





CITATION:
Macksoud
v. Carroll, 2011 ONCA 108



DATE:  20110209



DOCKET: C52517



COURT OF APPEAL FOR ONTARIO



Goudge, Feldman and Watt JJ.A.



BETWEEN



Kaden

Macksoud
, by his Litigation Guardian Alice
Macksoud
, Alice
Macksoud
and Christopher
Macksoud





Plaintiffs (Appellants)



and



Dr. Bryan
          William Carroll, Dr. Bruce
Devall
, Dr. Osborne, Leamington
          District Memorial Hospital, Jill
Kalapos
and Cecile
Foulon




Defendants (Respondents)



Lucy Lee and Kim Newman, for the appellants



Carolyn
Brandow
and Fred
Tranquilli
, for Dr.
Bacheyie



Emily R.
McKernan
and Deborah
Berlach
, for K. Jones and Ian Foote



Heard: January 20, 2011



On appeal from the order of Justice Peter B.
Hockin
of the Superior Court of Justice, dated July 7,
          2010.



Feldman J.A.:

[1]

The appellant, Alice
Macksoud
,
    is the mother and the litigation guardian of the infant plaintiff
Kaden

Macksoud
, who suffered
    severe brain injury at birth. As a result, the appellants brought a timely
    action for damages against a number of health practitioners.

[2]

Shortly before the action was to go to trial, the
    appellants were granted an adjournment in order to move to add claims against a
    number of additional defendants who were involved in the infants postnatal
    care, and whose potential liability had just been made known to the appellants.
    The motion to add the new defendants was, however, dismissed on the basis that
    the claims against them were statute barred.

[3]

For the reasons set out below, I would allow the appeal
    from that order in respect of the claims of the infant plaintiff and the
    derivative claims of the adult plaintiffs
[1]
.

Facts

[4]

The infant was born on May 15, 2001 at the

Leamington
District
Memorial
Hospital. As a result of
    the problems that occurred at birth and observations of the infant following
    his birth, on May 17, 2001 he was transferred by ambulance to the neonatal
    intensive care unit at Hotel-
Dieu
Grace Hospital in
    Windsor where he spent until May 30, 2001 in post-natal care.

[5]

Shortly after being retained by the appellants in
    February, 2002, counsel requested the full records from the London Health
    Sciences Centre, the Leamington District Memorial Hospital and the Hotel-
Dieu
Grace Hospital, and received all of the records
    between March and June of 2002. Counsel issued the claim against the original
    defendants in May 2002.

[6]

Counsel consulted with a specialist in neonatology, Dr.
Marrin
, in March, 2003. However, counsel deposed that
    nothing discussed with Dr.
Marrin
alerted him or the
    litigation guardian to any claims against the proposed new defendants.

[7]

Counsel retained another specialist in neonatal care,
    Dr. Reid, described as the plaintiffs primary expert, in March 2007. In a
    conversation in October, 2009, Dr. Reid advised counsel for the first time that
    he had concerns with the care the infant received while being transferred to
    Hotel-
Dieu
Grace Hospital and while in that hospital.
    Dr. Reid provided a report detailing his concerns in December, 2009, and based
    on that report, the motion to adjourn the trial, which was granted, and the
    motion to add the proposed additional defendants were brought.

[8]

In his affidavits filed on the motion, counsel took the
    position that he could not have known about the claims against the proposed new
    defendants until his conversation with Dr. Reid in October, 2009 and that he
    was not in a position to appropriately amend the statement of claim until he
    had received Dr. Reids report of December 7, 2009.

The reasons of the motion judge

[9]

The motion judge described the positions that the
    parties took before him. The plaintiffs position was that the claims were
    discovered or discoverable before January 1, 2004; therefore, under the transition
    provisions of the new
Limitations Act,
    2002
, S.O. 2002, c. 24, Sch. B, the former limitation period applied, and
    for an infant plaintiff, that period was suspended for the period of disability
    of the infant, and had not yet passed.
[2]
Therefore, the new proposed claims were not
    statute barred. The plaintiffs argued that this courts decision in
St. Jean (Litigation Guardian of) v. Cheung
(2008), 94 O.R. (3d) 359 (C.A.) was directly applicable. In that case, the
    court held that claims against hospitals and health practitioners were
    discoverable when the hospital records were obtained.

[10]

The defendants submitted that the new
Limitations Act, 2002
applied, that
    based on the evidence of appellants counsel the proposed new claims were not
    discoverable before January 1 , 2004, but that the two year limitation period applicable
    as of that date had passed, since the proposed claims were discovered or
    discoverable more than two years before the plaintiffs motion.

