



COURT OF APPEAL FOR ONTARIO

CITATION: Morrison v. Barzo, 2018 ONCA 979

DATE: 20181205

DOCKET: C64356

van Rensburg, Brown and Miller JJ.A.

BETWEEN

Jeffrey
    Morrison, Janet-Lynn Morrison, and the minors

Cassidy
    Morrison, Eve Morrison and Madeline Morrison,

by their Litigation
    Guardian Jeffrey Morrison

Plaintiffs (Appellants)

and

Michael Barzo D.C. and The Chiropractic Life
    Centre

Defendants

and

Cristina
    Edwards and Dr. Charles Murphy

Third Parties (Respondents)

Joseph Obagi and Elizabeth Quigley, for the appellants

Avi Sharabi, for the respondent, Cristina Edwards

Meredith Jones and Nada Nicola-Howorth, for the
    respondent, Charles Murphy

Andrew Faith and Eric Brousseau, for the respondent
    Susan Boulanger

Heard: April 16, 2018

On appeal from the judgment of Justice Anne Mullins of
    the Superior Court of Justice, dated August 29, 2017, with reasons reported at
    2017 ONSC 4919.

van Rensburg J.A.:

OVERVIEW

[1]

The appellants brought a motion to add defendants
    to a medical malpractice action. They appeal the dismissal of their motion.

[2]

Jeffrey Morrison was injured allegedly in the
    course of a chiropractic treatment. He and his family members started an action
    against the chiropractor, Dr. Michael Barzo. Two years later the appellants
    sought to add as defendants to the action, the three respondents, who are also
    health care providers who treated Mr. Morrison in the days following his
    original injury. The motion was dismissed on the basis that the limitation
    period had expired against the proposed defendants. For the reasons that follow,
    I would allow the appeal.

[3]

Briefly, in my view the motion judge applied the
    wrong test in dismissing the motion. First, she did not make findings of fact
    as to when the appellants knew of the matters listed in s. 5(1)(a) of the
Limitations Act, 2002
,

S.O. 2002, c. 24, Sch. B (the 
Limitations
    Act
) in relation to their claims against the respondents,
    or under s. 5(1)(b) as to when they ought reasonably to have known of such
    matters. She was required to make these findings on the evidentiary record
    before concluding that the appellants claim against the respondents had been discovered
    more than two years before the motion was brought and that the limitation
    period had already expired against the respondents.

[4]

Second, the motion judge pointed to the
    appellants failure to explain the steps they had taken to investigate the
    potential claims against the respondents, and concluded that the appellants had
    not discharged their burden to establish due diligence. While a plaintiffs due
    diligence is potentially relevant to the question under s. 5(1)(b) of the
Limitations
    Act
as to when a claim ought reasonably to have been
    discovered, the failure to take reasonable steps to investigate a claim is not
    a stand-alone or independent ground to find a claim out of time. The motion
    judge erred in dismissing the motion on this basis.

[5]

Applying the correct test, and on the evidence
    before the court at this stage, it is not clear that the appellants claims
    against any of the respondents ought reasonably to have been discovered by the
    appellants more than two years before they moved to join the respondents as
    defendants to the action.

[6]

I would therefore allow the appeal, grant leave
    to the appellants to add the respondents as defendants to the action, and
    permit the respondents to plead the expiry of a limitation period in their
    defence.

FACTS


[7]

The appellants started their action on June 24,
    2013, claiming that the defendant Dr. Barzo was negligent in his treatment of
    Mr. Morrison. The essence of the claim is that on June 23, 2011, during a
    chiropractic treatment, Dr. Barzo forcefully twisted Mr. Morrisons spine,
    causing a lumbar disc protrusion and
cauda equina
syndrome (CES). Mr. Morrison was diagnosed with CES on July 14,
    2011 and required emergency surgery the next day.

