by Written on behalf of Wise Health Law March 13, 2019 4 min read

The Ontario Superior Court of Justice ("ONSC") recently dealt with the issue of discoverability relating to three related malpractice actions in Loy-English v. Fournier. The actions had been commenced over time as the plaintiff and her lawyers continued their investigations into the cause of, and responsibility for, her injuries. This case review deals with the judge's analysis of discoverability in such circumstances.

The Facts

The patient underwent an ERCP or Endoscopic Retrograde Cholangio-Pancreatography in January 2013 as an out-patient as a result of ongoing abdominal pain. Unfortunately, the procedure resulted in a perforation of her duodenum. This injury was not detected or known at the time of her discharge from the clinic.

The patient began to suffer extreme pain and as a result and went to the Emergency Department ("ED"). A series of tests were performed, but all were negative for infection, septic shock and adverse medication reactions. Shortly thereafter she became extremely ill and was admitted to intensive care where she almost died. She remained in hospital until late October 2013.

The impacts on her health were severe and included both physical and cognitive impairments.

The First Malpractice Action

The patient retained counsel in July 2014. An action was commenced within the two year limitation period. The gastroenterologist whom the plaintiff thought had performed the ERCP was named. He defended in September 2015 and pleaded that the procedure had been performed by a gastroenterologist "fellow" under his supervision. Further, the x-ray review made before discharge had also been undertaken by that "fellow."

The Second Malpractice Action

The plaintiff commenced a second action in May 2016 and now made the "fellow" a defendant along with other health care professionals found in her medical chart.

The Third Malpractice Action

The patient's counsel obtained expert reports. One of them suggested that the ED physician may have played a critical role in the outcome because of a six (6) hour delay in the administration of antibiotics. As a result, a third action was commenced days after the reports receipt naming the ED doctor in December 2016.

Raising The Limitation Defence

The physicians in actions two and three pleaded the Limitations Act and brought motions for summary judgement seeking to dismiss those two actions. Their position was that these proceedings had been commenced more than two years after the surgery of January 2013 which was the presumptive start for the running of the two year limitation period. For these actions to have been timely, the limitation period would have to have started running on or after May 20, 2014, for the second, and on or after December 13, 2014, for the third action.

Discoverability - determining the limitation period

The resolution of the timeliness of the two actions depended on the subject of discoverability which is the legal determination of when the limitation period begins to run in a particular matter. The ONCA made it clear that this was not an exercise in extending the limitation period but rather one of determining when it began to run. As the defendants were bringing the motions to dismiss, they had to demonstrate that the expiry of the limitation periods was sufficiently evident that the issue could be determined without a trial.

The Law of Limitations

The Limitations Actpresumes that the date of discovery is the date of the act or omission giving rise to the claim unless the contrary is proven. The time of discovery triggers the running of the limitation period. The date of discovery is otherwise the earliest day when the plaintiff first knew, or when a reasonable person with the abilities and in the circumstances of the plaintiff, ought to have known the following:

  1. that the loss had occurred;
  2. that the damage was caused by or contributed to by an act or omission;
  3. that the defendant committed the act or omission;
  4. that having regard to the nature of the damage or loss an action was the appropriate means to seek a remedy for it.

The Discoverability Dilemma

It is easy to determine the date a medical treatment or error occurred. It is also easy to provide evidence of the time the decision was made to sue a defendant and why it was then felt appropriate to commence an action. These two dates however only give a range of when the limitation may have expired. The determination of the precise time of discoverability is resolved by the Limitations Act which lays out a test with both objective and subjective elements.

The subjective element involves an analysis of the plaintiff's circumstances throughout the time range. The objective element requires an analysis of what a reasonable person should have known through an examination of their efforts to discover, or what they could (should) have found, through reasonable diligence. As the ONCA made clear, it is a standard of reasonableness, not one of perfection.


The ONCA dismissed the defendant's motions for summary judgement in both actions. It did so on the basis that the plaintiff had met her onus and established that there was a genuine issue for trial as to when the material facts to allow her to discover her claims had occurred. The ONCA felt that there were good reasons to leave the final determination on the question of due diligence to the trial judge. This is because an analysis of what capacity the plaintiff had, what records she could have accessed and her cognitive state while in the hospital and afterwards is an analysis intimately related to questions of causation and assessment of damages.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.

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