The Plaintiff, Ms. Taylor, had undergone a jaw surgery in 2004. Ms. Taylor alleged that the surgery was performed negligently and without her consent. She commenced a personal injury action both on behalf of herself and her son (who was then a minor but reached the age of majority in 2008) in relation to this procedure in February 2020.
The Defendants brought a Motion for Summary Judgment seeking to dismiss the proceeding on the basis that it was not issued within the time periods as prescribed by the Limitations Act.
Justice Diamond reviewed the law applicable to Motions for Summary Judgment, the Limitations Act, incapacity to commence a proceeding, and willful concealment.
Summary Judgment
The Court reiterated the leading principles relating to Summary Judgment. Rule 20.04(2) of the Rules of Civil Procedure outlines that Summary Judgment is to be granted where there is no genuine issue requiring a trial. As a result of the 2010 amendments to the Rules, the powers of the Court to grant Summary Judgment have been enhanced to include weighing evidence, evaluating credibility and drawing reasonable inferences from the evidence.
If the moving party has proven that there is no genuine issue requiring a trial, then the burden shifts to the responding party to prove that its claim has a real chance of success, as outlined in Sanzone v. Schechter, 2016 ONCA 566. The responding party is expected to put its best foot forward and place all evidence in the record for the Court.
If the Court determines that there is a genuine issue requiring a trial, then the Court must determine whether the need for a Trial may be avoided by making use of its expanded fact-finding powers outlined in Rule 20.04(2.1). The recent decision of Oxygen Working Capital Corp. v. Mouzakitis, 2021 ONSC 1907 outlines a non-exhaustive list of questions for the Court to consider. These questions include whether Summary Judgment provides a fair and just result (as compared with a mini-Trial or Trial), whether the evidentiary record before the court sufficiently allows the Judge to make findings of fact and credibility, whether any evidence is missing that would be needed for basic fairness, and whether further processes would be required to make factual or credibility findings.
Limitation Period
Justice Diamond reviewed the basic principles of s. 5 of the Limitations Act, which outlines the principles of discoverability. The law is clear that a person with a claim is presumed to know of the claim on the day the act or omission on which the claim is based occurred, unless the contrary is proven. A review of case law makes it clear that:
- The Plaintiff must act with due diligence to determine whether he has a claim (Miaskowski v. Persaud, 2015 ONCA 758);
- The Plaintiff is not required to have a comprehensive understanding of the potential claim in order for the limitation period to start running (Lawless v. Anderson, 2011 ONCA 102); and
- It is the knowledge of the material facts that support a cause of action, not the extent of damages, that triggers the start of the limitation period (Lieu v Wong, 2016 ONCA 366).
The Court went on to discuss the ultimate limitation period of 15 years, as outlined in section 15 of the Limitations Act, as well as the limited exceptions that would permit a Plaintiff to commence a claim outside this timeframe. As outlined in s. 15(4) of the Limitations Act, these exceptions include:
- Incapable persons who are not represented by a Litigation Guardian;
- Minors not represented by a Litigation Guardian; or
- Defendants who either willfully conceal the act or omission that was the basis for the claim, or who is willfully misleading about the appropriateness of a proceeding as a means of remedying the injury.
Incapacity
Justice Diamond reviewed the law pertaining to the meaning of incapacity, and reviewed the list of non-exhaustive potential indicators for the Court to consider when assessing incapacity as well as what it means to be incapable due to “physical, mental or psychological condition”, as outlined in the recent decision of Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447.
Justice Diamond specifically noted that there is a distinction between failing to understand and appreciate the risks and consequences and being unable to do so. He noted that it is only the latter that can lead to a finding of incapacity. He further indicated that, in order to provide a lack of capacity to commence a proceeding, it is essential for the party to tender persuasive medical and/or psychological evidence to support that position. This does not require the filing of expert opinions, but does require some form of admissible evidence, such as the report of a treating physician with an appropriate background and experience.
Willful Concealment
The Court also reviewed the law pertaining to willful concealment of the injury, loss or damage. As outlined in the decision of Colin v. Tan, 2016 ONSC 1187, Justice Perell described the three elements of fraudulent concealment, which include:
- The Plaintiff and Defendant have a special relationship;
- Given the special or confidential nature of the relationship, the Defendant’s conduct is unconscionable; and
- The Defendant conceals the Plaintiff’s right of action either actively or the right of action is concealed by the manner of wrongdoing.
In order to meet the test for wilful concealment, the Defendant must hide, disguise or cover up the conduct or identity of the wrongdoing, such that the Plaintiff is ignorant of the cause of action because of the misconduct of the Defendant.
Analysis
Justice Diamond reviewed whether Summary Judgment was applicable in the case at hand. Because this decision was in the context of a Motion for Summary Judgment, the Defendants bore the burden of satisfying the Court that it has no genuine issue for trial. He ultimately found that the Defendants did meet this burden, given that the proceeding was commenced in 2020, approximately 16 years after the date of the allegedly negligent procedure. Since the ultimate limitation period is not subject to discoverability, and the action was commenced more than 15 years after the date of the incident, then the legal proceeding is to be dismissed subject to the Court making a finding that one or more of the exceptions from s. 15(4) apply.
Since the Defendants had met their burden, the onus shifted to the Plaintiffs to show that any of the exceptions apply. The Plaintiffs asserted that Ms. Taylor was incapable of commencing a proceeding due to physical and psychological impairments that reached the level of incapacity. The Plaintiffs tendered evidence by way of their own affidavits, and there was no evidence from any treating medical providers. The only medical evidence in the record took the form of isolated medical records attached to the Affidavit of the Plaintiff. The Court found that the Plaintiffs’ evidence fell short of the requirements as set out in Carmichael. The Court ultimately found that the evidence on the Motion did not support a finding that Ms. Taylor was incapable during the requisite time period.
The Plaintiffs argued that the Court should order a mini-Trial based on the medical evidence. The Court reiterated that a mini-Trial should not be ordered when a party has chosen to tender a deficient evidentiary record on a Motion for Summary Judgment, as it would allow the party to buttress its deficient record.’
Justice Diamond reviewed the decision of Baig v. Mississauga, 2020 ONCA 697, in which the Court of Appeal upheld a Summary Judgment decision to dismiss a claim as being commenced outside of the Limitations Act. The Court found that the medical evidence contained as exhibits to the Affidavit of Ms. Taylor do not support a conclusion that she lacked capacity during the requisite timeframe, from 2004 to 2020.
His Honour further noted that the Family Law Act claims of Ms. Taylor’s son were derivative of her claims, and as such, they cannot exist independently.
With respect to the allegations of wilful concealment, there was no evidence tendered by the Plaintiffs that Ms. Taylor (or any of her medical providers) had requested x-rays and other documentation following the allegedly negligent surgery. Justice Diamond commented that the Defendants had no obligation to disclose such documents to Ms. Taylor without a request for them. He outlined, at paragraph 46, that “[o]ne cannot be accused of concealing something which one is not obligated or requested to produce.”
The Court ultimately found that there was no genuine issue requiring a Trial, since the proceeding was commenced in contravention of the Limitations Act. The Court granted the Defendants’ Motion for Summary Judgment and dismissed the action.