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USING DISCOVERABILITY TO EXTEND THE LIMITATION PERIOD

In Ontario, the basic limitation period for when a legal action needs to be started is two years from the day on which the claim was discovered (Section 4 of the Limitations Act, 2002). A claim can be discovered in a number of ways.  Section 5(1) and (2) of the Limitations Act, 2002 states:

  1. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(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

(b) 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 clause (a).

 

(2) A person with a claim shall be presumed to have known of the matters referred to in clause

(1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

 

Personal injury plaintiffs commonly rely on Section 5 of the Limitations Act, 2002 in response to an allegation that their action is statute-barred as it was started after the basic 2 year limitation period.

In the Ontario Court of Appeal decision, Brown v. Baum 2016 ONCA 325, a medical malpractice case, the Plaintiff (Respondent), Diana Brown, suffered severe complications following a breast reduction surgery which was performed by the Defendant (Appellant), Dr. Joseph Baum, on March 25, 2009.  Ms. Brown brought an action against Dr. Baum alleging lack of informed consent on June 4, 2012, over 3 years after the initial surgery but within 2 years of when Dr. Baum last treated her to correct the original problems.

Dr. Baum was unsuccessful on his summary judgement motion to dismiss the action as statute-barred under the Limitations Act, 2002.  The motion judge found that as of July 2009, Ms. Brown knew she had suffered an injury that was caused or contributed to by an act or omission of Dr. Baum and therefore she satisfied sections 5(1)(a)(i-iii).

But, because Dr. Baum continued to treat Ms. Brown to correct the original problems, the motion judge found that s. 5(1)(a)(iv) had not been met because Ms. Brown did not know that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage she had suffered.  The Court of Appeal agreed with the motion judge that the fourth condition of discoverability under the Limitations Act, 2002 is met at the point when the claimant not only knows the factual circumstances of the loss she has suffered, but also knows that “having regard to the nature of the injury, loss or damage”, an action is an appropriate remedy.  Once she knows that, she has two years to initiate that action.

Because Dr. Baum was continuing to treat Ms. Brown to try to fix the problems from the initial surgery, it would not have been appropriate for Ms. Brown to sue the doctor then, because he might have been successful in correcting the problems and improving the outcome of the original surgery.   The Court of Appeal found that a reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting and reduce her damage.  Therefore, the limitation period did not commence until June 16, 2010, the date of Ms. Brown’s last corrective surgery by Dr. Baum, and Ms. Brown’s Statement of Claim was issued within the limitation period.

In contrast, the Plaintiffs in the more recent decision, Fontanilla v. Thermo Cool Mechanical 2016 ONSC 7023, were not as successful arguing discoverability.  The Plaintiffs brought a motion for an order granting leave to add additional defendants to the action.  It is just as important to determine whether the ability to bring an action has expired under Section 4 of the Limitations Act, 2002 when adding defendants as it is for bringing a separate action against those parties.

On January 31, 2011, the late Felisa Santo Fontanilla, a resident of Living Waters Residence Inc. (a retirement home), while in the bathtub turned on the hot and cold water taps for bathwater when the chrome diverter spout of the faucet burst, spraying scalding water over her body.  She suffered severe burns to sensitive parts of her body.  She passed away on October 6, 2011.

Mrs. Fontanilla’s family issued a Statement of Claim on January 25, 2013 (6 days before the expiry of the limitation period) against Thermo Cool Mechanical (the contractor hired by the retirement home to replace certain plumbing for the building in March 2010) and Living Waters Residence Inc.

Thermo Cool Mechanical delivered their Statement of Defence on June 11, 2014 and issued a Third Party claim naming a variety of parties on June 18, 2014.  The Third Party Claim alleged that it was an anti-scalding/mixing valve in the faucet that failed on January 31, 2011; the valve had been manufactured by Watts Water Technologies (Canada) Inc. (“Watts”) and had been supplied by Gayton Systems Development Inc. (“Gayton”)

Plaintiffs’ counsel swore in her affidavit of June 3, 2015 in support of the motion that she spoke with the insurer for the defendant, Thermo Cool on April 1, 2014 and learned for the first time of other potential parties, but the insurer did not provide her with any specific names, or contact information for those names or companies at that time.   Plaintiffs’ counsel swore in her affidavit that the Third Party Claim was the first time additional parties had been identified to the Plaintiffs by name.

The Court stated that the main issue when determining if a limitation period has expired to bar the Plaintiffs from joining Watts and Gayton as Defendants is whether there is evidence before the court that the Plaintiffs or their lawyer exercised reasonable diligence to identify Watts and Gayton as Defendants within the limitation period.  Reasonable diligence, however, is only one factor to take into consideration.  The Court considered the other factors (which are fact driven and particular to the circumstances of each case) set out in Galota v. Festival Hall Developments 2016 ONCA 585 as follows:

  • The identity and role of Watts and Gayton as manufacturer and supplier of the valve was not obvious to the Plaintiffs; but, by naming Thermo Cool as the contractor who coordinated the boiler replacement at Living Waters in March of 2010, the Plaintiffs indicated that they were aware of the malfunction of the plumbing in the building and, therefore, on notice that further inquiry was necessary to determine the actual manufacturer and supplier of the mechanics of the boiler replacement system, or the program to replace the faucet within the individual residential units;
  • There was no evidence before the Court about when the Statement of Claim was actually served on Living Waters and Thermo Cool. But, it was within the Plaintiffs’ power and control to have the Statement of Claim served on those Defendants forthwith after the action was commenced, and to require each of the Defendants to deliver a Statement of Defence within a reasonable time; and
  • The moving parties provided no evidence of the steps taken before or since the Statement of Claim was issued to recover the plumbing pieces or any records of those parts that would have informed them that it was an anti-scalding/mixing valve in the faucet that failed, which would have led them to the identity of who manufactured and supplied the valve.

Accordingly, the Court found that Watts and Gayton would suffer non-compensable prejudice if they were added as Defendants to the action.  Even though they were already Third Parties, they were protected in that the Plaintiffs first had to establish liability against the Defendants in order for the Defendants to have a claim against the Third Parties.   The Plaintiffs’ motion was dismissed.

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