[11]

The motion judge applied s. 24(5) of the
Limitations Act, 2002
, part of the
    transition provisions of the new Act. Section 24(2) provides that the transition
    section applies where the act or omission occurred before January 1, 2004 and
    no proceeding against the defendant was commenced before that date. Subsection
    (5) applies if two further conditions are met: (1) the former limitation period
    did not expire before January 1, 2004, and (2) a limitation period under
    the new Act would apply if the impugned act or omission had occurred on or after
    that date. Once into s. 24(5), if the claim was discovered (or discoverable)
    before January 1, 2004, then the former limitation period applies; if not, then
    the new limitation period applies.

[12]

The disputed issue before the motion judge was whether
    the new claims were discoverable before January 1, 2004. The motion judge found
    that this is a question which is by and large fact based.  He then relied on counsels affidavits to
    conclude that there was nothing in the material that established that the
    claims against the proposed new defendants could have been discovered by the
    plaintiffs using due diligence before January 1, 2004. As a result, under s.
    24(5)1, the new two year limitation period applied and ran from January 1,
    2004.

[13]

The motion judge then turned to the evidence of what
    occurred after that date. He concluded that although counsel was only advised
    of the new claims by Dr. Reid in October, 2009, the motion was not timely.
    First, Dr. Reid should have been consulted before March, 2007. However, even
    taking the plaintiffs case at its highest, having retained Dr. Reid in March,
    2007 to advise regarding the childs care, it was incumbent on counsel (and
    therefore the litigation guardian) to obtain the doctors opinion within six
    months of retaining him. Therefore, the claim was discoverable at the latest,
    six months after March, 2007, and statute barred two years after that.

Issues

1)

Did the motion judge err in concluding that the claims
    were not discoverable before January 1, 2004?

2)

If not, did the motion judge err in concluding that
    after January 1, 2004, the  claims were
    discoverable by the litigation guardian within the two year limitation period?

3)

In the alternative, did the motion judge err in finding
    that the litigation guardian was retained in respect all possible claims and
    not just for the claims that had already been brought in the action?

Analysis

[14]

The relevant provisions of the
Limitations Act, 2002
are ss. 24(2), 24(5), 5(1)(a) and (b), and 8
    which provide:

24(2)
This
section applies
    to claims based on acts or omissions that took place before January 1, 2004 and
    in respect of which no proceeding has been commenced before that date.

...

(5) If the former limitation period did not expire
    before January 1, 2004 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 that
    date, the following rules apply:

1. If the claim was not discovered before
    January 1, 2004, this Act applies as if the act or omission had taken place on
    that date.

2. If the claim was discovered before January
    1, 2004, the former limitation period applies.

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).

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.

[15]

Also important is s. 47 of the former
Limitations Act
, R.S.O. 1990, c. L. 15, which
    provided:

47. Where
    a person entitled to bring an action mentioned in section 45 or 46 is at the
    time the cause of action accrues a minor, mental defective, mental incompetent
    or of unsound mind, 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.

[16]

The motion judge was correct in focusing on the
    application of the transition provision of the
Limitations Act, 2002
. Section 24(2) provides that the transition
    provision applies when the event that gives rise to the claim occurred before
    January 1, 2004, and no proceeding was commenced before that date. Then s.
    24(5) applies if the court determines that the former limitation period did not
    expire before January 1, 2004 and if there is an applicable limitation period
    under the new Act that would apply if the claim were based on events that
    occurred on or after January 1, 2004.

[17]

The motion judge found that under the former Act (s.
    47), the period of limitation was suspended for infants and those with mental
    defects until they became of age and competent to sue. Therefore, the former
    limitation period had not expired. Also the new period of two years from the
    date of discovery would apply if the events had occurred after January 1, 2004.

[18]

The motion judge correctly concluded that the real
    issue before him, therefore, was to determine whether rule 1 or 2 of s. 24(5)
    applied and that depended on whether the claim was discovered or discoverable
    before January 1, 2004. If it was, then the former limitation period applied,
    which meant that the limitation period for commencing the infants claim
    remained suspended and the new proposed claims remained timely. If it was not
    discoverable before January 1, 2004, then the claim would run from that date
    for two years from when the claims were discoverable.

[19]

Having correctly identified the real issue, with
    respect to the trial judge, he erred in treating the issue as a question of
    fact to be determined based primarily on the evidence of counsel for the
    appellants of what he did and did not do, without considering s. 5(2) of the
Limitations Act, 2002,
which essentially
    codifies the test for determining when a claim was discoverable.

[20]

This very issue was addressed by this court in the
St. Jean
case, where the facts were very
    similar to those in this case. There the court found that the infants claim
    was effectively discovered in February, 2003, when the litigation guardian,
    through counsel, received the relevant hospital records, even though those
    records were apparently not reviewed until new counsel was retained in 2005.

