Judge Declines to Decide Discoverability Issue on Summary Judgment Motion, Despite Expanded Powers

Zurba v. Lakeridge Health Corporation is the first decision we have seen of a summary judgment motion decided under the amendments to Rule 20. Unfortunately, it suggests that “the new boss” bears a strong resemblance to “the old boss”. If this case is any indication, judges are not going to rush to use their expanded powers.

The amendments to Rule 20, which became effective last month, confer upon judges powers that they (arguably) did not have before: to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence. A judge hearing a summary judgment motion may require that oral evidence be given. (Only judges have been given these expanded powers, which makes us wonder whether it is impermissible for masters to draw reasonable inferences from the evidence.)

This was a medical malpractice case. One of the defendants, a physician, moved for summary judgment to dismiss the action, on the basis that it was prescribed, either by the one-year limitation period in the Regulated Health Professions At, 1991 or the two-year limitation period in the Limitations Act, 2002. Central to the motion was when the plaintiff’s claim was “discoverable”. Mr. Justice Peter Lauwers dismissed the defence motion and concluded that there was a genuine issue requiring a trial (viz., the date on which the claim was discoverable). He declined an invitation from counsel for the plaintiff, to decide the issue “definitively” himself, saying:

That is not my role as a motions court judge in this case. It seems to me that the question of whether this is a case in which a medical opinion is required for sufficient knowledge to be communicated to the plaintiff is a factual issue to be determined by the trier of fact who is able to assess first-hand the credibility of Mr. Zurba [the plaintiff] on the issue of when he first developed a view, or when he first ought to have developed a view, that someone erred.

The factual question as to the appropriate date of discoverability is one which ought to be tried and, per Aguonie, supra, on the facts before me, the outcome is not so certain that I am willing to rule definitively among the alternatives of October 17, 2003, June, 2004, or June, 2006, despite the amendments to Rule 20. I find that this is not a case in which it is in the interest of justice for me to exercise the powers under Rule 20.04(2.1). It would be more consistent with the interest of justice for such powers to be exercised at a trial when credibility can be properly assessed. That assessment of the evidence requires live witnesses in a trial context.

In the course of his reasons, Justice Lauwers discussed, at some length, the circumstances in which the limitation period for an action against a physician is postponed until the plaintiff has obtained a report from an expert.

Here, the plaintiff had fallen off a ladder and badly broken his ankle. The defendant physician was the first doctor involved in the plaintiff’s treatment. He elected not to operate and instead, cleaned and dressed the wound and applied a cast. He saw the plaintiff again a few days later, then had no further involvement with his case.

The plaintiff went on to develop infection in his ankle, for which he underwent treatment from other doctors. Ultimately, he did undergo multiple surgeries which “concluded unsatisfactorily” three years later. The plaintiff commenced action in December, 2006, about three and a half years after the accident. At the time, he did not have an expert’s opinion, that the care provided by the physician whom he had seen immediately after the accident, fell below the applicable standard of care. However, he obtained such a report in May, 2007, prior to this motion being heard. He evidently had received some oral medical advice prior to commencing the lawsuit, although there were no particulars about that.

The key issue that Justice Lauwers had to address was the defence submission, that the plaintiff had “discovered” his claim by October 17, 2003 at the earliest (the date on which he was seen for “worsening symptoms”) or June, 2004 at the latest. That was when the plaintiff was given a choice between amputation of his leg or further treatment. According to the defence, no medical opinion was required in order for the claim to be discovered.

Justice Lauwers reviewed the jurisprudence and concluded that, in the medical malpractice context, an important part of discoverability is determining that someone had “erred”. In some cases (His Honour used the example of a doctor operating on the left knee instead of the right), this will be immediately obvious. But in others, it will not. Here, Justice Lauwers would say only that:

This case may fall into the latter category, depending on the evidence, and that is a matter for the trier of fact. Perhaps Mr. Zurba actually formed the view earlier that someone had erred despite his affidavits, or perhaps he should have formed that view and proceeded earlier with due diligence to obtain a medical opinion, but that is also a matter of evidence for the trier of fact, given that the “reasonable person” test is used in considering the discoverability rule.

Accordingly, he dismissed the motion of the defendant physician.

We wonder whether he did the parties any favour by ruling as he did. Medical malpractice litigation is very  expensive, yet the parties now have no choice but to incur that expense if they wish to have a ruling on the discoverability issue, probably some years hence. It strikes us that the approach taken by Justice Lauwers, in deferring to trial a decision on discoverability, was not really any different from how a judge would have decided this motion before the amendments to the Rules came into effect. It remains to be seen whether other judges will make greater use of their new powers.

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