[8]

Dr. Barzos statement of defence was delivered
    on May 6, 2014. On May 13, 2014, he third partied two of the three respondents:
    Cristina Edwards, a registered massage therapist, and Charles Murphy, a family
    doctor. The third party claim asserts that Mr. Morrisons alleged lumbar disc
    injury and CES resulted from circumstances occurring subsequent to the June 28,
    2011 chiropractic treatment. It also asserts that both third parties were
    negligent in their treatment of Mr. Morrison between the date of the
    chiropractic treatment and the referral on July 14 for emergency surgery.

[9]

The third parties defended the main action and
    the third party claim. Examinations for discovery took place in May and June
    2015.

[10]

On May 11, 2016, and just less than two years after
    the third party claim was issued, the appellants moved to add as defendants to
    the action, Ms. Edwards, Dr. Murphy, as well as Susan Boulanger, a nurse
    practitioner in Dr. Murphys medical office. The draft amended statement of
    claim alleges that certain acts and omissions of the respondents between the
    date of the chiropractic treatment and when Mr. Morrison received emergency
    surgery were negligent. The allegations against Ms. Edwards and Dr. Murphy
    track the allegations set out in Dr. Barzos third party claim. The allegations
    against nurse-practitioner Ms. Boulanger are in essence that she neglected to
    respond in a timely way to Mr. Morrisons complaints with referrals and
    diagnostic tests.

[11]

The appellants motion was supported by an
    affidavit of their counsel, Ms. Oakley. The affidavit explained that it was not
    until certain information was provided at the examinations for discovery that
    she concluded that there were grounds to add the respondents as defendants. In
    fact, in June 2014, after receiving the third party claim, the appellants
    counsel had advised Dr. Murphys counsel that she did not believe that a claim
    against Dr. Murphy was appropriate.

[12]

The respondents counsel cross-examined Ms.
    Oakley and Mr. Morrison. At the conclusion of her cross-examination, Ms. Oakley
    provided three schedules setting out the new facts she had discovered in
    relation to each respondent at the time of the third parties examinations for
    discovery, which led her to believe that they ought to be added as defendants. Her
    counsel indicated that she was willing to answer questions about these documents,
    which were made lettered exhibits to the cross-examination. Examining counsel
    reserved their right to ask Ms. Oakley questions about the summaries; however,
    there was no further examination on this information. Ms. Oakley delivered an
    affidavit following her examination attaching the same documents. Although this
    procedure was irregular, in that Ms. Oakley ought to have included the schedules
    in her original affidavit before she was cross-examined, and she ought not,
    without leave, to have filed an affidavit after she had been cross-examined, it
    appears that all of this material was before the motion judge. No argument was
    made to this court that the schedules prepared by Ms. Oakley were inadmissible
    on the motion; indeed, they were relied on in argument.

[13]

For their part, the respondents did not file any
    evidence, other than an affidavit of counsel setting out certain communications
    between Ms. Oakley, Dr. Barzos counsel, and Dr. Murphys counsel, before and
    at the time the third party claim was issued. In these, Ms. Oakley expressed
    her belief that there was no basis for a claim against Dr. Murphy. The clinical
    notes and records of the respondents, which had been received by the
    appellants counsel at the latest by October 2013, were included in the record
    that was before the motion judge.

THE MOTION JUDGES
    DECISION

[14]

The motion judge noted that the appellants
    position was that they were unaware of the respondents negligent acts and
    omissions until the spring of 2015, when the third parties were examined for
    discovery. She set out their position that it was only at that point that the
    appellants discovered that:

(a)

Ms. Edwards had
    realized Mr. Morrisons symptoms might indicate a spinal nerve impingement or
    herniated disc, but she never alerted Mr. Morrison or his other health care
    providers to this fact;

(b)

Ms.
    Boulanger ordered Mr. Morrisons x-rays but failed to call for them on an
    urgent basis or to follow up, and she gave Mr. Morrison inadequate discharge
    instructions; and

(c)

Dr.
    Murphy provided consultation in Mr. Morrisons care on July 6, 2011. He failed
    to perform a rectal exam and to follow up in a timely manner when he became
    aware Mr. Morrison exhibited symptoms indicating CES.

