by Victoria Tremblett September 08, 2022 4 min read

Section 4 of the Limitations Act, SO 2002, c 24, Sch B,states: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” While there are exceptions, in most actions of alleged malpractice and/or personal injury, the basic limitation period of 2 years from the date on which the claim is discovered applies.

In Grant Thornton LLP v New Brunswick,2021 SCC 31, the Supreme Court of Canada held that “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.” In some cases, this will be quite clear. For instance, a plaintiff who is hit by a car crossing the road at a cross-walk, likely had knowledge of the material facts on the date of the accident.

Moreover, pursuant to Section 5(2) of the Limitations Act, a person is presumed to have discovered the claim on the date on which the alleged act or omission giving rise to the claim took place. In the case of a motor vehicle accident, this would be the date of the accident.

However, given the complex nature of actions for alleged malpractice, the analysis of when a plaintiff discovered the claim can be more complicated.  It is understandable that in some cases, a plaintiff may not know immediately that the harm they suffered may have been related to malpractice, and they may not immediately have any reason to question the treatment they received.

However, it is important to distinguish between the discovery of material facts giving rise to the potential action, and understanding or discovering the merits of the action. A plaintiff may have knowledge of the material facts without knowing the merits of the claim.

In the recent case of Andrews v Pattison, 2022 ONCA 267, the defendant physician brought a motion for summary judgment on the basis that the action was commenced more than 2 years from the discovery of the claim. The plaintiffs argued that they did not discover the claim until they received supportive expert reports, notwithstanding that they had voiced their dissatisfaction with their physician’s care and met with a lawyer well before that. The Ontario Court of Appeal upheld the decision of the motions judge to dismiss the action on the basis that the limitation period had expired, specifically noting the difference between discovery of the material facts and discovery of the merits of the claim.

Andrews v Pattison,2022 ONCA 267

From approximately 2008 to 2013 Ms. Linda Gordon presented to her family doctor, the defendant Dr. Pattison, complaining of shortness of breath and chest pain. A chest x-ray was done towards the end of 2008 demonstrating no anomalies. Dr. Pattison ordered a further chest x-ray in May 2013, following which Ms. Gordon was diagnosed with lung cancer. In June 2013, Ms. Gordon expressed frustration to Dr. Pattison that a chest x-ray had not been done earlier, and subsequently proceeded with requesting copies of her medical records.

In January 2014, Ms. Gordon’s husband, Mr. Baker, met with a lawyer regarding a potential claim in medical malpractice with respect to the “substandard” care provided to Ms. Gordon. On February 6, 2014, Ms. Gordon herself met with the lawyer who explained the relevant legal concepts and the importance of an expert report in cases of alleged medical malpractice. In April, 2014, Ms. Gordon passed away as a result of her lung cancer.

Ms. Gordon’s family commenced an action against Dr. Pattison on April 11, 2016. Dr. Pattison defended the action, taking the position that the claim was statute barred by the expiration of the limitation period. The plaintiffs replied that they were not aware of, nor ought they have been aware of, a potential claim against Dr. Pattison until after Ms. Gordon’s death.

Dr. Pattison then brought a motion for summary judgment, arguing that the plaintiffs’ claim should be dismissed on the basis that the plaintiffs’ action was commenced more than two years after the discovery of the claim. The plaintiffs claimed that they did not discover the claim until they received supportive expert reports in August and December, 2015. The motions judge granted Dr. Pattison’s motion for summary judgment, and dismissed the plaintiffs’ claim, finding that both the deceased and her family had sufficient knowledge of the facts upon which to base a claim against the Defendant as far back as May 30, 2013 and certainly no later than February 6, 2014. 

The plaintiffs appealed the decision to the Ontario Court of Appeal. On appeal, both parties agreed that as per the Supreme Court of Canada’s decision in Grant Thornton LLP v New Brunswick,2021 SCC 31, “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.” The plaintiffs took the position that they did not have sufficient knowledge of those material facts until they received the supportive expert reports. The Court did not agree.

The motions judge specifically stated that “discovery of the facts upon which a claim may be based must be distinguished from discovering the merits of the claim itself.” In this case, the plaintiffs had immediately expressed concern regarding Dr. Pattison having not ordered a chest x-ray until May 2013, and consulted with a lawyer regarding the matter in early 2014. Accordingly, the Court of Appeal upheld the motion judge’s finding that the plaintiffs had actual knowledge of the material facts giving rise to the potential action no later than February 6, 2014.

The action was commenced over two years after the discovery of the claim, and as such, the action was dismissed.



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