



COURT OF APPEAL FOR ONTARIO

CITATION: Dale v. Frank, 2017 ONCA 32

DATE: 20170117

DOCKET: C62265, C62266, C62267, C62268, C62269

Strathy C.J.O., MacPherson and Hourigan JJ.A.

C62265

BETWEEN

Melanie Ann Dale

Plaintiff (Appellant)

and

Cathy Sheila Frank
,
    Nancy Whitmore, William Frydman, Paul Collins, Dr. Red, Dr. Blue, and St.
    Thomas Elgin General Hospital

Defendants (
Respondent
)

C62266

AND BETWEEN

Rachel Gladkowski

Plaintiff (Appellant)

and

Cathy Sheila Frank
,
    Michael John Roe,
John Alexander McKenzie
, Nancy
    Whitmore, William Frydman, Paul Collins, Dr. Red, Dr. Blue, and St. Thomas
    Elgin General Hospital

Defendants (
Respondents
)

C62267

AND BETWEEN

Diane Lesak

Plaintiff (Appellant)

and

Cathy Sheila Frank
,
John Alexander McKenzie
, Nancy Whitmore, William
    Frydman, Paul Collins, Dr. Red, Dr. Blue, and St. Thomas Elgin General Hospital

Defendants (
Respondents
)

C62268

AND BETWEEN

Patricia Pettit

Plaintiff (Appellant)

and

Cathy Sheila Frank
,
John Alexander McKenzie
, Nancy Whitmore, William
    Frydman, Paul Collins, Dr. Red, Dr. Blue, and St. Thomas Elgin General Hospital

Defendants (
Respondents
)




C62269

AND BETWEEN

Lidija Poff

Plaintiff (Appellant)

and

Cathy Sheila Frank
,
    Nancy Whitmore, William Frydman, Paul Collins, Dr. Red, Dr. Blue, and St.
    Thomas Elgin General Hospital

Defendants (
Respondent
)

Joni Dobson and Danielle Douek, for the appellants

Carolyn Brandow and Jacob Damstra, for the respondents

Heard: January 10, 2017

On appeal from the judgment of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated May 16, 2016, with reasons reported at
    2016 ONSC 3211.

ENDORSEMENT

[1]

The appellants were patients of the respondent Dr. Cathy Frank, a
    medical doctor who carried on a practice as an obstetrician and gynecologist at
    St. Thomas Elgin General Hospital. Between September 2012 and August 2013, all
    of the appellants, in separate actions, brought claims against Dr. Frank and
    related medical parties, personal and institutional, for negligence and breach
    of fiduciary duty. The essential claim was that Dr. Frank performed various
    medical procedures below the standard of care, thus injuring the appellants.

[2]

The respondents brought motions for summary judgment on the basis that
    all of the actions were brought outside the relevant two year limitation period
    in s. 4 of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B (the
    
Act
).

[3]

The appellants conceded that they had not commenced their proceedings
    before the second anniversary of the medical procedures that had caused their
    injuries. However, they relied on the principle of discoverability to resist
    the motions for summary judgment. Counsel for the appellants, Legate & Associates
    LLP, had issued a press release on November 4, 2011 indicating that the
    respondents were being sued by other patients for medical negligence and that a
    complaint against the respondents had been filed with the College of Physicians
    and Surgeons.

[4]

The motion judge granted the motions for summary judgment. She reviewed
    the facts relating to each appellant and in every case concluded that, [b]ased
    on the objective standard of assessing due diligence, the Plaintiffs have not
    demonstrated that they acted with reasonable diligence to discover their claims.

[5]

The appellants appeal from the motion judges decision.

[6]

The appellants contend that the motion judge erred in holding that ss.
    5(1)(a)(ii) and (iii) of the
Act
do not require a plaintiff to have knowledge that an act or omission causing
    injury is wrongful for a claim to be discovered. To discover a claim, say the
    appellants, a plaintiff must know that the acts or omissions in question are
    culpable ones.

