



COURT OF APPEAL FOR ONTARIO

CITATION: Rumsam v. Pakes, 2019 ONCA 748

DATE: 20190924

DOCKET: C66544

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Rachel Rumsam

Plaintiff (Respondent)

and

Dr. Barry Pakes and Huronia
    Urgent Care Clinic

Defendants (Appellants)

Andrew Kalamut and Scott Robinson, for
    the appellants

Kristian Bonn, for the respondent

Heard: September 16, 2019

On appeal from the order of Justice Brian
    W. Abrams of the Superior Court of Justice, dated January 11, 2018.

Thorburn J.A.:


OVERVIEW

[1]

Dr. Barry Pakes and Huronia Urgent Care Clinic
    (Huronia) appeal from an order made on January 11, 2019. The motion judge
    granted Ms. Rachel Rumsams motion to add Dr. Caroline Kargel as a defendant in
    the underlying action on the ground that the claim against Dr. Kargel was not
    statute-barred. Dr. Pakes and Huronia claim the motion judge:

a.

failed to apply the correct test for
    discoverability under the
Limitation Act, 2002
, c. 24, Sched. B, s.
    5(1) which provides that a claim is discoverable when the plaintiff has or
ought to have
knowledge of the material
    facts of the claim, not when the plaintiff discovers potential liability; and

b.

erred in his application of the principle in
Sloan
    v. Ultramar Limited
, 2011 ONCA 91, 76 C.B.R. (5th) 153

that a
    plaintiff must exercise reasonable diligence to discover a claim after being
    advised of a triggering event.

FACTUAL BACKGROUND

[2]

On July 11, 2007, Ms. Rumsam attended Huronia
    for treatment of a wrist injury. Dr. Pakes assessed her wrist and ordered an
    x-ray.

[3]

Dr. Pakes reviewed the film and pointed out to
    Ms. Rumsam the indication of a possible hairline fracture of the scaphoid bone.
    He then discharged her with advice that she immobilize, rest, ice, and compress
    the wrist.

[4]

On July 16, 2007, Huronia received a mailed copy
    of the x-ray report prepared by a radiologist. The report confirmed a suspected
    displaced scaphoid fracture and recommended a follow up x-ray. In the bottom
    right hand corner, there is handwriting that says dx scaphoid # and
    underneath that notation, N/A. There is no signature. A physician at Huronia
    reviewed the report but Ms. Rumsam did not receive a phone call or letter that
    indicated that further follow up was required.

[5]

After the pain in her wrist worsened, Ms. Rumsam
    visited her family doctor who referred her to an orthopaedic surgeon. She had
    surgery in April 2008 and again in August 2008.

[6]

Ms. Rumsam reached the age of majority on June
    4, 2010. She commenced an action in negligence against Dr. Pakes and Huronia on
    May 3, 2012. She claimed that Dr. Pakes and Huronia failed to advise her that
    follow up medical consultation was required and failed to notify her of the
    x-ray which indicated that a follow up x-ray should be done, resulting in the
    need for further surgeries for which she sought damages.

[7]

On December 17, 2012, Huronia and Dr. Pakes
    filed the statement of defence, which alleged that:

The report [confirming the scaphoid fracture]
    was reviewed by a physician at the Clinic, who then attempted to contact the
    Plaintiff at the telephone number provided by the Plaintiff in order to advise her
    of the findings.

[8]

In response to a motion brought by Dr. Pakes and
    Huronia, Ms. Rumsam served a responding factum dated August 29, 2013. In the
    factum, Ms. Rumsam makes the following statement:

On July 12 [2007] (the following day),
a clinic physician other than Dr. Pake [
sic
]
placed a
    telephone call to Rachels home number to advise her about the x-ray findings
    and the radiologists recommendation for a follow up x-ray. [Emphasis added.]

[9]

During the examination for discovery of Dr.
    Pakes on August 7, 2014, the radiologists report was produced. Dr. Pakes
    interpreted the note dx scaphoid fracture N/A to indicate a diagnosis (dx)
    of scaphoid fracture, and that the call to the patient was not answered
    (N/A). He was not able to say who wrote the note. Counsel for Dr. Pakes gave
    an undertaking to advise who wrote the note.

[10]

On February 17, 2016, 18 months later, counsel
    for Dr. Pakes and Huronia complied with the undertaking, advising that Dr.
    Kargel wrote the note, except for the N/A.

[11]

On November 15, 2016, counsel for Dr. Pakes and
    Huronia advised Ms. Rumsams counsel that, contrary to Dr. Pakes earlier
    statement, there was no evidence that anyone had ever attempted to call Ms.
    Rumsam.

[12]

On January 18, 2017, Ms. Rumsam moved to add Dr.
    Kargel as a defendant on the basis that Dr. Kargel reviewed the x-ray report
    which indicated a potential scaphoid fracture, but she failed to advise and
    treat her, and this resulted in delayed treatment of the fracture making
    surgeries necessary.

[13]

Dr. Pakes and Huronia opposed the motion to add
    Dr. Kargel as a defendant, arguing that the claim against Dr. Kargel was
    statute-barred pursuant to the
Limitations Act
.

