McMillan v. Adeite, 2016 ONSC 3918

Discoverability principle extends limitation period when Plaintiff not advised of serious condition by doctor

Released June 13, 2016 | Full Decision [CanLII]

Following her May 14, 2011 MVA the Plaintiff was diagnosed with soft tissue injuries. She was referred to a Physiatrist and underwent an EMG and MRI due to her continuing complaints and severity of her symptoms. The MRI took place in September 2011 and the Plaintiff was never advised of the results. The Plaintiff was referred back to the Physiatrist in June 2013 due to continued complaints, he advised her that she had two herniated discs in her neck, which were revealed on the MRI from September 2011. He also advised her that her condition was serious and that she should see a lawyer. The Plaintiff retained counsel who issued a Statement of Claim on September 30, 2013. The Defendant brought a motion for summary judgment based on the expiry of the two year limitation period.

Justice Corkery found that Plaintiffs act reasonably when they defer to the expertise of their physicians and it is unreasonable to hold them to a standard higher than their doctors. However, even if the Plaintiff had followed up with her test results, those results would probably not have been available until after September 30, 2011 and therefore her claim would still have been brought in time. He dismissed the defendants motion.

Read the full decision on CanLII
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Jan received her Bachelor of Arts (Honors) in Development Studies from Huron University College at the University of Western Ontario in 2005 and her J.D. from Western's Law School in 2009. While attending law school, Jan volunteered with the school's Community Legal Clinic and Pro-Bono Students Canada. She also participated in an international exchange program at ESADE in Barcelona where she studied both International and European Union law.

Before joining Gluckstein Personal Injury Lawyers, Jan completed her articles at a prominent personal injury firm. She was called to the bar in June 2010.

Jan's personal injury practice is dedicated to medical negligence.

When not practicing law, Jan enjoys travelling, playing soccer and volleyball.