The Ontario Court of Appeal has released its decision in Liu v. Silver, 2010 ONCA 731. It dismissed the appeal from a motion judge’s ruling that dismissed the action on the basis that it had not been started on time. The motion judge found on a fact that before the appellant was discharged from the hospital on September 3, 2004, she knew that she had suffered an injury as a result of a surgical procedure performed by the respondent to which she had not consented. She knew from that point that litigation was an appropriate avenue to seek redress and she immediately sought legal advice with pursuing a claim against him. The Court of Appeal held that on these findings which were amply supported by the appellant’s own evidence, the motion judge did not err in concluding that the two year limitation period began to run from September 3, 2004. As the action was not commenced within the two year period, the motion judge properly granted summary judgment dismissing the action.
The plaintiff went into hospital for a D&C hysteroscopy and polypectomy or removal of a polyp. This was day surgery and she was expected to be able to return to work the next day. The hysteroscopy did not find a polyp but rather a fibroid tumour in the uterine wall. The surgeon decided to remove the tumour by conducting a myoectomy during which the uterus was perforated resulting in fluid loss. A second procedure was necessary due to a concern related to abdominal bleeding. The plaintiff was in fact suffering from a number of complications and was placed in the ICU for post-operative care. She remained in hospital for a total of 18 days. The initial procedure took place on August 16 2004. The plaintiff commenced her action on December 20 2006 nearly two years and four months afterwards. The defendant brought a motion for summary judgment on the basis that the limitation period began to run on August 20 2004 and no later than September 3 2004 when the plaintiff has sufficient knowledge she had a claim. The plaintiff took that position that she did not obtain sufficient knowledge until the receipt of a medical opinion in July 2006.
The limitation period is set out in s. 4 of the Limitations Act
2002, S.O. 2002, c. 24, Sch. B
which provides a proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered. Section 5 sets out the rules to determine when a claim was discovered. It provides that a claim is discovered on the earlier of the satisfaction of two separate tests found in sections 5(1)(a) and (b).
Section 5(1)(a) contains a subjective test that speaks to the plaintiff’s actual knowledge of the types of facts needed to start the running of the limitation period. It provides that a claim is discovered on the day on which the person with the claim first knew:
(i) that the injury, loss or damage had occurred,
(ii) that the injury, los or damage was caused 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.
Section 5(1)(b) contains an objective test and requires the plaintiff to be measured according to the standard of the steps a reasonable person would take to obtain the knowledge referred to in s. 5(1)(a). Specifically it deems discovery of the claim on 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 s. 5(1)(a).
It is important to note that section 5(2) places the burden on the plaintiff to rebut the presumption he or she of the matters giving rise to the discovery of the claim on the day of the act or omission. Courts have held the plaintiff has the evidentiary burden to prove the claim was issued within the limitation period[i]
. Such a determination is fact driven, to be decided based on the particular circumstances of each case[ii]
The motions court judge conducted a factual analysis of the knowledge required to cause the limitation period to run.
The pertinent facts were that the plaintiff was aware on the date of the initial procedure that she sustained a large bleed was fighting for her life. She received an explanation of what had happened from the surgeon in their first post-operative meeting. She also met with the hospital’s Chief of Obstetrics who went through the medical record with her and the chain of events that occurred during the procedure. The motions judge found that the plaintiff had actual knowledge that:
(a) the surgeon was unable to find the polyp she had consented to have removed,
(b) the surgeon instead removed a fibroid,
(c) Dr. Silver had not obtained the plaintiff’s consent to remove the fibroid,
(d) the removal of the fibroid resulted in damage to a blood vessel and “a large
(e) this damage included a lengthy stay in the hospital including the ICU,
tremendous pain, a large scar and an inability to move.
The medical opinion report obtained by the plaintiff added little of substance to the material facts the plaintiff was required to know in order for her to appreciate she had an action in negligence against the surgeon.
It was clear from the evidence that the plaintiff knew at a minimum that her injury was caused by the act of a surgical procedure being performed for which she had not consented. The plaintiff expressed no doubt that it was Dr. Silver who performed the surgery that resulted in her injury.
In the plaintiff’s meeting with the surgeon following the operation he informed her that he wanted to take responsibility for what he had done. The plaintiff testified that while in hospital she knew the surgeon was at fault, had some something wrong and that she ‘could go after him’ as the person who had done the surgery. It was noted in the medical chart within four days of the procedure that the plaintiff and her husband wanted to seek legal counsel. Prior to her discharge from hospital the plaintiff was planning to sue the surgeon and requested her medical records so that she could provide them to her prospective lawyer.
A plaintiff need not know the precise cause of her injury before the limitation period starts to run. It is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant[iii]
The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say the constituent elements of his or her cause of action. Error or ignorance of the law or legal consequences of facts does not postpone the running of the limitation period[iv]
The findings of the motion judge in respect of the subjective test were sufficient to dismiss the plaintiff’s action as it was brought out of time based on her actual knowledge. Nevertheless the motions judge also analysed the plaintiff’s behaviour in the context of the objective test. The motions judge found that the plaintiff failed to display reasonable diligence in that neither she nor her counsel provided an explanation for periods of delay that occurred before she commenced her claim. The plaintiff did not provide a reasonable explanation for her delay in retaining counsel after she knew of her injury. On discovery, the plaintiff described herself as a professional engineer who sophisticated enough to realize she required her medical records from the hospital in order seek an opinion from a lawyer, which she requested before leaving the hospital. The plaintiff testified she had acquired no new facts pertaining to her claim between her injury on August 16, 2004 and when she retained counsel in June 2005. She commenced the action over a year after she retained counsel. The plaintiff did not provide a satisfactory reason why it took nearly eight months ? from October 2005, when she requested a report from her medical expert until July 2006 when she received the report ? to obtain the report. When time is of the essence, it is not a sufficient explanation to say she made unsuccessful requests for the report.
The objective test requires the plaintiff to be measured according to the standard of the steps a reasonable person would take to obtain the knowledge. Such a determination is fact-driven, to be decided based on the particular facts of each case[v]
Courts deciding the applicability of the discoverability doctrine have made it clear a plaintiff does not have an infinite period of time to acquire the requisite knowledge. The determination of whether a plaintiff could have reasonably discovered the basis for a cause of action is evaluated in terms of the diligence a prudent person in the plaintiff’s place would exercise in seeking out and acquiring the facts[vi]
. In looking at the reasonableness of a delay in acquiring the knowledge, a relevant inquiry is whether there was an impediment to the discovery of the factual basis of the negligence, either because of a medical condition or an external factor[vii]
Copyright for this article is retained by the author Miles Obradovich of Obradovich Law Personal Injury Lawyers
[i] Findlay v. Holmes
,  O.J. No. 2796 (Ont. C.A.), McSween v. Louis
,  O.J. No. 2076, (Ont. C.A.)
[ii]Gaudet et al. v. Levy et al
.  O.J. No. 3312 (Ont. H.C.J.)
[iii]McSween v. Louis
,  O.J. No. 2076, (Ont. C.A.) per Feldman, J.A.
[iv] Nicholas v. McCarthy Tétrault LLP
, 2008 CarswellOnt 6320, (Ont. S.C.J.); aff’d 2009 CarswellOnt 5701(Ont.C.A.)
[v] Castronovo v. Sunnybrook & Women’s College Health Sciences Centre,
2008 CarswellOnt 178, (Ont. S.C.J.)
[vi] Gaudet et al. v. Levy et al
.  O.J. No. 3312
[vii] Morton v. Cowan
,  O.J. No. 4635