ANALYSIS AND CONCLUSION

A.

Relevant provisions of the
Limitations Act

[14]

The
Limitations Act
provides 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).

B.

The motion judges decision

[15]

The motion judge concluded that the claim
    against Dr. Kargel was not statute-barred.

[16]

At paragraph 70 of the ruling on motion, he correctly
    identified s. 5 of the
Limitations Act
as the relevant codification of
    discoverability and he recognized that the
Limitations Act
imposes a
    presumptive two-year limitation period during which a plaintiff may commence an
    action  a person with a claim is presumed to have known of that claim on the
    day the act or omission took place, unless the contrary is proved. (It is
    agreed that the presumptive limitation period did not begin to run until June
    4, 2010, when Ms. Rumsam reached the age of majority.)

[17]

He also recognized that a plaintiff has a
    positive obligation to exercise reasonable diligence in discovering the
    material facts upon which her cause of action is founded as set out in this
    courts decision in
Pepper v. Zellers

Inc.
(2006), 83 O.R.
    (3d) 648 (C.A.).

[18]

The motion judge held, however, that the
    reference in the statement of defence to the fact that [t]he report was
    reviewed by a physician at the Clinic was not sufficient to alert Ms. Rumsam
    to a claim against another doctor since Dr. Pakes was himself a physician at
    the Clinic and the appellants were collectively unable to answer the more
    important aspect of the notation: who was the author of N/A. The motion
    judge concluded that:

Query then how a reasonable person with the
    Plaintiffs abilities and in her circumstances ought to have discovered Dr.
    Kargels identity within the presumptive limitation period, when it took two
    physicians, who are presumably intimately aware of the documentary procedures,
    processes and staff at the Huronia Clinic, 23 months to answer only the most
    obvious aspect of the notation dx scaphoid fracture N/A: that she suffered a
    broken wrist.  Yet the same two physicians are unable to identify who it was
    that failed to communicate with the Plaintiff in respect of the report, if not
    Dr. Kargel.

[19]

He held that it was reasonable to conclude that Ms.
    Rumsam was unable to identify Dr. Kargel as the physician who wrote the
    handwritten note and thus, arguably failed to communicate with her until November
    15, 2016, when counsel for Dr. Pakes and Huronia complied with the undertaking,
    advising that no one from the clinic had called Ms. Rumsam. He therefore held
    that the claim against Dr. Kargel was not statute-barred.

C.

Analysis

[20]

The test to determine whether the limitation
    period has expired on a particular set of facts is a question of mixed fact and
    law which attracts a standard of palpable and overriding error:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] S.C.R. 235, at para. 36.

[21]

Section 5(b) of the
Limitations Act
provides that a cause of action arises for the purposes of a limitation period
    when the material facts on which it is based have been discovered,
or ought to have been discovered
, by the plaintiff by
    the exercise of reasonable diligence (emphasis added):
Lawless v. Anderson
,
    2011 ONCA 102, 276 O.A.C. 75, at para. 22.

[22]

The identity and culpable acts of the wrongdoer
    must be known or knowable with reasonable diligence:
Mark v. Guelph (City)
,
    2010 ONSC 6034, 104 O.R. (3d) 471; and
Zurba v. Lakeridge Health Corp
.,
    2010 ONSC 318, 99 O.R. (3d) 596.

[23]

However, the law does not require that a
    prospective plaintiff know the exact extent or type of harm suffered, or the
    precise cause of the injury:
Brown v. Wahl
, 2015 ONCA 778, 128 O.R.
    (3d) 588, at para. 15.

[24]

Nor is it necessary to determine which of
    several persons is responsible. It is enough that there is a possible claim
    against them. In
Coutanche v. Napoleon Delicatessen
(2004), 72 O.R.
    (3d) 122 (C.A.), at para. 26, for example, Lane J. for the court held that:

As to the two drivers, Orsini and Palmer, it
    is clear that all the information about their identities and the statements
    made to the police, plus the latter's report, were readily available with any
    degree of diligence, and were actually obtained by solicitor Kirkland, by early
    1999.
It is not necessary to answer the question of how
    and why the deceased went to the highway and walked on it in order to decide if
    there was a cause of action against one or both of these drivers for running
    him down. Nor was it necessary to determine which driver did it
. It is
    highly likely that only a trial could answer that question.
Perfect certainty is not necessary. The reasonable person would
    have known by the receipt of the police information in early 1999, or at the
    latest by the time Mrs. Coutanche reviewed the police report in September 1999,
    that there was a possible claim against these drivers
. There is no room
    on the record before us for the application of discoverability to delay the
    commencement of the running of the limitation against the drivers for a
    sufficient period to bring the start of the limitation to February 22, 2000,
    two years before the commencement of the action. [Emphasis added.]