[21]

The motion judge distinguished
St. Jean
on the basis that in that case, it was agreed that had the
    records been reviewed, the existence of the doctors that were sought to be
    added would have been known, whereas in this case, it was contended by the
    plaintiffs that although they had the hospital records in 2002, they could not
    know their significance in terms of potential claims until 2009, when Dr. Reid
    advised counsel of the errors he identified from the hospital records in the
    postnatal care of the infant both in transit from Leamington and at the Hotel-
Dieu
Grace Hospital.

[22]

In my view, the
    motion judge erred in his discoverability analysis by (1) limiting his
    assessment essentially to the evidence of counsel for the plaintiffs, (2)
    discounting the importance of the
St.
    Jean
decision, and (3) failing to consider, based on all the evidence of
    what occurred, on what day the litigation guardian (through counsel) first
    ought to have known
of 
the proposed new claims. The
    relevant considerations included:

·

The appellant infant was in the neonatal unit of
    Hotel-
Dieu
hospital from May 17 to May 30, 2001 and
    under the care of the physicians and staff there during that time;

·

Counsel obtained all of the hospital records in
    2002 including the records of the transport of the infant to the Hotel-
Dieu
hospital and the records from that hospital;

·

No expert reviewed the records before the
    statement of claim was issued;

·

Although counsel later consulted with Dr.
Marrin
, there is no evidence that Dr.
Marrin
reviewed all of the records or that Dr.
Marrin
was
    asked to advise whether those records disclosed any claims arising out of the
    care and treatment of the infant plaintiff;

·

Once Dr. Reid had reviewed the records, he
    identified the problems with the care during transport of the infant from
    Leamington to Windsor, and at the Hotel-
Dieu
hospital,
    that give rise to the claims against the proposed new defendants.

[23]

When all of
    these circumstances are considered, it is clear in my view, that had the
    appellants consulted an appropriate medical expert in a timely way to review
    the hospital records when they were received in 2002, that expert would have
    identified the proposed new claims from those records before January 1, 2004.

[24]

In this case, it appears that the claims were not
    necessarily discoverable just from a review of the records by a lay person as
    in
St. Jean
. However, a reasonable
    person acting as litigation guardian, and in this case, acting for herself as
    well, would retain  competent counsel
[3]
who is expected to take whatever are the necessary steps in a potentially
    complex medical malpractice case to identify all the potential defendants
    against whom claims may be made, within the relevant limitation period.

[25]

I have considered that in 2002 the limitation period
    for the infant was much longer than it later became under the new Act, and that
    it was therefore arguably not reasonable to expect counsel to proceed as
    quickly as is now necessary once a litigation guardian is appointed. However, the
Limitations Act, 2002
, although not
    effective until January 1, 2004, was assented to in December, 2002, and therefore
    the transition provisions were known to govern the future limitation
    consequences of potential claims that may have arisen by that time.

[26]

I conclude, therefore, that the motion judge erred in
    his approach to the issue of discoverability, and that on consideration of all
    the relevant evidence, the proposed new claims were discoverable, and
    therefore, discovered, before January 1, 2004. As a result, rule 2 of s. 24(5)
    applies, making the former limitation period applicable. That means that the
    new proposed claims are not statute barred.

[27]

Because of this conclusion on issue #1, it is not
    necessary to address the second or third issues. Nevertheless, I do want to
    observe in respect of the conclusion of the motion judge regarding Dr. Reids
retainer, that
the record does not suggest that Dr. Reid was
    engaged to advise the plaintiffs whether they had any further claims arising
    out of the birth and after-care of the infant beyond the claims in the existing
    statement of claim. If that was his mandate, then he should have been retained
    and asked to report within the limitation period. That may or may not require a
    report within six months, depending on the circumstances of each case. If that
    was not his retainer, so that there
were
no limitation
    issues expected to be addressed by him, then it is up to counsel to address
    timeliness with an expert. There is no six month rule.

Result

[28]

The appeal is
    allowed in respect of the proposed new claims by the infant plaintiff and the
    derivative claims of the adult plaintiffs. Costs of the appeal to the appellants
    fixed at $12,000 inclusive of disbursements and HST.


Signed:          K. Feldman
    J.A.

I agree S.
    T. Goudge J.A.

I agree
    David Watt J.A.



RELEASED: STG February 9, 2011





[1]
The
Family Law Act
claims brought by the
    adult plaintiffs are derivative claims, and as such, they are subject to the
    same limitation period that applies to the principal claim:  see
Smith
    Estate v. College of Physicians & Surgeons (Ontario)
(1998), 41 O.R.
    (3d) 481 (C.A.).



[2]

This position was not consistent
    with the assertion in counsels affidavits that the claims were not
    discoverable until he spoke to Dr. Reid.



[3]

I recognize the possibility of
    self-representation. In that event, the self-represented persons would have the
    same expectations regarding reasonable actions in the circumstances.


