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.
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