However, there was no evidence about any steps he took between 2015 and 2021, either to ask more questions of his doctors or to consult a personal injury lawyer.

[30] Mr. Fappiano’s evidence fell well short of explaining why he could not have discovered the cumulative elements of s. 5(1)(a), including the fact that a lawsuit was appropriate, within several months of his 2015 removal surgery. The two-year limitation period could not be extended much beyond 2018.

[31] Mr. Fappiano’s action is therefore statute-barred.

William Wiebe

[32] Mr. Wiebe’s surgery took place in 2010, and in 2011 he underwent a second surgery to deal with an issue involving growth of nerves around the mesh. In February 2020, he saw an advertisement by Preszler about problems with the mesh and decided to retain the firm. The firm obtained the hospital records identifying the product on April 23, 2020. The court issued the statement of claim on December 7, 2021. (The plaintiffs provided no explanation for the further delay.)

[33] Mr. Wiebe was born in 1952 and has a college diploma in hotel and restaurant management. Mr. Wiebe deposed that the medical professionals never told him in 2011 that the mesh was defective in any way. The issue of possible defects did not cross his mind, until he saw the advertisement. The affidavit also did not disclose whether it also crossed his mind to pursue anyone for the problems arising from the 2010 surgery. His evidence was clear that he did nothing to inquire about the cause or responsibility for the nerve growth around the mesh or whether the mesh had any role to play in this occurrence.

[34] As in Mr. Fappiano’s case, the absence of any kind of inquiry for a long period beyond the two-year period provided no basis to conclude that a reasonable person could not have known of the material facts and the grounds for bringing a suit much beyond the end of 2013 or 2014.

[35] Mr. Wiebe’s action is therefore statute-barred.

Robert Pelletier

[36] Mr. Pelletier’s surgery took place in 2012. By January 2018, the mesh had to be removed due to persistent issues and recurrence of the hernia. His doctor told him the issue was related to his body’s rejection of the mesh, but he did not know the model or manufacturer. He contacted Preszler on April 12, 2019, and retained the firm on April 23, 2019. There was no evidence explaining what motivated him to do that, or why he chose the firm to handle his case. The firm obtained the hospital records identifying the product on October 15, 2019. The court issued the statement of claim on April 21, 2021.

[37] Based on the theory that he could not have discovered the claim until the hospital record of the product matched the Preszler list, his position was that the limitation period did not expire until October 15, 2021.

[38] Mr. Pelletier has a high school diploma and was born in 1963. He worked as a welder, until an injury ended his career, and he started receiving workers’ compensation. He has since returned to part-time work as a security guard. After the 2018 mesh-removal surgery, the doctors told him his body had rejected the mesh. They did not inform him of “anything defective about the mesh.” He stated in his affidavit:

At no time up until 2018 did I understand that my treatment had anything to do with the defendant's product that has been implanted in me since 2012. At no time before 2018 did any health care practitioner tell me that my problems were related to that mesh or that there was any defect or deficiency of that product and/or how it was utilized.

[39] While the second sentence implicitly contradicted his other statement that no one told him about a defect, I am unable to draw a clear inference from it that he did know enough in 2018 that he would be expected to start the suit by January 2020. Unlike the other two plaintiffs, there was no evidence of what led him to the law firm in April 2019, let alone the steps he took from January 2018 to find out more about the cause of his earlier problems.

[40] What further distinguished Mr. Pelletier from the other two plaintiffs was that he did contact the firm well within two years from January 2018. He contacted the firm on April 12, 2019, and the firm launched the suit more than two years later, on April 21, 2021. The firm could have started the action after the receipt of the hospital records in October 2019.

[41] In the absence of evidence explaining what new information, circumstance, or event motivated Mr. Pelletier to contact the law firm in April 2019, the court can only consider his awareness of the facts at the time of the 2018 surgery and draw the inference from rule 20.02(2) and 20.04(2.1) that he made no efforts to inquire into the elements of s. 5(1)(a) until he contacted the firm to seek compensation for what happened to him between 2012 and 2018. Because of the lack of an explanation for his delay in contacting the law firm, the court must consider the timeline involving a reasonable person with Mr. Pelletier’s injury starting to look for a law firm during the first few months of 2018.

[42] He started his initial inquiry fifteen months after the January 2018 surgery without explanation for the delay in initiating any inquiry. The objective “reasonable person” test could afford him the six-month delay in obtaining the hospital records, assuming the Preszler list was a means of obtaining advice that the product could have been defective. However, such a delay would postpone the date of discovery from early 2018 and not from April 2019. Even allowing a generous range of counting the sequence of events by adding the delay in obtaining the records and some time for Mr. Pelletier to obtain an appointment with a member of the law firm, he was unable to demonstrate that the date of discovery could be extended beyond the end of 2018. Even getting to the end of 2018 would have been a stretch.

[43] On the evidence presented, no trial is required to establish that a reasonable person in the circumstances and abilities of Mr. Pelletier should have been able to ascertain that Johnson & Johnson’s mesh was the suspected culprit and that a lawsuit was appropriate, before the end of 2018.

[44] Mr. Pelletier’s April 2021 action is therefore statute-barred.

Conclusion

[45] I am satisfied that there is no genuine issue on the face of the record requiring a trial. The three actions are therefore dismissed, with costs.

[46] If the parties are unable to settle the costs of the actions, counsel for the defendants shall submit an agreed schedule for exchange of bills of costs and submissions, within 20 days hereof.

Edward Akazaki
Date: July 15, 2025