[15]

The motion judge did not review or assess the
    evidence about when the appellants knew or ought to have known the facts that
    were material to their claims of negligence against each respondent. She
    concluded, however, at para. 35 of her reasons, that the appellants must
    reasonably be taken to know whether the proposed defendants received and acted
    upon Jeffrey Morrisons complaints of back pain between June 28 and July 15,
    2011. She noted that Mr. Morrison had met with and was treated by each, and
    that he was aware of his alleged injury and its consequences immediately.

[16]

The motion judge stated, at para. 36, that the
    joinder of parties outside of a limitation period gives rise to a presumption
    of prejudice that the plaintiffs have the burden of displacing with evidence of
    some diligence in discovering their claims. She also noted, at para. 39, that
    the plaintiffs had the burden to lead evidence of the steps they took to
    discover the necessary information.

[17]

Referring to the proposed amendments to the
    statement of claim, the motion judge observed that the allegations of
    negligence were virtually identical against all parties, and that there was
    little evidence of the moving parties having proactively taken steps to
    discover their claims against the proposed defendants. She concluded, at para.
    41:

I find as fact that the plaintiffs were as
    reasonably capable of discovering any wrongful nature of the proposed
    defendants acts and their nexus to Mr. Morrisons alleged injury at virtually
    the same time as they discovered their alleged claims against Dr. Barzo. The
    plaintiffs have not discharged the burden of having exercised reasonable
    diligence in the discovery of facts necessary to found a pleading of medical
    malpractice in these circumstances.

[18]

Accordingly, the motion judge dismissed the motion
    to add the respondents as defendants to the action.

POSITIONS OF THE
    PARTIES

[19]

The appellants contend that the motion judge
    erred in two ways. First, she failed to make any finding on the evidence as to
    when they ought reasonably to have known about their claims against the
    respondents (except to say that it was at the same time as they knew about
    their claims against Dr. Barzo). The appellants say that the evidence does not
    support a finding that they ought reasonably to have known that the three
    respondents caused or contributed to Mr. Morrisons injuries more than two
    years before they sought to add them as defendants to the action. Second, the
    appellants assert that the motion judge erred in dismissing their motion based
    on her conclusion that they did not demonstrate due diligence.

[20]

Although there are differences between the
    positions of the respondents on appeal, essentially they all assert that the
    motion judges dismissal of the motion was properly based on her finding, which
    was supported by the evidence, that the appellants ought reasonably to have
    discovered their claims against the respondents at the same time as they
    discovered their claims against the chiropractor. The respondents Ms. Boulanger
    and Ms. Edwards continue to assert that the motion judge properly took into
    consideration the appellants failure to adduce evidence of the steps they took
    to investigate the respondents potential negligence, and they contend that
    lack of due diligence is a proper factor in motions of this sort, to rebut the
    presumption of prejudice. Alternatively, if the motion judge erred in the
    test she applied, the respondents ask that this court, applying the correct
    test, uphold the decision dismissing the motion. They rely on the information
    contained in the clinical records, as well as the proposed amended pleading,
    and assert that the allegations against the respondents contain no new material
    facts, and that substantially all of what is alleged ought to have been known
    to the appellants around the time Mr. Morrison was diagnosed with CES.

ANALYSIS

[21]

As I will explain, the motion judge erred when
    she diverged from the clear scheme of the
Limitations
    Act
to decide whether the limitation period had
    expired.

[22]

First, the motion judge proceeded on the basis
    that there was a presumption of prejudice, when a party is added to
    litigation after the expiry of a limitation period, that the appellants had to
    overcome by establishing due diligence. This is inconsistent with the framework
    under the
Limitations Act
,

where due diligence is now part of
    the determination of a claims discoverability under s. 5(1)(b), and s. 21
    prohibits the addition of a party to an action where a limitation period has
    expired, whether or not there is prejudice to the defendant.

