



COURT OF APPEAL FOR ONTARIO

CITATION: Andrews v. Pattison,
    2022 ONCA 267

DATE: 20220401

DOCKET: C69720

Doherty,
    Huscroft and Harvison Young JJ.A.

BETWEEN

Amanda
    Jane Andrews and Keri Ann Baker, personally and as Estate Trustees of the
    Estate of Linda Gordon, Willow May Baker, Tobin Bryon Baker and Violet Grace
    Baker, all by their Litigation Guardian Jeffrey Robert Baker, Sara Nicole
    Andrews and Emily Lyn Andrews

Plaintiffs (Appellants)

and

Dr. Leslie Pattison

Defendant (Respondent)

Bronwyn M. Martin, B. Robin Moodie and
    Joni Dobson, for the appellants

Andrea H. Plumb and John A. M.
    Petrella, for the respondent

Heard: March 28, 2021 by video conference

On
    appeal from the judgment of Justice John R. McCarthy of the Superior Court of
    Justice, dated July 5, 2021, with reasons at 2021 ONSC 4757.

REASONS FOR DECISION

[1]

The appellants appeal from a summary judgment
    dismissing their action on the basis that their claim was statute barred. The
    action arose from allegations of medical malpractice. The circumstances may be
    briefly summarized. Ms. Linda Gorton was diagnosed with terminal lung cancer in
    late spring 2013, and unfortunately died in April 2014. She had received
    medical attention and treatment from the respondent doctor between 2008 and
    2013, having complained of shortness of breath and chest pain. The respondent
    ordered a chest x-ray late in 2008 but discovered no anomalies. No further chest
    x-rays were ordered until May 2013. It was a result of that x-ray that the
    cancer was diagnosed. The appellants issued their statement of claim on April
    11, 2016.

[2]

The appeal rests on the argument that the motion
    judge erred in conducting his analysis under section 5(1)(a) of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, rather than s. 5(1)(b). Section
    5(1)(b) addresses discoverability, i.e., when a person ought to have known
    than an action could lie. Section 5(1)(a) addresses actual knowledge.

[3]

The appellants submit that the limitation period
    did not begin to run until they received expert reports on the standard of care
    and causation in August and December 2015 respectively.  The appellants also
    submit that the motion judge fell into palpable and overriding error in finding
    that the deceased and her family had actual knowledge of the facts upon which
    the allegations of negligence could be based as early as May 30, 2013, the date
    of the deceaseds diagnosis, and no later than February 6,2014 when they met
    with a medical malpractice lawyer. At that time, the lawyers explained the
    factor necessary to establish a breach of a standard of care and causation. 
    The plaintiffs subsequently ordered expert reports on the standard of care and
    causation which were received in August and December 2015 respectively.  Both
    reports supported the appellants position that they had a viable cause of
    action.

[4]

We do not agree with the appellants submission
    that the limitation period did not begin to run until they had received the
    expert reports.

[5]

The parties agree on the test to be applied. As
    set out by the Supreme Court of Canada at para. 48 of
Grant Thornton LLP v.
    New Brunswick
, 2021 SCC 31, 461 D.L.R. (4th) 613, a claim is discovered
    when a plaintiff has knowledge, actual or constructive, of the material facts
    on which a plausible inference of liability on the defendants part can be drawn.
    A plausible inference lies along a spectrum, ranging from mere suspicion to
    certainty: at para. 46.  The parties also agree that the determination of where
    a particular case falls on this spectrum is a fact-based inquiry:
Lawless
    v. Anderson
, 2011 ONCA 102,

276 O.A.C. 75, at para. 23.

[6]

The appellants argue that the trial judge fell
    into palpable and overriding error in applying the test to these facts,
    particularly in failing to find that the receipt of expert reports was
    necessary to the appellants having sufficient material facts to satisfy the
    plausible inference that they had a potential negligence claim.

[7]

We disagree. The motion judge set out the
    evidence before him upon which he based his conclusion. The material facts upon
    which he relied include the undisputed facts that:

·

the deceased had been under the defendants care
    throughout the entire period between 2008 and 2013, during which she had
    complained repeatedly about shortness of breath, but the defendant had not
    ordered a chest x-ray between 2009 and May, 2013;

·

this x-ray lead immediately to the biopsy which resulted
    in the diagnosis of advanced, terminal lung cancer shortly thereafter;

·

the deceased and her family were immediately
    concerned about the fact that a chest x-ray had not been previously ordered and
    whether an earlier x-ray might have led to a different outcome;

·

after obtaining complete medical records, by the
    fall of 2013, they sought legal advice almost immediately, and through to her
    death in April 2014, the deceased indicated to her family that she wished to
    pursue the matter; and

·

the expert reports on standard of care and
    causation, received in August and December,2015, did not disclose any
    additional material facts.

[8]

The motion judge specifically addressed and
    rejected the appellants argument that the potential negligence claim was not
    discoverable until the receipt of the expert reports. In particular, he noted
    that the determination of when a potential plaintiff has sufficient material
    facts is not to be conflated with the question of the discovery of the merits
    of the potential action, stating that the Act does not distinguish between
    meritorious and non-meritorious claims.  This was a fact-based inquiry as the
    motion judge recognized in citing paras. 22-23 of
Lawless
.

[9]

We see no reason to interfere with the motion
    judges findings that the latest date upon which the action was discoverable
    was the date of the meeting with the medical malpractice lawyer on February 6, 2014
    and was therefore out of time when the claim was issued on April 11, 2016.

[10]

We also reject the appellants argument that
    they did not have knowledge, actual or otherwise, of the potential claim in May
    2013 as the respondent had told them that an earlier x-ray would not have
    affected the prognosis. The motion judge found that the deceased and her family
    intended to pursue the matter immediately following the deceaseds diagnosis
    until the time of her death. Accordingly, the appellants did not rely on the
    respondents representations. Further, the appellants point on this issue does
    not address the finding that in any event the appellants had actual knowledge
    no later than February 6, 2014. The constructive knowledge in s. 5(1)(b) can
    have no application to this case:
Dass v. Kay
, 2021 ONCA 565, at para.
    54.

[11]

The appeal is dismissed.  Costs of this appeal
    are payable by the appellants to the respondent in the amount, as agreed, of
    $15,000 within 30 days.

Doherty
    J.A.

Grant
    Huscroft J.A.

A.
    Harvison Young J.A.


