Tara M. Sweeney

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiff, Moira Caron, sued for damages following a slip and fall in her workplace kitchenette.

The court dismissed the action, finding that the defendants, as occupiers, met their positive duty of care under the Occupiers' Liability Act by maintaining a reasonable system of cleaning, inspection, and call service.

The court also found that the plaintiff failed to prove that her ongoing complaints and inability to return to work after January 2011 were caused by the slip and fall incident, attributing them instead to a pre-existing anxiety disorder.

Following the dismissal of the defendant physicians' summary judgment motion based on the expiry of the limitation period, the court determined costs.

The defendants argued for divided success because the plaintiff had invited the court to grant summary judgment in her favour on the limitation issue.

The court rejected this, finding the plaintiff was entirely successful in resisting the motion.

The court awarded partial indemnity costs of $25,000 to the plaintiff and $10,000 to the intervenor (the plaintiff's former lawyers), noting that while the moving parties should not be saddled with double costs, the intervenor was entitled to a modest award.

The plaintiff suffered a duodenal perforation during outpatient surgery in January 2013, leading to severe complications.

She initiated three actions: the first against her supervising gastroenterologist and "Dr. John Doe" within the limitation period; the second in May 2016 against the gastroenterology fellow who performed the procedure (Dr. Marc Fournier) and other implicated doctors, after identifying them through hospital records; and the third in December 2016 against an emergency doctor (Dr. Hébert) after an expert report suggested his delayed antibiotic administration contributed to her negative outcome.

The defendants in the second and third actions moved for summary judgment, arguing the actions were statute-barred.

The court dismissed the motion, finding genuine issues for trial regarding discoverability, particularly concerning the plaintiff's reasonable diligence in identifying defendants and obtaining expert opinions, given her severe illness and the complexity of the medical facts.