[23]

Second, the motion judge did not make findings
    of fact as to when the appellants actually discovered the claim or when they ought
    reasonably to have done so (other than to say that it was at virtually the
    same time as they discovered their claims against Dr. Barzo).

[24]

Third, the motion judge made her determination
    that the limitation period had already expired in reliance on the broad
    allegations contained in the draft amended statement of claim, and without
    having identified and considered the appellants core claims against the
    respondents, and the evidence in relation to when such claims were or ought
    reasonably to have been discovered. The motion judge, pointing only to Mr.
    Morrisons treatment dates, concluded that the claims against the respondents
    ought to have been discovered around the same time the appellants discovered
    their claims against Dr. Barzo. When the claims against the respondents are
    properly considered, however, the evidence on the motion does not support the
    conclusion that the appellants ought reasonably to have discovered all of the
    respondents potentially negligent acts or omissions before the third party
    examinations for discovery.

(1)

Where a limitation period may have expired, the
Limitations
    Act
establishes the test for adding parties

[25]

Subrule 5.04(2) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 provides for the
    addition of parties during a proceeding:

At any stage of a proceeding the court may by
    order add, delete or substitute a party or correct the name of a party
    incorrectly named, on such terms as are just, unless prejudice would result
    that could not be compensated for by costs or an adjournment.

[26]

At the same time, s. 21(1) of the
Limitations
    Act
prohibits the addition of a party to a proceeding
    where the limitation period has expired:

If
    a limitation period in respect of a claim against a person has expired, the
    claim shall not be pursued by adding the person as a party to any existing
    proceeding.

[27]

In
Arcari v. Dawson
, 2016 ONCA 715, 134 O.R. (3d) 36, leave to appeal to SCC refused, [2016]
    S.C.C.A. No. 522, at para. 7, this court observed that the effect of s. 21(1)
    is that the clear expiration of a limitation period is an absolute bar to the
    addition of a party to an already existing action.

[28]

Under the current
Limitations Act
, the date of discovery is key to assessing whether the limitation
    period in respect of a claim has expired. Sections 4 and 5 provide as follows:

4.

Unless
    this Act provides otherwise, a proceeding shall not be commenced in respect of
    a claim after the second anniversary of the day on which the claim was
    discovered.

5.

(1)

A claim is discovered on the earlier of,

(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).

(2) A person with a claim shall be presumed to
    have known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is
    proved.

[29]

Where there is a question as to whether claims
    covered by the basic two-year limitation period are statute-barred, such that
    parties cannot be added pursuant to s. 21(1) of the
Limitations Act
, the court must make a finding as to when the plaintiff first knew
    the elements of the claim listed in s. 5(1)(a). If the date of actual
    discovery, as determined by the court, would bring the claim within the
    limitation period, and the proposed defendant relies on reasonable discoverability
    to contend the claim was brought outside the prescription period, the court
    must go on to determine under s. 5(1)(b) when a reasonable person with the
    abilities and in the circumstances of [the plaintiff] first ought to have known
    of the matters referred to in clause (a). While a plaintiffs due diligence is
    relevant to the finding under 5(1)(b), the absence of due diligence is not a
    separate basis for dismissing a claim as statute-barred: see
Fennell
    v. Deol
,
2016 ONCA 249, 97 M.V.R. (6th) 1, at
    paras. 18 and 24;
Galota v. Festival Hall Developments Ltd
., 2016
    ONCA 585, 133 O.R. (3d) 35, at para. 23.
This is the
    case whether expiry of the limitation period is at issue in a motion for
    summary judgment or in a motion to add a defendant:
Mancinelli v.
    Royal Bank of Canada
, 2018 ONCA 544, 24 C.P.C. (8th) 1, at
    para. 30.


