by Rozmin Mediratta April 02, 2020 3 min read

Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.

The motion judge dealt with two issues:

  1. Whether the limitations issue can be determined on summary judgment
  2. Whether the action is statute barred as it was commenced outside the limitation period

With respect to the first issue, the plaintiff agreed with the defendants that the limitation issue was appropriate for summary judgment and should be finally decided on this motion.

The motion judge then turned to the second issue.

In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”. The plaintiff argued that she could not have alleged one of the eighteen[1] particulars of negligence in the Statement of Claim prior to receiving the RCDSO’s decision.

Unusually (the motion judge noted), the defendants relied on the plaintiff’s own admissions in her affidavit and on cross-examination to assert that the plaintiff was out of time.

After reviewing section 5(2) of the Limitations Act and the relevant case law, the court concluded that the plaintiff had failed to rebut the presumption under section 5(2) of the Limitations Act, and made the following findings:

  • “Certainty” is not required;
  • The plaintiff does not need to know a defendant’s act or omission was “culpable” in order for the loss that causes to be discovered;
  • The discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; and
  • Discovery does not depend upon awareness of the totality of the defendant’s wrongdoing.

Finally, the court found that the decision of the RCDSO was not necessary to start the running of the limitation period in the case at bar. In doing so, the court stated that it has been clear since the Lawless decision that an expert opinion is not required, and quoted from Lawless(para. 28):

“A formal written medical opinion is not required - what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form them come in.”

The court added that the fact that a plaintiff’s understanding of the facts and theory of liability changes as the result of expert input received after a claim has been issued does not mean the claim was not discovered until the expert opinion was obtained.

The motion judge also found that, in the alternative, the claim is statute barred under section 5(1)(b) of the Limitations Act. Based on the record, she found that a reasonable person with the plaintiff’s abilities and her circumstances acting with due diligence ought reasonably to have known that she had a claim against the defendant dentist prior to receiving the decision of the RCDSO. The court noted that the plaintiff admitted that she did nothing except file the complaint with the RCDSO, which is not admissible in a civil proceeding, the plaintiff knew that she would receive no compensation as a result of the College complaint, and she did not retain a lawyer to look into the case until after she had that decision from the College.

This decision is one of the few addressing how the limitation period in a civil proceeding is (or is not) affected by a decision in a College proceeding, and is a good reminder that defendants and plaintiffs alike are entitled to certainty and finality in litigation.


[1] The plaintiff originally argued she could not have alleged two of the particulars of negligence, but it was narrowed down to one on cross-examination.

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