In St. Jean v. Cheung, Mr. Justice John C. Murray undertook a detailed analysis of how the Limitations Act, 2002 has changed the law of limitations as it applies to claims on behalf of persons under a legal disability. While such a disability (e.g., mental incompetence or being an underage minor) formerly meant that a limitation period would not commence until the disability ceased, Justice Murray concluded that that is no longer the law if the claimant has a litigation guardian. Here, an action for medical malpractice was held to be prescribed because the plaintiff’s litigation guardian knew the relevant facts more than two years prior to commencement of the proceeding. The decision is an important one, particularly for the plaintiffs’ bar.
The plaintiff in this case was born in November, 1982. Shortly afterwards, he became severely hypoglycaemic and later suffered a severe brain injury. An action was brought on his behalf in November, 2002, naming as defendants his mother’s obstetrician and a hospital. The mother acted as litigation guardian for her son, who was mentally incompetent to sue on his own behalf.
In 2005, the plaintiffs retained a new solicitor. That lawyer obtained expert opinions about the postnatal care that the plaintiff had received. Based on those opinions, the solicitor commenced a second action on behalf of the plaintiff, again naming the mother as litigation guardian. Various physicians who had participated in the plaintiff’s postnatal care were named as defendants in the second action. The motion before Justice Murray was to consolidate the two actions or, in the alternative, to have the defendants in the second action (referred to throughout the reasons as “the New Defendants”) added as defendants in the first action.
Counsel for the New Defendants argued that the claim against the New Defendants was commenced after the expiry of the limitation period. Justice Murray agreed.
His Honour reviewed the law for the period prior to the coming into force of the Limitations Act, 2002 (the “effective date” of that legislation was January 1, 2004). He concluded that the old law did not differentiate between cases where a litigation guardian was involved on behalf of a person under a disability and those in which no litigation guardian had yet been named. In either case, s. 47 of the former Limitations Act provided that, in actions by mental incompetents or minors, “the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind”.
The new Act, however, made an important change to this law, in section 8:
8. If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.
Section 5 lays down the criteria for when a claim is “discovered”. Thus, once a person is represented by a litigation guardian, the discoverability principle established by s. 5 (and the two-year limitation period in s. 4) apply just as if the claimant was not under a disability. This is a significant departure from the former law, but St. Jean is the first case (so far as we’re aware) to focus on it.
The evidence disclosed that the litigation guardian knew or should have known the material facts giving rise to the second action by February, 2003 (some 11 months before the effective date of the Limitations Act, 2002). Justice Murray reasoned that because the previous limitation period had been extended by s. 47 of the old Act (see above), that limitation period had not expired by January 1, 2004. He also held that the claim could not be “discovered” by the litigation guardian prior to that date, since the old law was that discoverability was irrelevant so long as the disability continued. It was not until January 1, 2004 (the “effective date” of the new Act), that the plaintiff’s litigation guardian could “discover” the material facts for purposes of the legislation (even though in this case, those facts had actually been known to the litigation guardian for almost a year).
His Honour determined that since the former limitation period had not expired by January 1, 2004 and no proceeding had been commenced by that date, the transitional provisions in s. 25(5)1 of the 2002 Act applied:
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.
Thus, the claim was “discovered” by the litigation guardian on January 1, 2004. The new two-year limitation period applied as of that date. So, the limitation period expired on January 1, 2006. The second action was not commenced until May 17, 2006 and was therefore brought outside that limitation period.
Justice Murray’s reasons conclude with the observation that no argument against the limitation period, based on “special circumstances” had been made before him. He invited to counsel to do so, having regard to “the seriousness and importance of this decision for the plaintiffs”.
Justice Murray’s ruling is an important reminder to counsel acting for persons under a disability, that it is no longer true that limitation periods do not apply to such claims. The appointment of a litigation guardian effectively removes the preferential treatment that was formerly accorded such claims and the practising bar needs to be aware of this.