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January 2018

Latency of Claims for Allied Healthcare Providers

Anthony Gatensby
Anthony Gatensby,
Associate Lawyer

by Anthony Gatensby

Limitation periods, sometimes referred to as proscription periods, refer to the time that a party has to commence an originating court process. They are governed by provincial statutes.

The main purposes of limitation periods are to provide certainty and finality, as well as to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9:

Lawsuits should be brought within a reasonable time. This is the policy behind limitation statutes.... Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter... Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute. A statute of limitation is sometimes referred to as an "Act of peace”.

The applicable Ontario statute is the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Section 4 of that Act provides for a general “2-year rule”:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

The claim is presumed to have been discovered on the day on which the act or omission took place (s. 5(2)).

What would appear to be stable and fixed is, in fact, subject to exceptions upon exceptions, because the Act does “provide otherwise”.

For example, there are proceedings for which there is no limitation period (see s. 16(1)), such as for student loans under the Ministry of Training, Colleges and Universities Act, the Canada Student Financial Assistance Act or the Canada Student Loans Act (s. 16(1)(k)). 

...while a claim is presumed to have been discovered on the day on which the act or omission took place, this can be rebutted.

The Act also "provides otherwise" with respect to certain circumstances in which the limitation period "does not run” (ss. 6, 7, 11). For example, limitation periods do not run while the person with a claim is a minor (s. 6) or is incapable (s. 7).

Most importantly, while a claim is presumed to have been discovered on the day on which the act or omission took place, this can be rebutted. A claimant must prove the following:

(1) 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).  

The factors above are an objective test in that a claimant is required to act with due diligence in determining if s/he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a): Soper v. Southcott, (1998), 111 O.A.C. 339 at p. 345 (C.A.). However, the sympathies of the case can never be underestimated in evaluating how a judge will apply limitations law.

Two interesting issues are canvassed below in the context of limitations in medical malpractice.

I. The Treating Relationship may Delay the Limitation Period

While the decisions interpreting discoverability are numerous and fact-specific, several are of particular interest to those engaged in the field of medical malpractice. These tend to specifically center on the idea of a proceeding being an “appropriate means to seek to remedy” a claim.

The recent decision of the Court of Appeal for Ontario in Brown v. Baum, 2016 ONCA 315 addressed the following question:

1      This appeal raises squarely the issue of discoverability and the commencement of the limitation period when a doctor continues to treat a patient to try to correct damage that occurred during or following surgery...

In this case, Dr. Baum had performed breast reduction surgery on the plaintiff, Diana Brown. The surgery was on March 25, 2009. Further surgeries were performed to remove necrotic tissue. The last procedure was on June 16, 2010, and the plaintiff issued a claim on June 4, 2012. Therefore, the claim was issued within two years of the last corrective surgery, but over three years after the initial surgery.

The legal issue was therefore:

4      ... The motion judge found that as of July 2009, Ms. Brown knew she had suffered an injury that was caused or contributed to by an act or omission of Dr. Baum and therefore she met the first three limbs of discoverability, as set out in s. 5(1)(a)(i-iii) of the Limitations Act, 2002 at that date.

5      However, because Dr. Baum continued to treat Ms. Brown to ameliorate her complications, the motion judge found that the fourth limb, s. 5(1)(a)(iv), was not met because Ms. Brown did not know that "a proceeding would be an appropriate means to seek to remedy" the injury, loss or damage she had suffered. The limitation period did not commence until June 16, 2010, the date of Ms. Brown's last ameliorative surgery by Dr. Baum. As a result, Ms. Brown's statement of claim, issued on June 4, 2012, was issued within the limitation period.

The motions judge – which was notably Justice Mew, who is considered one of the foremost authorities on limitations law in this province – found that a treating relationship may stall a limitation period:

13      The motion judge concluded that on the record in this case "[i]t would be unreasonable and inappropriate...to start the two-year limitation clock running against Ms. Brown while the defendant's good faith efforts to achieve a medical remedy continued." In so finding, he emphasized that he was not finding as a rule that the limitation period will not commence until the doctor-patient relationship ends in every case where the relationship is ongoing after the injury, loss or damage has occurred – only that it might not, depending on the facts and circumstances of each case.

