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

In Ontario, a malpractice action (a claim) against a health care professional must be commenced pursuant to the Limitations Actbefore the second anniversary of the day on which the claim was discovered. In other words within two (2) years of the plaintiff first knowing:

(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

(v) 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 item (i) above.

The Limitations Act creates a presumption that a plaintiff knows of the matters referred to in item (i) above on the day the act or omission on which the claim is based took place, unless the contrary is proved.

The Limitations Actalso establishes an ultimate limitation period of fifteen (15) years after which no claim shall be commenced.

STATUTORY EXCEPTIONS

Minors and Incapable Persons:

This basic limitation period does not begin to run for minors or persons incapable of commencing a claim while in that capacity or until they are represented by a litigation guardian in relation to their claim. Once they are represented by a litigation guardian, the basic rules above apply as if that guardian was the person with the claim.

Again the Limitations Actcreates a presumption that a plaintiff is capable of commencing a claim unless the contrary is proven.

Attempted Resolutions:

If the parties to a potential claim agree to have an independent third party assist them to resolve the claim between them, then the limitation period rules established above do not run from the moment of the agreement until:

(1) the date the claim is resolved;

(2) the date the attempted resolution process is terminated; or

(3) the date a party terminates or withdraws from the agreement.

Sexual Assault:

There is no limitation period for a claim based on a claim for a sexual assault.

CASE LAW EXCEPTIONS

The Ontario Court of Appeal ("ONCA") in Presidential MSH Corporation v. Marr Foster & Co. LLP held that there are two further exceptions, based on the wording of item (iv) above, where the basic rules above would be postponed creating a longer limitation period in which to commence a proceeding being where:

  • the plaintiff relies on the superior knowledge and expertise of the defendant, especially where the defendant undertakes efforts to ameliorate the plaintiff’s loss; or
  • there is an alternative dispute resolution process which has not yet run its course and which offers an adequate alternative to the commencement of a civil action.

Reliance:

Further support for this exception is found in the ONCA decision Zeppa v. Woodbridge Heating & Air Conditioning Ltd.This was a case of an action being dismissed for being barred by the limitation period. Although it supports the concept of the postponement of the limitation period based on reliance, it demonstrates that the plaintiff must prove actual and continued reliance on the defendant's superior knowledge and abilities while the defendant is attempting to remedy the plaintiff’s loss. Here the reliance had ended more than two years before the action was commenced.

Application to Health Law:

An example in the health law field would be attempted by the at-fault health care professional(s) to remedy or lessen the problems they caused. This may also require some denial by the health care professional(s) of any fault and an understanding that they would be now working to rectify the loss for the plaintiff.

ADR:

At first blush, this exception appears the same as the statutory exception "Attempted Resolutions". In part, that is because of the nomenclature. The statutory exception deals with a voluntary agreement to retain a third-party whereas the case law exception means an organized and existing review or appeal process under which the dispute can be resolved.

Application to Health Law:

An example in the health law field might be a hospital’s internal review policy where a plaintiff is agreeing to proceed on the basis that their issue may be resolved in this way.

At Wise Health Law, we draw on more than 30 years of combined health law and litigation experience to provide clients with superior legal guidance and representation. We focus exclusively on health and administrative law, and our lawyers are committed to serving Ontario’s health professionals and health organizations. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.



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