[30]

Reasonable discoverability of a claim under s.
    5(1)(b) that precludes adding a party contrary to s. 21(1) requires an
    evidentiary foundation. The court must be satisfied that a reasonable person in
    the plaintiffs circumstances ought to have discovered the claim, and the date
    of such reasonable discovery must be determined. It is not sufficient for the
    court to say that the claim was discoverable before the expiry of the limitation
    period, without explaining why. It may be that the date of reasonable
    discoverability can only be determined at a later stage in the proceedings, at
    trial or on a summary judgment motion. In such a case, the motion to add the
    defendant should be granted, with leave for the defendant to plead a limitation
    defence:
Mancinelli
, at paras. 31 and 34.

[31]

The evidentiary burden on a plaintiff seeking to
    add a defendant to an action after the apparent expiry of a limitation period
    is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that
    he or she knew of the matters referred to in s. 5(1)(a) on the day the act or
    omission on which the claim is based took place, by leading evidence as to the
    date the claim was actually discovered (which evidence can be tested and
    contradicted by the proposed defendant). The presumption is displaced by the
    courts finding as to when the plaintiff subjectively knew he had a claim
    against the defendants:
Mancinelli
, at para.
    18. To overcome the presumption, the plaintiff needs to prove only that the
    actual discovery of the claim was not on the date the events giving rise to the
    claim took place. It is therefore wrong to say that a plaintiff has an onus to
    show due diligence to rebut the presumption under s. 5(2):
Fennell
, at para. 26.

[32]

Second, the plaintiff must offer a reasonable
    explanation on proper evidence as to why the claim could not have been
    discovered through the exercise of reasonable diligence. The evidentiary
    threshold here is low, and the plaintiffs explanation should be given a
    generous reading, and considered in the context of the claim:
Mancinelli
, at paras. 20 and 24.

(2)

The application of the test requires that the
    claims be defined and the evidence considered

[33]

Section 5(1)(a) of the
Limitations
    Act

sets out the elements that must be known to a
    plaintiff before a claim is discovered. The issue here is not (as in many other
    cases) the identification of the respondents involvement in the matters at
    issue. Rather, the discoverability issue in this case relates to when the
    appellants discovered the facts relating to the respondents negligence in Mr.
    Morrisons care; more specifically, when, under s. 5(1)(a)(ii) and (iii), the
    appellants knew or ought reasonably to have known that an act or omission of
    each respondent caused or contributed to Mr. Morrisons injuries.

[34]

In a medical malpractice action, a claim is
    discovered when the claimant knows the facts that form the core of [the
    plaintiffs] claim of substandard medical treatment:
Lawless v. Anderson
, 2011 ONCA 102, 81
    C.C.L.T. (3d) 220, at para. 26. As M.G.J. Quigley J. observed in
Thompson v. Sehgal
, 2012 ONSC 3258, at
    para. 42:

T
he material facts of which the
    plaintiff must be aware before the limitation period can commence to run are
    those which would constitute negligence. Negligence itself is composed not only
    of the breach of an applicable standard of care, but also the causation to give
    rise to a cause of action.

[35]

As I will explain, in my view, the motion judge
    erred in failing to identify the key difference between the appellants claims
    against Dr. Barzo and their claims against the respondents. The claim against
    Dr. Barzo is that he caused an injury during a chiropractic treatment. The core
    of the claim against all three respondents, by contrast, is that, after this
    traumatic injury had already occurred, and between June 28, 2011 and July 15,
    2011 when Mr. Morrison had emergency surgery, they
contributed to

or
exacerbated

Mr. Morrisons
    injuries in their approach to treating him and/or by failing to take more
    immediate action to respond to the original traumatic injury. And if it turns
    out, as the appellants assert, that the obligation to take certain immediate action
    only arose if and when the respondents suspected CES, or in the case of Ms.
    Edwards, a spinal nerve injury, then this affects the date of reasonable
    discovery.

[36]

I turn to examine the specific allegations
    against each respondent, and the evidence that was before the motion judge.