[25]

Moreover, in
Safai v. Bruce N. Huntley
    Contracting Ltd.
,
2010
    ONCA 545, 322 D.L.R. (4th) 1, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 365, at para. 19, Armstrong J.A. for the court clarified that
    having the precise name of a defendant is not required as long as the name can
    be ascertained by exercising reasonable diligence:

On February 17, 2000, Ms. Safai knew that she
    had fallen and injured her ankle.
She knew that she
    likely had a claim for her injuries against the owner of the property.  As of
    the date of the accident, she was in a position to ascertain the name of the
    registered owner of the property
. Reasonable diligence on her part and
    on the part of her lawyer produced the name of the registered owner of the
    building in due course.
In my view, there is simply no
    reasonable basis in these circumstances to invoke the discoverability rule to
    postpone the commencement of the limitation period
. [Emphasis added.]

[26]

The due diligence requirement is not satisfied
    by waiting for someone else to advise who the correct defendant is:
Klein
    v. G4S Secure Solutions (Canada) Ltd
., 2016 ONSC 1930, at para. 23.

[27]

In this case, on August 29, 2013, Ms. Rumsam
    advised in writing that:

On July 12 [2007] (the following day),
a clinic physician other than Dr. Pake [
sic
]
placed a
    telephone call to Rachels home number to advise her about the x-ray findings
    and the radiologists recommendation for a follow up x-ray. [Emphasis added.]

[28]

As such, at least by that date, Ms. Rumsam knew
    that:

1.

There was a second clinic physician involved in
    her care;

2.

The second clinic physician knew about her x-ray
    findings;

3.

That physician did not inform her of the x-ray
    findings and the recommendation to undergo a second x-ray; and as a result

4.

She required two surgeries and suffered damages.

[29]

The only thing Ms. Rumsam did not know by August
    29, 2013, was the name of the second clinic physician.

[30]

As of August 29, 2013, Ms. Rumsam was obliged to
    exercise reasonable diligence to secure the name of the second doctor to
    satisfy the requirement in s. 5(b) of the
Limitations Act
that a
    cause of action arises for the purposes of a limitation period when the
    material facts on which it is based have been discovered,
or ought to have been discovered
, by the plaintiff by
    the exercise of reasonable diligence (emphasis added):
Lawless
, at
    para. 22.

[31]

Ms. Rumsam did not make any inquires to
    determine the author of the note or her involvement in Ms. Rumsams care from
    August 29, 2013, when the limitation period began, until Dr. Pakes examination
    for discovery on August 7, 2014.

[32]

In any event, there is no reason to extend the
    two-year limitation period beyond August 29, 2015, as Ms. Rumsam has failed to
    provide evidence that she would not have identified Dr. Kargel earlier had she
    exercised reasonable diligence after becoming aware of the information by
    August 29, 2013. On the contrary, Ms. Rumsam did receive the information that
    identified Dr. Kargel, albeit it took approximately 18 months once the request
    was made. Even the undertaking regarding who wrote the N/A portion of the
    note was fulfilled within 23 months.

D.

Summary of Conclusions

[33]

In conclusion:

1.

A claim must be brought within two years of a
    claim being discovered.

2.

A claim is discovered when the claimant first
    knew the injury occurred, that it was caused by an act or omission, that the
    act or omission was caused by the person against whom the claim is made, and
    that there was loss.

3.

The injury was sustained on July 11, 2007, so
    normally the limitation period would have expired on July 11, 2009.

4.

Given that Ms. Rumsam did not turn 18 until June
    4, 2010, the presumptive limitation period did not begin to run until that
    date.

5.

The limitation period would have expired on June
    4, 2012, but for the discoverability principle.

6.

By August 29, 2013 at the latest, Ms. Rumsam
    knew all of the material facts except the name of the second clinic physician
    in question.

7.

By August 29, 2013 at the latest, she was
    required to exercise reasonable diligence to get the name within the two-year
    period as she knew she likely had a claim against this person for her injuries,
    and August 29, 2013 was 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 as set out in s. 5(1)(b) of the
Limitations
    Act
.

8.

The onus to prove reasonable diligence is on Ms.
    Rumsam.

9.

She failed to exercise reasonable diligence as
    no steps were taken for at least a year.

10.

As such, as the court held in
Safai
,
    there is no basis to extend the limitation period for more than two years as,
    from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a
    position to ascertain the name by reasonable diligence.

[34]

There was a palpable and overriding error in the
    motion judges finding of mixed fact and law as:

a.

He did not address the fact that as of August
    29, 2013, in her own materials, Ms. Rumsam provided evidence that she had
    knowledge of the material facts of the claim other than the name of the second
    clinic doctor;

b.

He erred in his application of s. 5(b) of the
Limitations
    Act
, as he did not address the fact that Ms. Rumsam had an obligation to
    exercise reasonable diligence to obtain the name as of August 29, 2013 at the
    latest; and

c.

He did not address the fact that as of August
    29, 2013, Ms. Rumsam failed to exercise reasonable diligence to obtain Dr.
    Kargels name.

[35]

For these reasons, the appeal is granted. On the
    consent of both parties, costs of this appeal to Dr. Pakes and Huronia in the
    amount of $15,000.

Released: DD SEP 24 2019

Thorburn
    J.A.

I
    agree. Doherty J.A.

I
    agree. A. Harvison Young J.A.


