Dale v. Frank et al, 2017 ONCA 32

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A plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered.

Date Heard: January 10, 2017 | Full Decision [PDF]

Counsel for the plaintiffs had issued a press release, indicating that the defendants were being sued by other patients for medical negligence. After this press release, several other plaintiffs sought to commence an action against the defendants. The plaintiffs conceded that more than two years had passed since the medical procedure that allegedly caused their injuries. However, the plaintiffs argued that they had not discovered that the injuries were caused by the defendants’ negligence until alerted by the press release.

The Court of Appeal held:

In our view, the motions judge was correct to hold that a plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered. To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant’s liability to her. This is too high a bar for a plaintiff to have to meet. (paragraph 7)

The Court of Appeal confirmed the principle, which was stated in Lawless v. Anderson, 2011 ONCA, 102, that a claim is discovered when the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.

Read the full decision [PDF]
Gillian Mays
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Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.