(i)

The claim against Dr. Murphy

[37]

Dr.
    Murphys involvement in Mr. Morrisons care was at the medical clinic where
    both Ms. Boulanger and Dr. Murphy worked. The records of the clinic indicate
    that Ms. Boulanger provided treatment to Mr. Morrison on June 28, 2011 and July
    6, 2011. A note dated July 6, 2011 by Ms. Boulanger states that she would consult
    Dr. Murphy regarding a prescription for narcotics and x-rays. A lumbar spine
    x-ray was ordered the same day. There is also a note on the same day from Ms. Boulanger
    saying To Emerg if pain gets unbearable. On July 11, 2011, Dr. Murphy saw Mr.
    Morrison and ordered an urgent CT scan. After receipt of the CT scan, he
    advised Mr. Morrison to urgently attend to see a neurosurgical specialist.

[38]

On
    his examination for discovery, Dr. Murphy recounted having spoken with Ms.
    Boulanger on July 6 about Mr. Morrisons symptoms, which included a positive
    neurological sign, and that, as a result he ordered an urgent CT scan. Dr.
    Murphy also recalled that he had ordered an x-ray as a preliminary step in
    order to secure a CT scan appointment to rule in or out the top two conditions
    that he was investigating (one of which was CES). He agreed that it was
    important to rule out nerve impingement, nerve involvement, or CES as quickly
    as possible.

[39]

The
    appellants contend that, prior to the examinations for discovery, they were
    unaware that Dr. Murphy had been involved in Mr. Morrisons care other than in
    consultation with Ms. Boulanger, or that CES was part of Dr. Murphys
    differential diagnosis. It was only when they learned these facts that they
    could conclude that Dr. Murphy ought to have undertaken a rectal examination.
    According to the appellants, the fact that a rectal examination was not done is
    significant only in conjunction with the knowledge that Dr. Murphy was actively
    looking to rule in or out CES.

(ii)

The claim against Susan Boulanger

[40]

Susan
    Boulanger, a nurse practitioner, was responsible for Mr. Morrisons care on
    June 28, 2011 and July 6, 2011. The records indicate that she recorded his
    symptoms, assessed his lower back pain, ordered an x-ray, and provided
    prescriptions for medication and physiotherapy.

[41]

The
    core allegations against Ms. Boulanger are that she did not order x-rays on a
    stat or urgent basis, that she did not follow up on the x-rays within 24 to
    48 hours, and that she gave the wrong discharge instructions to Mr. Morrison,
    instructing him to go to the hospital only if his pain became unbearable.

[42]

Ms. Boulangers counsel contends that all of the new facts
    allegedly discovered from Dr. Murphys examination for discovery were contained
    in the clinical notes and records that were in appellants counsels hands at
    the latest by October 2013.
The fact that Ms. Boulanger was
    the person who ordered the x-ray but not urgently is apparent in the clinical
    notes and records. It was also clear from the records that no one followed up
    or received the x-ray results within 24 to 48 hours. It was also clear what
    discharge instructions were given.

[43]

As
    is the case with Dr. Murphy, the important information the appellants say they
    only obtained at the examinations for discovery was that both Dr. Murphy and
    Ms. Boulanger were considering CES as part of their differential diagnosis.
    This fact was not recorded in the clinical notes, and this is what made their
    subsequent delay in investigating the condition negligent. It was only revealed
    in Dr. Murphys examination for discovery that Mr. Morrisons x-ray was ordered
    as a stepping stone for a CT scan or MRI which was urgently required to rule
    out or in CES. As such, it was only in that context that Ms. Boulangers
    failure to mark the x-rays as urgent or to follow up on the x-rays demonstrated
    negligence. The appellants also contend that, without Dr. Murphys evidence,
    they would not have known that there was a problem with Ms. Boulangers
    discharge instructions  and that she had not followed Dr. Murphys directions
    to instruct Mr. Morrison to go to the hospital if the pain got worse or was not
    controlled by pain medication.

