A case comment on Bendah v. Dr. Farine and Dr. Fleming, 2024 ONSC 624, and the Court’s permissive approach that arguably moves the goal posts on discoverability.
Written by Joseph Ur, JSU LAW
Pictured above: the discoverability goal posts being moved.
A recent Ontario Superior Court decision provided some interesting commentary on the collision of limitations periods with complex medical negligence cases. The result is a particularly permissive approach to discoverability in favour of plaintiffs.
According to the Court, if a case is complicated enough, and if the plaintiff has been diligent in their efforts, the limitation period against a particular defendant may not begin to run until the injured party obtains an expert opinion stating that the potential defendant breached the standard of care.
This decision appears to run contrary to well-settled limitation-period rules, in particular the rule that discoverability of a claim is not dependent on the plaintiff knowing that the claim may be successful.
Any counsel who is involved in a limitations-period motion, or who is seeking to bring a claim more than two years after a client’s loss, will want to make note of the impact of this case.
Background
The case involves (as suggested) a complex set of facts, and was ultimately dismissed for lack of causation.
Boiled down for the sake of the limitation-period piece: in 2011, a plaintiff brought a claim in negligence against various physicians within two years of the date of her injury. Her counsel did not bring a claim against anesthesiologists involved in the plaintiff’s care until some five and a half years later, in 2017 – well after the expiration of the limitation-period.
The plaintiff’s counsel only brought the claim against the anesthetists after, in 2015, he obtained an expert opinion critical of their care, implicating them for the plaintiff’s injuries.
It’s worth noting that the Plaintiff’s lawyer did receive a verbal opinion regarding the anesthesiologists' care in 2011. However, that expert was supportive of the care at the time.
Justice Wilson, writing for the Court, found that the case was particularly complex, and, relying on Joshi v. Dhada et al., 2022 ONSC 4910, that the applicable limitation period does not run in “circumstances where a plaintiff does not ‘sit idle’ but instead ‘take[s] steps to investigate the matters” referred to in the Limitations Act rules. [Bendah at para 274]
Essentially, because the plaintiff’s lawyer was “diligent” in their attempts to seek expert opinions, and because it wasn’t clear until 2015 that the anesthesiologists might have breached the standard of care and caused the plaintiff’s injuries, the Court held that the limitation-period for a claim against those physicians did not begin to run until 2015.
Analysis
This decision appears to fly in the face of the objective (“ought to have…”) portion of the discoverability rules, and erroneously makes discoverability dependent on the potential success of a claim.
Section 5(1) of the Ontario Limitations Act sets out that a claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew
i) that the injury, loss or damage had occurred,
ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
iii) that the act or omission was that of the person against whom the claim is made, and
iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)
In the Supreme Court’s decision in Grant Thornton LLP v. New Brunswick, the Court held that a claim is discovered “when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn.” [Grant Thornton at para 3]
The plaintiff in this case, or their counsel, arguably knew or ought to have known of these material facts; they knew enough to seek an opinion of an expert anesthesiologist before bringing their case in 2011.
That the opinion was supportive of the anesthesiologists' care is not material. The discovery of a claim does not depend upon the plaintiff knowing that their claim is likely to succeed, i.e. that the case against the prospective defendant will meet the test for negligence. This is a matter that will be determined by the lawsuit itself. [see for example the decisions in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005; and Hoy v. Expedia Group Inc., 2022 ONSC 6650 at para 243]
If we take the counterfactual scenario – that in 2011 the anesthesiology expert instead found that the potential defendant anesthesiologists breached the standard of care – then according to the Court’s analysis, the limitation-period would necessarily have begun on the date that the expert delivered their opinion, not the date of the injury.
This cannot be how discoverability of a claim operates. To pin discoverability of a claim on the result of an expert’s opinion as to the success of an element of the test for negligence focuses on whether a plaintiff has knowledge of each constituent element of the claim, and the timing of that knowledge. This approach was rejected by the Supreme Court in Grant Thornton, and for good reason – it ignores the objective elements of the test for discoverability, and causes uncertainty for litigants, particularly defendants, contrary to the purpose of the Limitations Act.
Interestingly, Justice Wilson wrote that the act of “including as a defendant every physician or nurse who rendered care to a patient is not appropriate and is not the standard for a lawyer practising in the medical negligence field.” [Bendah at para 268] However, this ignores the reality that many lawyers do practice in this way in order to put forward their clients’ claims within the limitation-period.
This case is sure to come up on future limitation period motions unless overturned on appeal – an unlikely prospect given the defendants’ success in the claim writ-large. Plaintiff-side counsel, not only in the medical negligence context but also in cases with complex facts and multiple potential defendants, will seek to rely on this case to extend limitation-periods beyond the two-year period following a loss.