18      The motion judge's application of the subsection to the facts on this record was particularly apt: he concluded that because the doctor was continuing to treat his patient to try to fix the problems that arose from the initial surgery, that is, to eliminate her damage, it would not have been appropriate for the patient to sue the doctor then, because he might well have been successful in correcting the complications and improving the outcome of the original surgery. On the evidence of Dr. Brown, the specialist who provided Ms. Brown with a second opinion, by September 2010, Dr. Baum, in fact, was successful in ameliorating Ms. Brown's damage.

While the existence of an ongoing treating relationship will not by itself extend a limitation period, it is now well-accepted in the industry that any corrective procedures will do so.

Interestingly, this decision does seem to put a doctor’s duty of good faith to their patient at odds with their own right to self-preservation. If any corrective procedures can continue their own liability, what incentive is there for a physician or treating health practitioner to continue with their relationship with the patient?

II. Limitations on Crossclaims and Third Party Claims for Contribution and Indemnity

Claims for contribution and indemnity are dealt with differently under the Limitations Act than claims for damages proper:

18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place.

There are divided decisions from the Superior Court of Justice as to whether discoverability is available to claims for contribution and indemnity initiated by a defendant.

On the one hand, s. 18 appears to create a specific rule for determining when a claim for contribution and indemnity is discovered. Once the party seeking indemnity (the defendant) is served with the injured party's statement of claim, the claim is discovered and the two-year limitation period starts to run. The legal theory grounding the contribution and indemnity claim is therefore not relevant.

This approach was explicitly adopted by Justice Perell in Miaskowski v. Persaud, 2015 ONSC 1654, where His Honour emphasized that section 18 uses the word “deemed”, which does not allow for discretion:

[81]           Pursuant to s. 18 of the Limitations Act, a claim for contribution and indemnity is deemed to be discovered on the date upon which the “first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought,” and with this deeming provision, the limitation period expires two years after the date on which the claim is served.

Justice Perell noted that while there was no decision on point for this position, the Court of Appeal had previously spoken of the legislative history and appeared to accept that there was no discoverability (see Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378 at paras. 20, 24 and 28).

In Demide v. Attorney General of Canada, 2015 ONSC 3000, Justice Leach held the opposite. He found generally:

85]         In other words, I think section 18, properly read in context with other provisions of the Limitations Act, 2002, supra, merely creates a truly rebuttable presumption, (and not a conclusive one), that all matters relevant to advancement of a claim for contribution and indemnity were discovered on the day the first wrongdoer is served with the claim in respect of which contribution and indemnity is sought.  That, in turn, creates a presumption that the basic limitation period will expire two years from that date, unless it is proven that such matters were not discovered or capable of discovery through the exercise due diligence until some later date.

The analysis employed by Justice Leach was that service of the statement of claim simply becomes the presumptive date that the limitation period runs for the purposes of s. 5(2) and cannot be interpreted as a freestanding interpretation.

Indeed, I would note that in Placzek v. Green, 2009 ONCA 83 (C.A.), Justice Simmons for the Court described the operation of s. 18 as involving a deeming provision; however, she also spoke of s. 18 involving a presumption, which, in turn, suggests that there might be a role for the discoverability principle. Justice Simmons stated at paragraph 24 of her judgment:

Section 18(1) is a deeming provision relating to contribution and indemnity claims. It deems the day the injured party's statement of claim is served on the contribution and indemnity claimant to be the day on which the acts or omissions on which the claim for contribution and indemnity is based took place. When read in combination with s. 4 and s. 15, s. 18 establishes the date of service of the injured party's statement of claim as the presumed commencement date for the basic two-year limitation period and the actual commencement date for the ultimate 15-year limitation period with respect to contribution and indemnity claims...

The oddity created... is that a limitation period may be longer for a plaintiff than for the defendant.

This issue has not yet reached the Court of Appeal directly, and as such we are left with this uncertainty in the law.

The oddity created by the approach espoused by Justice Perell is that a limitation period may be longer for a plaintiff than for the defendant. The mischief that this creates is that a plaintiff can choose whether to bring in another possibly negligent party as a defendant or simply recover fully from any other defendant that is at least 1% liable. This has the potential of being incredibly punitive against a defendant who may not have been able to discover the liability of a potential third party.

Conclusion

Due to the procedural and substantive complexity, limitation periods continue to generate extensive case law regarding exceptions to exceptions. The above is a small sample of this complexity.

Early referral to legal counsel is the best method of ensuring that in these cases that defence rights are adequately protected.


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