The recent decision of Parker v. Chapman raises some interesting issues about the law of limitation periods in the post-Limitations Act, 2002 era. The ruling was made by Mr. Justice Barry MacDougall of the Ontario Superior Court.
This was a medical malpractice case. Mr. Parker died on April 16, 2003. On January 9, 2004, his widow retained counsel “to conduct an investigation and determine if a claim for medical negligence would be warranted against the doctors or hospitals who had treated the deceased, Frank Parker”.
An action was started on April 16, 2004 (the one year anniversary of Mr. Parker’s death), naming a hospital and various doctors as defendants. Also named as defendants were “John Doe” and “Jane Doe”, described in the judgment as “staff or agents employed by either of the two named hospitals who attended to and provided treatment to the deceased, whose identities were unknown to the Plaintiffs”.
In 2004, the plaintiffs’ solicitor received hospital records that referred to the deceased having been treated by Dr. Alan Selby in 1990 and 2000. The solicitors tried unsuccessfully to get records documenting the care that had been provided by Dr. Selby.
In September, 2004, counsel for the plaintiffs consulted an expert cardiologist. In 2005, that expert provided a verbal report, that the deceased had not received proper care, dating back to 2000, when he had been a patient of Dr. Selby. In 2006, the expert delivered a one-sentence report, saying “After reviewing the file again, I feel that Dr. Allen [sic] Selby should be added as a defendant in this case.”
On April 26, 2006, the solicitor for the plaintiffs advised opposing counsel of his intention to move to add Dr. Selby as a defendant. Justice MacDougall heard that motion, which was opposed by counsel for the proposed defendant.
His Honour perceived there to be two issues:
- Had the limitation period expired or was its commencement period postponed by the discoverability principle?
- If the limitation period had expired, should the court nevertheless exercise its discretion to add Dr. Selby as a defendant, notwithstanding the expiry of the limitation period, on the basis of “special circumstances” and “absence of prejudice to the defendants”?
It seems to us though, that there were other issues in this case that were not raised in argument and thus, not addressed in the decision of MacDougall J. We will look at these issues in the discussion that follows.
What Limitation Period?
It seems to have been assumed by counsel and by the judge, that there were only two possible limitation periods that might apply. Counsel for Dr. Selby argued that the applicable limitation period was to be found in s. 89(1) of the Regulated Health Professions Act, 1991. That one-year limitation period reads as follows:
No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested of or rendered by a person unless the action is commenced within one year after the date when the person knew or ought to have known the facts are facts upon which the negligence or malpractice is alleged.
So, Dr. Selby took the position that the claim against him was prescribed, not having been commenced (as against him) within one year of the date of death of the deceased.
Counsel for the plaintiff contended that the plaintiffs’ claim against Dr. Selby had not been discoverable by the time the Limitations Act, 2002 came into force (January 1, 2004) and that therefore, by virtue of s. 24(5) of the new Act, the Limitations Act, 2002 applied to the case, such that the limitation period was “two years from the date the plaintiffs knew or ought to have known the necessary facts”. The facts were alleged not to have been known until receipt of the expert’s opinion.
It does not appear that anyone raised the question of whether the applicable limitation period was in fact that found in s. 38(3) of the Trustee Act:
An action under this section shall not be brought after the expiration of two years from the death of the deceased.
This is one of the limitation periods that has been continued under the Limitations Act, 2002.
In this case, the claims sought to be advanced against Dr. Selby were presumably under s. 61 of the Family Law Act. Such claims are derivative of the cause of action vested in the estate of the deceased upon death. The Court of Appeal has held, in a number of cases, that FLA claims are barred by the expiry of the limitation period of whcih they are derivative. See, for example, Smith Estate v. College of Physicians and Surgeons (Ontario) (1998), 41 O.R. (3d) 481 (C.A.), leave to appeal to S.C.C. refused 1999 WL 33190520 and Von Cramm v. Riverside Hospital of Ottawa (1986), 56 O.R. (2d) 700 (C.A.).
The limitation period in section 38(3) of the Trustee Act has been applied in medical malpractice cases involving death, such as Giroux Esate v. Trillium Health Centre and William Harvey, 2005CarswellOnt 241 (C.A.) and Swain Estate v. Lake of the Woods District Hospital (1992), 9 O.R. (3d) 74 (C.A.).
What makes this limitation period particularly significant, in cases such as the present one, is that the discoverability principle does not apply to it. The Court of Appeal held, in the Giroux Estate case, that s. 38(3) had been specifically continued by the Limitations Act, 2002 “so that its common law status would be preserved and it would remain immune from the discoverability rule”.
Thus, it seems to us that there is some question as to whether it was even open to the court to consider the discoverability principle in this case.
Application of the Discoverability Principle
Justice MacDougall reviewed the history of the information that came to the plaintiffs’ solicitors and concluded that counsel for the plaintiffs had exercised appropriate diligence in trying to obtain clinical notes and records of Dr. Selby. He also felt that this was a case in which, “given the circumstances, a medical opinion was necessary and that the plaintiffs proceeded with reasonable diligence to obtain that opinion”.
