Babjak v. Karas, 2018 ONSC 2093 (CanLII)

Authored by Sonia Nijjar, OTLA member and lawyer at Neinstein LLP.

The defendant successfully brought a motion for summary judgment on the basis of the limitation period in this action over a radial keratomy eye procedure resulting in vision problems.  

Date Heard: January 5, 2018 | Full Decision [PDF]

This motion seeking summary judgment was brought by the Defendant Dr. Yair Karas, an ophthalmologist.  In summary terms, Dr. Karas performed a radial keratotomy eye procedure (“RK Procedure”) on the plaintiff, Ingrid Babjak (“Ms. Babjak”) in or around 1991.  Ms. Babjak commenced legal action as against Dr. Karas and another ophthalmologist in October, 2014, some 23 years after the RK procedure.  Dr. Karas sought dismissal of the claim as against him on the basis that the action was brought after the one-year limitation under section 89 of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act) and/or the two-year limitation under the 2002 Limitations Act.   The summary judgment motion was granted by Justice Sanfilippo.

The moving party filed a law clerk’s affidavit containing a summary of the pleadings, a summary of the plaintiff’s discovery evidence, and a summary of the evidence that Dr. Karas expected to provide.  The court found the use of such hearsay evidence improper on the basis that direct evidence was available (Longo v MacLaren, 2014 ONCA 526).  The summary judgment motion was therefore determined on the basis of the plaintiff’s own evidence.

Ms. Babjak testified that she first noticed problems with her vision, which she did not have previously, almost immediately after the RK procedure.  She felt at that point that these issues were related to the RK procedure.  Despite these persistent issues, Ms. Babjak did not seek treatment or consultation for some 10-12 years.  In or around 2003, she sought consultation from an optometrist, who assessed Ms. Babjak’s worsening vision intermittently until 2014.  Simultaneously, between approximately 2011 and 2013, Ms. Babjak also consulted the co-Defendant, Dr. Raymond Stein, and even underwent another eye procedure performed by him.   Despite this, it was Ms. Babjak’s evidence that she only discovered her claim against Dr. Karas when, in May, 2014, she consulted with a different optometrist (Dr. Yoo) after reading a negative internet review about Dr. Karas.

The court considered the principles of discoverability to determine the time at which Ms. Babjak had enough facts on which to base an allegation of negligence against Dr. Karas.  By conducting a fact-driven inquiry based on Ms. Babjak’s own evidence, the motion judge concluded that she was aware of sufficient particulars to reasonably call into question the conduct of Dr. Karas by 1992.  To the extent that the Regulated Health Professions Act limitation applied, her cause of action against Dr. Karas would have been barred in 1993; alternatively, it would have expired in 1994 pursuant to the Limitations Act.

Although Ms. Babjak attempted to suggest that she required an expert opinion before she could have discovered her claim, the court reiterated that expert evidence is not required in every case for a limitation period to begin to run.  Additionally, it was clear in this case that Ms. Babjak did not require an expert opinion in order to discover her claim since she initiated the action without the benefit of such an opinion, given that Dr. Yoo was not an expert.  The court also reviewed the relevant case law in affirming the principle that knowledge of liability is not part of discoverability; rather, the limitation period begins to run at the point that the injured person knows or ought to have known of the material facts on which a claim in damages could be based and in regard to which legal action is an appropriate means to seek a remedy.

Summary judgment was accordingly granted.  The parties were encouraged to work out the costs issue, failing which written costs submissions were to be exchanged.

 

Read the full decision [PDF]
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