Rumsam v. Pakes, [2019] ONCA 748

Full Decision

Guest Author – Miles Obradovich

Counsel for the Plaintiffs:
Kristian Bonn

Counsel for the Defendants
Andrew Kalamut, Scott Robinson

A plaintiff is obliged to exercise reasonable diligence to secure the name of a doctor who may have participated in negligent care to satisfy the requirements of the Limitations Act.

The plaintiff attended an urgent care clinic for treatment of a wrist injury. An x-ray was taken. The attending doctor reviewed the x-ray and advised the plaintiff of a possible hairline fracture of the scaphoid bone. He then discharged the plaintiff with advice to immobilize, rest, ice and compress the wrist. Days later, the clinic received an x-ray report confirming a suspected displaced scaphoid fracture. The report recommended a follow-up x-ray. A physician reviewed the report, but the plaintiff was not advised of the need for follow-up. The plaintiff’s condition worsened and she needed two surgeries to correct her wrist injury.

The existence of the second physician was mentioned within a paragraph of Dr. Pakes statement of defence. Examinations for discovery were held 1 year and 8 months following its delivery. At discovery, an undertaking was given to identify the second physician. This undertaking was answered 18 months later. After the passage of another 11 months, the plaintiff moved to add the second physician as a defendant. She alleged that this physician failed to advise and treat her, and that these failures resulted in delayed treatment of the fracture and subsequent surgeries. It was noted that the plaintiff had previously stated (in a factum filed one year prior to discoveries) that a physician not named in the action had placed a telephone call to her home the day following her attendance at the urgent care clinic to advise her about the x-ray finding and the radiologist’s recommendation for follow up.

The defendants opposed the motion, arguing that the claim against the second physician was statute-barred under the Limitations Act. The motion judge concluded that the claim against the second physician was not statute-barred.

The Court of Appeal summarized the applicable law. The test to determine whether the limitation period has expired on a particular set of facts is a question of mixed fact and law which attracts a standard of palpable and overriding error. Section 5(b) of the Limitations Act provides that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence” (emphasis added). The identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence. The law does not require that a prospective plaintiff know the exact extent or type of harm suffered, or the precise cause of the injury. Nor is it necessary to determine which of several persons is responsible. It is enough that there is a possible claim against them. Having the precise name of a defendant is not required as long as the name can be ascertained by exercising reasonable diligence. The due diligence requirement is not satisfied by waiting for someone else to advise who the correct defendant is.

The court found that by the date of the filing of her factum statement that the plaintiff knew that:

  1. There was a second clinic physician involved in her care;
  2. The second clinic physician knew about her x-ray findings;
  3. That physician did not inform her of the x-ray findings and the recommendation to undergo a second x-ray; and as a result
  4. She required two surgeries and suffered damages.

The only thing she did not know was the name of the second physician. Accordingly, as of that date, she was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(b) of the Limitations Act. The plaintiff did not make any inquiries to determine the identity of the second physician during the one year that passed from her factum statement to the examination for discovery. There was no reason to extend the limitation period beyond the second anniversary of her factum statement because the plaintiff failed to provide evidence that she would not have identified the second physician earlier had she exercised reasonable diligence.

There was a palpable and overriding error in the motion judge’s finding of mixed fact and law, as he:

  1. did not address the fact that in her own materials, the plaintiff provided evidence that she had knowledge of the material facts of the claim other than the name of the second clinic doctor;
  2. erred in his application of s. 5(b) of the Limitations Act, as he did not address the fact that the plaintiff had an obligation to exercise reasonable diligence to obtain the name as of her factum statement at the latest; and
  3. did not address the fact that the plaintiff failed to exercise reasonable diligence to obtain the second physician’s name.

For these reasons, the appeal was granted with costs in an agreed upon sum.

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