



COURT OF APPEAL FOR ONTARIO

CITATION: Hawthorne v. Markham Stouffville Hospital, 2016
    ONCA 10

DATE: 20160106

DOCKET: C60444

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Sherriene Hawthorne and Povell Tyrell

Plaintiffs/Appellants

and

Markham Stouffville Hospital, York Central
    Hospital,
Dr. Ademilola Oyenubi, Dr. Joanne Lewtas,
    Dr. Partha Datta, Dr. Andrew Arcand,
Dr. Arthur Bookman,
Dr. Caroline
    Geenen, Dr. Solow, Dr. A. Ing,
Dr. Lola,
Dr. Bansal,
Dr. Gernin,
Dr. David Weizman, Dr. Larry Grossman, Dr. M. Sugai, Dr. Andre F. Charest,
    Dr. Aviv S. Gladman, Dr. Allan Kagal, Dr. Seyed Ali Ghafouri, Dr. Prince
    S. Aujla

Defendants/
Respondents

Prakash Pooran, for the appellants

Meredith E. Jones, for the respondents

Heard: January 4, 2016

On appeal from the judgment of Justice
Suhail
    A.Q. Akhtar
of the Superior Court of Justice, dated April 13, 2015.

ENDORSEMENT

[1]

The appellants appeal from an order dismissing their action as against
    the respondents on a summary judgment motion.

[2]

The appellants claimed damages for medical malpractice, as a result of
    the appellant Sherriene Hawthornes treatment between October 2009 and March
    2010, initially for a urinary tract infection. Ms. Hawthorne asserted that high
    doses of steroids were administered to her without her consent, which made her
    slip into a coma and suffer loss of memory and vision, and paralysis. Her son
    claimed damages under the
Family Law Act
, R.S.O. 1990, c. F.3
.
The action against the defendant hospitals was
    dismissed on consent.

[3]

Ms. Hawthorne had commenced three actions in respect of the alleged
    medical malpractice. The first was initiated in November 2011 by notice of
    action. There is no evidence as to what happened to this action. The second,
    commenced in March 2012, also by notice of action, was dismissed as abandoned
    by the registrar in November 2012. The third action, which was the subject of
    the summary dismissal, was commenced on October 26, 2012. The appellants were
    self-represented when they filed their claims, and represented by counsel in
    responding to the motion for summary judgment.

[4]

In the statement of claim in the third action, the appellants pleaded
    that Ms. Hawthorne became aware of the malpractice when she retrieved her
    medical records from two of the defendant hospitals in October and November
    2011. The respondents brought a motion, among other things, to dismiss the
    action, relying on the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch.
    B.

[5]

The motion judge granted the motion on the basis that the statutory
    presumption in s. 5(2) of the
Limitations Act, 2002
applied: that is,
    that the claim was presumed to have been discovered on the day the act or
    omission on which the claim is based took place, unless the contrary is proved.

[6]

The evidence was that Ms. Hawthorne had been discharged from the
    hospital in March 2010. The appellants offered no evidence, however, relating
    to discoverability in response to the motion. There were inconsistencies
    between the second notice of action and the statement of claim in the third
    action with respect to the date Ms. Hawthorne claimed to have discovered her
    claim against these respondents. In the second action, the notice of action pleaded
    that the claim was discovered when Ms. Hawthorne retrieved her medical records
    around September 2010 (the pleading stated 2009, but it is agreed that was a
    typographical error). In contrast, in their pleading in the third action, the
    appellants alleged that the records were retrieved in October and November
    2011. According to the motion judge, this unexplained inconsistency made the
    discovery date pleaded in the current action unworthy of belief.

[7]

On appeal, the appellants assert that the motion judge erred by failing
    to give effect to evidence that was available in the motion record, but not
    referred to in argument. The evidence consists of receipts for payment for
    medical records by Ms. Hawthorne, dated October 28 and November 1, 2011, which
    would suggest that that was the time Ms. Hawthorne discovered the act or
    omission on which the claim was based.

[8]

We do not give effect to this argument. The failure of the appellants to
    respond to the summary judgment motion with evidence to rebut the presumption
    in s. 5(2) of the
Limitations Act, 2002
is fatal. Pleadings are not
    evidence. The appellants could not rest on the pleading of a timely discovery
    date in their third action, when confronted by a motion for summary dismissal
    based on the limitations argument.

[9]

The two receipts that were in the record (as part of the respondents
    materials), even if drawn to the attention of the motion judge, without any
    further evidence or explanation, could not have affected the result. Even if it
    might be reasonable to conclude that the appellants received medical records on
    the dates shown in the receipts for payment, this was not sufficient to
    overcome the statutory presumption. The receipts alone do not advance the
    appellants discoverability argument, in the absence of any explanation by Ms.
    Hawthorne linking what was in the records to the discovery of her claim.

[10]

For
    these reasons, the appeal is dismissed. The respondents are entitled to their
    costs of the appeal, if requested, fixed in the amount of $7,000, inclusive of
    applicable taxes and disbursements.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


