The plaintiff brought a contested motion to amend the Statement of Claim to: (1) add particulars/further details to the facts that have already been pled; and (2) add two additional defendants. The existing defendant physician also brought a cross-motion to have the action dismissed asserting no genuine cause of action and delay.
Held by Master J. Josefo: Motion to amend to add particulars was denied, Motion to add new defendants allowed, and the cross-motion was dismissed.
Reasons: The plaintiff became a paraplegic after spinal surgery by the defendant surgeon in 2011. The surgeon and hospital where the surgery was performed were added within the limitation period with the crux of the claim being lack of informed consent and surgical misadventure. Over 6 years after the claim was filed, and 8 years after the alleged incident, the plaintiff sought to add two defendants (family doctor and chiropractor) on the basis that they failed to diagnose the spinal tumour.
Amendment to Claim
The existing defendant opposed the amendment of the claim to add further particulars on the basis that the proposed amendments amounted to raising new causes of action beyond the limitation period. In denying the amendments, Master Josefo found that the proposed amendments added specific new facts beyond what was pled and new grounds of negligence which were not permissible due to it being well beyond the limitation period.
Adding Defendants
The proposed defendants opposed the motion to add them as defendants on the basis of limitation period. The court found that the claim was not one that was obvious and that the potential negligence of the proposed defendants was therefore only known when the medical records were obtained and reviewed by counsel. Given counsel had filed the notice of motion to add within two years of the records being reviewed and the claim being discovered, the plaintiff was allowed to add the proposed defendants.
Cross-Motion to Dismiss Claim
The existing defendant’s cross motion to dismiss was primarily based on the fact that the existing timetable which was obtained in June 2018 was breached. In denying the motion, the Master pointed out that the delay needed to be viewed from the time the timetable was issued (2018) and not from when the claim was originally filed in 2013 as the original timetable motion had dealt with, and excused, the original delays. In rejecting the cross motion, the court found there was no prejudice to the existing defendants and there was a reasonable explanation for the new delays. As this was not a summary judgment, the claim of no genuine issue for trial could not be considered.
