Soper et al. v. Southcott et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Citation: (1998), 111 O.A.C. 339 (CA),1998 CanLII 5359 (NS CA),1998 CanLII 5359 (ON CA),39 OR (3d) 737,43 CCLT (2d) 90,[1998] OJ No 2799 (QL),111 OAC 339,80 ACWS (3d) 1087
• Date: 27 February 1998

Soper v. Southcott (1998), 111 O.A.C. 339 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.026

Sharyn Elaine Soper, Tammy Lynn Brandow, Gary Alan Soper, Dwayne Michael Soper and Amanda Mae Brandow, Tessa Mary Lynn Brandow, by their litigation guardian Sharyn Elaine Soper (plaintiffs/appellants) v. Dr. F. Robert Southcott and St. Thomas-Elgin General Hospital (defendants/respondents)

(C28616)

Indexed As: Soper et al. v. Southcott et al.

Ontario Court of Appeal

McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc)

July 6, 1998.

Summary:

The plaintiffs sued an orthopaedic surgeon for damages for medical malpractice. The surgeon successfully applied to have the action dismissed on the basis that there was no genuine issue for trial where the claim was statute barred under s. 17 of the Health Disciplines Act. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Medicine - Topic 4324 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Medi­cine - Topic 4324 ].

Medicine - Topic 4324

Liability of practitioners - Bar to actions - Limitation periods - The plaintiff suffered a knee injury in 1974 - In 1991, the de­fendant orthopaedic surgeon performed a ligament reconstruction of the plaintiff's knee - She developed an infection in her knee joint - She underwent several pro­cedures - In 1993, she sought legal advice respecting medical malpractice and her lawyer obtained her hospital records - She underwent a knee replacement in 1994 - In 1995, she sued the orthopaedic surgeon for medical malpractice - A 1995 medical expert opined that the joint infection would have been avoided by more aggressive initial treatment - The Ontario Court of Appeal determined that her action was barred by the one year limitation period in s. 17 of the Health Disciplines Act - The 1993 receipt of the hospital records fur­nished her with the necessary facts for her claim - Section 17 postponed the limita­tion period until receipt of the necessary facts and she was required to act diligently in acquiring the facts.

Cases Noticed:

Findlay v. Holmes (1998), 111 O.A.C. 319 (C.A.), refd to. [para. 13].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429, refd to. [para. 13].

Gaudet et al. v. Levy et al. (1984), 47 O.R.(2d) 577 (H.C.), refd to. [para. 13].

Aguonie v. Galion Solid Waste Material Inc. (1998), 107 O.A.C. 114; 156 D.L.R.(4th) 222 (C.A.), refd to. [para. 14].

Clemens v. Brown (1958), 13 D.L.R.(2d) 488 (Ont. C.A.), refd to. [para. 14].

Law v. Kingston General Hospital (1983), 42 O.R.(2d) 476 (H.C.), refd to. [para. 21].

Statutes Noticed:

Health Disciplines Act, R.S.O 1990, c. H-4, sect. 17 [para. 13].

Counsel:

Brian J.E. Brock, Q.C., for the appellants;

David I. Hamer and Andrea H. Plumb, for the respondents.

This appeal was heard on February 27, 1998, before McKinlay and Austin, JJ.A., and Dunnet, J.(ad hoc), of the Ontario Court of Appeal. The following decision of the court was delivered by Dunnet, J.(ad hoc) and released on July 6, 1998.