[44]

In oral argument on the appeal, Ms. Boulangers
    counsel argued that there was no evidence that Ms. Boulanger was considering a
    potential diagnosis of CES, which is the context in which the appellants say
    that her failure to order the x-rays stat and to follow up on the results
    were negligent. This is incorrect. In his examination for discovery, Dr. Murphy
    testified that both he and Ms. Boulanger were proceeding on the assumption that
    the cause of Mr. Morrisons back pain might have been CES.

(iii)

The claim against Cristina Edwards

[45]

Cristina
    Edwards was a massage therapist who treated Mr. Morrison on two occasions: June
    28 and June 30, 2011. Her treatment notes indicated only the dates of treatment
    and that the treatments provided Mr. Morrison with temporary relief.

[46]

The
    appellants point to the fact that, at her examination for discovery, Ms.
    Edwards testified that she modified her massage treatments on the basis that
    she thought that Mr. Morrison might have a spinal nerve impingement. She also
    noticed that his gait was altered. She testified that she never told Mr.
    Morrison that she was considering the possibility that he had sustained a
    serious or significant nerve injury in the spine, nor did she record these
    observations in her notes.

(iv)

The core of the allegations against all three
    respondents

[47]

The details of each respondents involvement in
    Mr. Morrisons treatment make clear that the nature of the claims against all
    the respondents differs from the claim against Dr. Barzo. That is, in relation
    to all of the respondents, but not Dr. Barzo, it is alleged that they may only
    have failed to meet the standard of care by failing to take immediate action
once
    CES and/or spinal nerve injury was suspected
.

[48]

At the root of the appellants argument about
    discoverability of the claims against the respondents in this case is that CES
    is a relatively rare diagnosis. The respondents do not suggest otherwise. The
    appellants contend that it was only when it became apparent that Dr. Murphy and
    Ms. Boulanger were actually considering and attempting to rule out CES that
    their failure to conduct the necessary investigations on an urgent basis
    revealed negligence. Similarly, it is alleged that Ms. Edwards treatment would
    only have been negligent if she was considering the possibility that Mr.
    Morrison had sustained a serious spine injury. That the respondents Dr. Murphy
    and Ms. Boulanger actually turned their minds to the possibility of CES, and
    that Ms. Edwards suspected a spinal nerve injury, is the new information that the
    appellants assert was revealed during the examinations for discovery.

(3)

The application of the test

(i)


Section 5(1)(a): when the appellants knew of
    their claims against the respondents

[49]

After identifying the core claim or claims in
    question, s. 5(1)(a) requires a finding as to when the claim was actually
    discovered.

[50]

The appellants knew of

Mr. Morrisons primary injury, allegedly caused by the chiropractic
    treatment, at the time that Mr. Morrison was diagnosed with CES. They knew that
    Ms. Edwards and Ms. Boulanger were involved in Mr. Morrisons treatment shortly
    after the chiropractic treatment, but assert that they did not know of Dr.
    Murphys consultative involvement. They also assert that they did not know that
    the respondents contributed to the injury until they discovered that the
    respondents suspected CES but took no urgent action.

[51]

I agree with the appellants that there is no
    evidence on this record that they had any actual knowledge, prior to 2015, that
    the treatment provided to Mr. Morrison by the respondents caused or contributed
    to his injuries. To the contrary, the appellants position is that Mr.
    Morrisons chiropractic treatment on June 24, 2013 caused a traumatic injury
    that led to his diagnosis of CES. The only information relevant to the
    respondents involvement in his care that was available to the appellants, prior
    to the examinations for discovery, was in their clinical notes. These notes,
    however, contain no indication that any of the respondents suspected that Mr.
    Morrison might be suffering from a serious condition or traumatic injury that
    required urgent care.

[52]

It was only at the examinations for discovery that
    the appellants became aware of Dr. Murphys involvement  consulting behind the
    scenes with Ms. Boulanger  prior to July 11, 2011. It was also at the
    examinations for discovery that the appellants first discovered that Dr. Murphy
    and Ms. Boulanger were working with two differential diagnoses, one of which
    was CES.

