In Andrews v. Pattison, 2022 ONCA 267 (“Andrews”), the Court of Appeal for Ontario upheld the decision of the motion judge to summarily dismiss an action involving allegations of medical malpractice on the basis that the claim was statute barred under section 5(1)(a) of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”). The Court of Appeal confirmed that the determination of when a potential plaintiff has sufficient material facts on which a plausible inference of liability on the defendant’s part can be drawn “is not to be conflated with the question of the discovery of the merits of the potential action.”
Linda Gorton was diagnosed with terminal lung cancer in the spring of 2013. She passed away in April 2014. Ms. Gorton had experienced shortness of breath and chest pain. She was treated by the respondent doctor between 2008 and 2013. The doctor ordered a chest x-ray in late 2008. No anomalies were discovered. No other chest x-rays were requisitioned until May 2013. It was the x-ray of May 2013 that led to the cancer diagnosis. By statement of claim issued on April 11, 2016, the appellants commenced an action against the respondent doctor.
The appellants took the position that the limitation period did not start to run until they obtained expert reports on the standard of care and causation in August and December 2015, respectively. The motion judge held that the appellants’ claim was discoverable no later than February 6, 2014 when they met with a medical malpractice lawyer. By that date, the appellants had obtained the complete medical records of Ms. Gorton and expressed concern about whether an earlier x-ray might have led to a better outcome. The action was summarily dismissed as statute barred.
The Court of Appeal saw no reason to interfere with the motion judge’s decision, which recognized that the Limitations Act “does not distinguish between meritorious and non-meritorious claims.” The appellants had actual knowledge of the potential claim against the respondent doctor on February 6, 2014. The claim issued on April 11, 2016 was therefore out of time.
Andrews is a warning that potential plaintiffs should not wait to receive expert reports before commencing an action in the face of a plausible inference that they have a potential negligence claim.