by Written on behalf of Wise Health Law March 28, 2019 3 min read

We recently reviewed limitation periods being extended through the concept of discoverability in a blog post entitled Limitation Periods and Discoverability. Discoverability is a method used by plaintiffs to extend a fixed limitation period which has otherwise expired. It is based on a codification of the common law and is now set out in the Limitations Act in section five (5). Discoverability focuses on the state of knowledge, or the presumed knowledge, of the plaintiff about their harm being the responsibility of someone else's fault or neglect and that an action was the appropriate means of seeking a remedy. Actions against hospitals and health care workers are now governed solely by the Limitations Act (2004) which establishes a two year limitation period subject to discoverability extending the period.

Discoverability for Limitation Periods outside the Limitations Act

This issue was dealt with by the Supreme Court of Canada ("SCC") in Peixeiro v. Haberman. There the SCC had to deal with the interpretation of the Highway Traffic Act ("HTA") of Ontario. The HTA set out a limitation period for actions seeking to recover damages occasioned by an automobile at two years from when the damages were sustained. The action in Peixeiro v. Haberman was commenced more than two years after the accident. However, since the HTA, properly interpreted in conjunction with the Insurance Act, the period's commencement was dependant on the plaintiff's knowledge of when their claim exceeded the threshold set out in the Insurance Act. The discoverability doctrine was therefore available and applied to extend the commencement of the running period for the limitation in the HTA.

The Older Limitation Period for Hospitals

Hospitals, their nurses, and their other employees were protected from the concept of discoverability until 2004 by different legislation than other health care workers, being the Public Hospitals Act ("PHA"). The PHA protection was repealed in 2004 with the passage of the Limitations Act. The old protection read as follows:

Any action against a hospital or any nurse or person employed therein for damages for injury caused by negligence in the admission, care, treatment or discharge of a patient shall be brought within two years after the patient is discharged from or ceases to receive treatment at the hospital and not afterwards.

In a close reading, it was clearly and intentionally worded to protect hospitals and their employees by reason of the hospitals being public institutions. This then was a strict limitation period with a specific starting and ending point. Although plaintiff's did attempt to apply the discoverability concept its use was rejected as being unavailable given the wording of the PHA protection. An example would be the Ontario Court of Appeals ("ONCA") decision in Von Cramm Estate v. Riverside Hospital of Ottawa. Therefore a plaintiff would be barred from an action even where they could not have known, or even discovered through due diligence, the negligence of the hospital until more than two years after their last treatment or discharge. This harshness could not be remedied by the discoverability doctrine given the non-existence of any reasonable interpretation of the section that the commencement of the period was anything other than the last date of treatment or in any way dependant on the plaintiff's state of knowledge. Any such remedy was, therefore, to be fashioned by the legislature and not the courts.

Takeaways

An understanding of the history of limitation protections for health workers is important knowledge to have despite the passage of the Limitations Act in 2004.

  • an understanding of the history of the law relating to limitations periods helps one to understand the meaning of past decisions;
  • there are still limitations in place outside of the Limitations Act and knowing the common law of discoverability helps to determine its availability in such cases;
  • Some malpractice cases drag on for years. It was only very recently that the ONCA had to deal with the PHA and the availability of the doctrine of discoverability in Endean v. St. Joseph's Hospital.

For more information about the history of limitation periods for health workers, or if you have other health law related questions, contact the health law litigators at Wise Health Law for forward-thinking, expert advice about health law matters and related litigation. We have significant trial and appellate experience and are passionate about helping health professionals and health care organizations understand and protect their legal rights. Contact us online or at 416-915-4234for a consultation.



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