[53]

Similarly,
at her examination for discovery, Ms. Edwards
    testified that she never told Mr. Morrison that she was considering the
    possibility that he had sustained a serious or significant nerve injury in the
    spine, and she did not record these observations in her notes.

[54]

In my view, the record before us is sufficient
    to conclude that the appellants did not have actual knowledge of the elements
    of their claims against the respondents until they learned, during the
    examinations for discovery, that all three respondents had suspected spinal
    injury at the time of treatment.

(ii)

Section 5(1)(b): when a reasonable person ought
    to have known of the claim against the respondents

[55]

The key question in this case remains, then, on
    what day 
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). Unfortunately, this question was never directly
    answered by the motion judge.

[56]

Instead, the motion judge stated, at para. 40,
    that the pleadings do not discernibly relate or rely upon facts the plaintiffs
    say they discovered at Ms. Edwards and Dr. Murphys discoveries. Rather, the
    pleadings rely only on the defendants identities, their medical qualifications,
    and the fact they treated Mr. Morrison for his back complaints.

[57]

The motion judge also asserted, at para. 40,
    that [t]he allegations of negligence are virtually identical against all of
    the parties and that [t]here is little evidence of the plaintiffs proactively
    taking any steps to discover any claims against these proposed defendants.

[58]

This analysis unfortunately overlooks the
    important difference between the claims against the respondents and the claim
    against Dr. Barzo, as I have outlined above.

[59]

And while due diligence is relevant to when a
    reasonable person ought to have discovered a claim  demonstrating due
    diligence as well as no actual knowledge of all elements of the claim can
    certainly provide strong evidence that a reasonable person could not have
    discovered the claim sooner  the absence of due diligence does not necessarily
    establish that the two-year period has run out.

[60]

Instead, the motion judge was required, after
    clearly defining the nature of the claims against the respondents on the
    evidence, and after finding no actual knowledge of the claims, to make a
    specific finding of fact as to when a reasonable person with the abilities and
    in the circumstances of the appellants first ought to have known of the
    matters referred to in clause (a).

[61]

As
Mancinelli
states at para. 31, where s. 5(1)(b) is in issue in a motion to add a
    defendant, the motion should not be dismissed in the absence of evidence that
    the plaintiff could have obtained the requisite information with due diligence 
    such that there is no issue of credibility or fact warranting a trial or
    summary judgment motion.

[62]

Such evidence was absent here. There was no
    evidence to suggest how the potentially relevant information about suspected
    diagnoses could reasonably have been obtained before it was in fact discovered.

[63]

Finally, the respondents argue that, at the
    latest, the appellants claims against them were reasonably discoverable when
    the appellants were served with Dr. Barzos third party claim, which set out
    specific allegations against Dr. Murphy and Ms. Edwards. The respondents
    contend that the appellants ought reasonably to have discovered their claims
    against the respondents when they obtained this information.

[64]

If this is the case, however, and the claims
    against the respondents were reasonably discoverable at or around the time the
    third party claim was issued, the claims are not statute-barred. The third
    party claim was issued on May 13, 2014 and the motion to add defendants was
    brought on May 11, 2016, which is still within the applicable two-year limitation
    period.

[65]

Accordingly, the appropriate disposition is to
    permit the addition of all three respondents to the action, with leave for the
    respondents to plead the expiry of the limitation period in their defence.

CONCLUSION
    AND DISPOSITION

[66]

For these reasons, I would allow the appeal. I
    would set aside the order of the motion judge, and order that the appellants
    are permitted to join the respondents as defendants to the action, and that the
    respondents are at liberty to plead the expiry of the limitation period as a defence.
    I would award the appellants costs of the appeal fixed at $23,000, and of the
    motion in the Superior Court fixed at $20,000, both amounts inclusive of
    disbursements and HST, and payable jointly and severally by the respondents.

Released: December 5, 2018

K. van Rensburg
    J.A.

I agree David Brown
    J.A.

I agree B.W. Miller
    J.A.


