Rawsthorne v. Marotta, 2017 ONSC 2182

Discoverability is triggered when the plaintiff knows that some damage has occurred and she has identified the specific tortfeasor who caused the damage. Knowledge of the damage alone does not trigger the limitation period.

Released May 10, 2017 | Full Decision [CanLII]

This is a dental malpractice action relating to the dental treatment that was provided to then 18-year old plaintiff in October of 1992. The plaintiff and her family commenced the action nine years later in October of 2001. The defendant dental surgeon and the defendant hospital each brought a summary judgment motion to dismiss the action against them by advancing a limitations defence. The dental surgeon argued that the plaintiffs’ action is time-barred by the one-year limitation period in s.89(1) of the Health Professionals Procedural Code. The hospital relied on the two-year limitation period in s.31 of the Public Hospitals Act.

Belobaba J. held that the plaintiffs’ action is time-barred as against the defendant hospital but not as against the defendant dental surgeon.

The defendant dental surgeon performed a left-sided TMJ surgery on March 10, 1992. He then performed another surgery on October 27, 1992. During the second surgery, he inserted a silastic implant (“the implant”) into her left TMJ.

In 1994, another dental surgeon performed three surgeries on the plaintiff and removed the implant. The subsequent dental surgeon told the plaintiff that the implant had a perforation in it “the size of a quarter”. He removed more debris from the perforated implant and used a bone graft from the plaintiff’s rib to reconstruct part of her left TMJ. In 1997, he removed more implant debris.

In January 2001, the plaintiff’s infant son accidentally hit her in the jaw and she collapsed in pain. The plaintiff argued that it was around this time that she began to investigate whether the implant that had been removed in 1994 was the cause of her facial pain and related health problems.

The plaintiff soon learned that the implants were not only mechanically defective but biologically hazardous. The scientific evidence showed that the implants perforate and disintegrate requiring immediate removal, and that the disintegration process released granular material into surrounding soft tissue that caused “progressive bone degenerative changes” and “giant cell foreign body responses”.

On the facts, Belobaba J. could not find the evidence that the plaintiff knew or ought to have known about the highly toxic biological hazards relating to the implant before she began researching the issue and retained legal counsel in or after the incident with her infant son in January of 2001.

Following Supreme Court of Canada’s decision in Peixeiro, Belobaba J. held that the cause of action accrues when the plaintiff knows that some damage has occurred and she has identified the tortfeasor who caused the damage. Here, the plaintiff could not identify the tortfeasor responsible for the post-removal biological harm until she began to research the implant after the incident with her infant son.

Accordingly, Belobaba J. held that the defendant dental surgeon’s limitation defence remains a genuine issue for trial and dismissed the summary judgment motion.

Regarding the hospital’s limitation defence, Belobaba J. held that s. 31 of the Public Hospitals Act is not subject to the principle of discoverability and therefore dismissed the action against the hospital.

Counsel for the Plaintiff: Brian Moher and Monica Zamfir

Counsel for the Defendant Dental Surgeon: Valerie Wise and Julia Lauwers

Counsel for the Defendant Hospital: Patrick J. Hawkins and John McIntyre

Read the full decision on CanLII
Written by

Ben enjoys the complexities of personal injury litigation. But what attracts him most to represent seriously injured people is the satisfaction that he receives from helping clients achieve the best possible outcome during their most difficult times. Ben’s practice is exclusively devoted to motor vehicle collisions, occupiers’ liability, accident benefits, product liability, medical malpractice, and wrongful death. For Ben, the cases that require special creativity and thinking outside the box are most gratifying.

In his spare time, Ben enjoys travelling, playing soccer, swimming, and playing backgammon. Ben also speaks Farsi.