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:
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 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:
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.
 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.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).
The past several weeks have been a challenging time for everyone. Health professionals have been bombarded with Emergency Orders and other pronouncements that can be confusing and at times seem contradictory.
With the rules and restrictions changing so rapidly, it is advisable to keep an eye on the website, social media feeds, and other communications from your respective regulatory College for your College’s interpretation and position on what you should and should not be doing during the pandemic. While the Emergency Orders and pronouncements apply to a broad spectrum of health professionals, individual Colleges can provide guidance and interpretation about how those orders and pronouncements relate to your specific profession.
But what if you’re still unsure about whether you can provide a particular service to a specific patient/client; or some other aspect of your professional obligations at this uncertain time?
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.