Lawless v. Anderson et al.,

• Jurisdiction: Ontario
• Judge: Weiler, Blair and Rouleau, JJ.A.
• Neutral Citation: 2011 ONCA 102
• Citation: 2011 ONCA 102,(2011), 276 O.A.C. 75 (CA),81 CCLT (3d) 220,[2011] OJ No 519 (QL),276 OAC 75,(2011), 276 OAC 75 (CA),276 O.A.C. 75,[2011] O.J. No 519 (QL)
• Date: 07 December 2010
• Court: Court of Appeal (Ontario)

Lawless v. Anderson (2011), 276 O.A.C. 75 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.015

Lillian Lawless (plaintiff/appellant) v. Alvin James Anderson and La Fontaine-Rish Medical Group Ltd. (defendants/respondent)

(C52232; 2011 ONCA 102)

Indexed As: Lawless v. Anderson et al.

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

February 8, 2011.

Summary:

The plaintiff underwent breast augmentation. She sued the surgeon who performed the surgery in negligence. The surgeon applied for summary dismissal of the action. A second defendant, La Fontaine-Rish Medical Group Ltd., was noted in default.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 2723, granted summary judgment dismissing the claim in negligence against the surgeon, holding that it was statute-barred, as the applicable limitation period had expired. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiff underwent breast augmentation surgery - She sued the surgeon in negligence - The surgeon applied for summary dismissal of the action - A motions judge granted the motion, holding that the action was statute-barred as the applicable limitation period had expired - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - At issue on the motion and on appeal was discoverability under s. 5 of the Limitations Act - The court had to determine what information the plaintiff needed to have in order to discover that she had a cause of action in negligence against the surgeon arising out of the surgery that he performed on her - The plaintiff's position was that, "The missing link for discoverability was a medical opinion based on the patient charts." - This misinterpreted the case law - The plaintiff had knowledge of the material facts on which the claim was based following a meeting with another doctor - The case law did not provide that obtaining the patient charts and a medical opinion were necessary to discover a claim where the charts and medical opinion added nothing of significance to the plaintiff's knowledge - The record revealed that the plaintiff's lawyer was seeking a written medical opinion in a form that could be filed in court - In his view, an opinion was necessary before proceeding with a claim, in order to rebut any future motion brought by the surgeon to dismiss the claim - He expected the Canadian Medical Protective Association to vigorously defend the claim and bring a motion to dismiss if the plaintiff did not have a medical opinion - However, this confused the issue of when a claim was discovered with the process of assembling the necessary evidentiary support to make the claim "'winnable".

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Cases Noticed:

Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), refd to. [para. 22].

Soper v. Southcott et al. (1998), 111 O.A.C. 339; 39 O.R.(3d) 737 (C.A.), refd to. [para. 23].

McSween v. Louis et al. (2000), 132 O.A.C. 304 (C.A.), refd to. [para. 23].

Patterson v. Anderson et al., [2004] O.T.C. 777; 72 O.R.(3d) 330 (Sup. Ct.), dist. [para. 25].

Urquhart et al. v. Jacklin et al. (1999), 124 O.A.C. 11; 90 A.C.W.S.(3d) 635 (C.A.), dist. [para. 27].

Gaudet et al v. Levy et al. (1984), 47 O.R.(2d) 577 (H.C.), refd to. [para. 28].

Counsel:

Paul J. Pape and Shantona Chaudhury, for the appellant;

T.N.T. Sutton and S.R. Shody, for the respondent, Alvin James Anderson.

This appeal was heard on December 7, 2010, by Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., delivered the following decision for the court on February 8, 2011.