[7]

We do not accept this submission. In our view, the motion judge was
    correct to hold that a plaintiff need not know that a defendants act or
    omission was culpable in order for the loss it causes to be discovered. To
    require a plaintiff to know with certainty that her injuries were caused by the
    fault of the defendant would require her to have come to a legal conclusion as
    to the defendants liability to her. This is too high a bar for a plaintiff to
    have to meet: see
Kowal v. Shyiak
, 2012 ONCA 512, 296 O.A.C. 352, at
    para. 18. The proper test, as applied by the motion judge, is Rouleau J.A.s
    formulation in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75, at
    paras. 23 and 28:

Determining whether a person has discovered a claim is a
    fact-based analysis. The question to be posed is whether the prospective plaintiff
    knows enough facts on which to base an allegation of negligence against the
    defendant. If the plaintiff does, then the claim has been discovered, and the
    limitation begins to run: see
Soper v. Southcott
(1998), 39 O.R. (3d)
    737 (C.A.) and
McSween v. Louis
(2000), 132 O.A.C. 304 (C.A.).



[W]hat a prospective plaintiff must know are the
material
    facts
necessary to make a claim, whatever form they come in. [Emphasis in
    original.]

[8]

The appellants submit that the motion judge erred by failing
    to consider the test for discoverability in s. 5(1)(a)(iv) of the
Act
.

[9]

We are not persuaded by this submission. Although the motion judge did
    not undertake a distinct analysis under this provision, her conclusion that
    each of the appellants knew or ought to have known of the other elements in s.
    5(1)(a) was sufficient to infer that she also concluded that the appellants
    knew or ought to have known that a proceeding would be an appropriate means to
    seek a remedy for their losses even before the 2011 press release about Dr.
    Frank.

[10]

The appellants assert that the motion judge focused exclusively on the
    respondents negligence claims against them and ignored their breach of
    fiduciary duty claims, especially against Dr. Frank.

[11]

We disagree. The essence of the claims against the respondents is
    negligence. In the various statements of claim, the pleaded particulars
    grounding the negligence and fiduciary duty claims are explicitly linked and
    virtually identical. The breach of fiduciary duty claims are not stand alone
    claims and, therefore, do not introduce a different analysis into the
    limitation period issue.

[12]

In the end, the appellants core submission is that the November 2011
    press release by Legate & Associates LLP was a game-changer on the issue of
    discoverability.

[13]

We do not accept this submission. The discovery of a new fact, unrelated
    to the specific medical procedure provided by a specific doctor to a specific
    patient, does not restart the limitation period: see
Investment
    Administration Solution Inc. v. Silver Gold Glatt & Grosman LLP
, 2011
    ONCA 658, 107 O.R. (3d) 795, at paras. 14-15, leave to appeal refused, [2011]
    S.C.C.A. No. 543.

[14]

Finally, the appellants seek leave to appeal the motion judges costs
    award of approximately $78,000 (for five summary judgment motions and five actions).

[15]

The respondents sought cumulative costs of approximately $117,000 on a
    partial indemnity basis. Although the motion judges costs endorsements did not
    explain precisely how she calculated the costs in each case, she made reference
    to the applicable authorities and we see no basis for interfering with this
    discretionary order. The appellants costs position on the summary judgment motions
    was almost identical to the respondents position and the motion judge made an
    award about one-third below the amount sought by the respondents. We cannot say
    that the costs award was outside the reasonable expectations of the parties:
    see
Boucher v. Public Accountants Council for the Province of Ontario
(2004),
    71 O.R. (3d) 291 (C.A.).

[16]

The appeals are dismissed. Leave to appeal costs is granted, but the
    costs appeals are dismissed. The respondents are entitled to their costs of the
    appeals fixed at $10,000 (in total), inclusive of disbursements and HST.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


