Doctrine of Special Circumstances still used to add parties after the expiration of a limitation period contained in the Trustee Act

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In Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 392, the Ontario Superior Court applied the doctrine of special circumstances to add a defendant to an action six years after the limitation period, as established by s.38 of the Trustee Act, expired.

Mr. Graham passed away shortly after having dental surgery where the medical professionals involved negligently failed to remove a medical sponge from his throat. Although the plaintiffs diligently brought an action within the limitation period, they moved to add the radiologist (Dr. Law) more than six years later. The plaintiffs assert that although the discoverability principle does not pertain to limitation periods under the Trustee Act, special circumstances applied because Dr. Law’s involvement was not revealed until such time thereafter.

Although infrequently used, the court concluded the doctrine of special circumstances did apply to this situation. The onus was on the plaintiff to (1) rebut the presumption of prejudice; and (2) demonstrate that special circumstances existed to justify the addition of the party.

The court held that while the loss of the limitation defence gives rise to an inference of prejudice, the plaintiffs’ were successful in rebutting this presumption. The court weighed a number of contextual factors, including that the proposed defendant had not offered “evidence to show any non-compensable prejudice if the amendment is granted.” Further, the court found that there were special circumstances on the ground that the plaintiffs’ had no knowledge of the radiographer because the radiographs were not provided to the plaintiff until more than six years later. The court described such disclosure as “critical and unexplained” as the radiologist’s involvement brought to the plaintiffs’ attention was “out of the blue.” In applying the doctrine of special circumstances, the court recognized that although this doctrine has been abolished under the Limitations Act, 2002, it may still be applied to justify amendments after the expiry of limitation periods contained in other acts (see Canadian Imperial bank of Commerce v Green, 2015 SCC 60 at para. 152). Another important takeaway from this case is that while the onus lies on the plaintiff to rebut the presumption of prejudice established by the loss of the limitation defence, the defendant is discouraged from sitting idly without further advancing reason for such prejudice.

​Co-authored by Susan Fridlyand