He ruled that the limitation period did not begin to run (because of the common law discoverability principle) until the plaintiffs had received the verbal report from their expert on September 7, 2005. His Honour then applied s. 24(5) of the Limitations Act, 2002 and ruled that as the one-year limitation period under the RHPA had not expired before the coming into force of the Limitations Act, 2002, the limitation period was two years from September 7, 2005, with the result that the time had not expired for adding Dr. Selby as a defendant.
Section 24(5) says:
If the former limitation period did not expire before the effective date and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:
1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, the former limitation period applies.
According to Justice MacDougall’s analysis, the first branch of this section applied, such that “this Act applies as if the act or omission had taken place on the effective date”.
“The effective date”, i.e., the date on which the Limitations Act, 2002 came into force, was January 1, 2004. If the two-year limitation period ran from that date, then the claim would still have been prescribed because it was not until more than two years later, that counsel for the plaintiffs decided to move to add Dr. Selby as a defendant.
However, although not mentioned by MacDougall J., the discoverability principle has now been enacted in statutory form by ss. 4 and 5 of the new Act. Once the Limitations Act, 2002 came into force, the question became, when was the “claim” discovered?
“Claim” is now a defined term under the Act: “‘claim’ means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.
Likewise, there are now statutory criteria to enable a court to determine when a claim is “discovered”. They are set out in s. 5 of the Act:
(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).
Thus, clause 5(1)(a)(iii) and (iv), as well as subsection 5(1)(b), could support the conclusion reached by Justice MacDougall, that the limitation period did not start to run until September 7, 2005 in the circumstances of this case (and leaving aside the issue of the Trustee Act, discussed above).
Justice MacDougall also supported his decision on an alternative ground: “special circumstances”. He ruled that even if he had been wrong in finding that the limitation period had not expired, he would nevertheless exercise his discretion to add Dr. Selby as a defendant because of “special circumstances”.
As we have mentioned in earlier posts, there is controversy as to whether “special circumstances” is still a viable principle, in the wake of the enactment of s. 21 of the Limitations Act, 2002. It reads as follows:
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
Thus, on its face, s. 21(1) would have prevented Dr. Selby from being added as a defendant after the expiry of the limitatio period, unless the exception in s. 21(2) applied (see below). However, subsection 21(1) was not mentioned in Justice MacDougall’s reasons. It would therefore be unsafe, we think, to conclude that His Honour was ruling on whether the “special circumstances” power still exists. So far as we are aware, that analysis has yet to be undertaken by an Ontario court.
(However, our firm is involved in two such cases in which the application of s. 21(1) to the “special circumstances” power is squarely in issue. One of the two cases is to be heard next month.)
Even if Justice MacDougall had concluded that s. 21(1) has done away with the discretion to add parties under “special circumstances”, s. 21(2) contains an exception, where the purpose of adding a party to an existing proceeding is “the correction of a misnaming or misdescription of a party”. Since the plaintiffs here named “John Doe” and “Jane Doe” as defendants, within any possible limitation period, they might still have been able to argue that adding Dr. Selby as a defendant constituted only the correction of a misnaming of the defendant as “John Doe”.
As we discussed in a recent post, the “misnomer” cases involve the application of “the litigating finger” test. The question is whether a reasonable person would look at the original statement of claim (often naming a “placeholder” such as “John Doe”) and say, “Of course it must mean me, but they have got my name wrong.” Such circumstances have been held to constitute misnomer. But if the reasonable person, on viewing the statement of claim, would say, “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then misnomer is less likely to be found.
So, if that test had been applied in this case, the plaintiffs might have been able to argue that s. 21(2) still allowed them to add Dr. Selby as a party. However, the whole rationale underlying that exception to s. 21(1), is that the proceeding has already been commenced within the limitation period, albeit with an error in the naming of the defendant. So, s. 21(2) is not a mechanism for avoiding a limitation period. It simply allows for the correction of “naming” errors where a defendant has otherwise been properly included in a proceeding. Thus, in this case, s. 21(2) would only have been of use if the court had been satisfied that, by naming “John Doe”, the statement of claim was already pointing “the litigating finger” at Dr. Selby. We can’t tell from the decision whether or not such a finding would have been warranted on the facts of this case.
We wonder what the outcome of this motion would have been if Justice MacDougall’s attention had been drawn to the limitation period in s. 38(3) of the Trustee Act and to the caselaw holding that that limitation period is not subject to the discoverability rule. Had he applied that limitation period, then the only way to add Dr. Selby would have been on the basis of the discretion to do so where “special circumstances” are found. Although MacDougall J. did find that special circumstances existed here, he did not consider whether s. 21(1) of the Limitations Act, 2002 has taken away the discretion that formerly existed.
Consideration of these issues will have to await another case.