



COURT OF APPEAL FOR ONTARIO

CITATION: Hopley v. Health One Physio Inc., 2019 ONCA 183

DATE: 20190307

DOCKET: C65609

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Deborah Hopley

Plaintiff (Appellant)

and

Health One Physio Inc. and
Moshin Abdullah
    Patel

Defendants (
Respondent
)

Jillian Van Allen, for the appellant

Jessica DiFederico, for the respondent

Heard and released orally: March 4, 2019

On appeal from the order of Justice A. Sosna of the Superior
    Court of Justice, dated June 5, 2018.

ORAL ENDORSEMENT

[1]

The appellant submits the motion judge erred in dismissing as
    statute-barred her action in negligence against the defendant, Moshin Abdullah
    Patel, the physiotherapist who treated her for injuries arising out of a motor
    vehicle accident.  The motion judge determined that she could reasonably have
    discovered his identity through the exercise of due diligence more than two
    years prior to the commencement of this action.

[2]

The appellant alleges that she was injured by Mr. Patel on August 12,
    2011, but that she did not know his correct name.  She argues that, under s. 5(2)
    of the
Limitations Act
, 2002, S.O.
    2002, c. 24, Sch B
, the earliest date she could reasonably have
    discovered his identity was on September 12, 2013, when counsel for Health One Physio
    Inc. identified him as the physiotherapist who treated her and as an
    independent contractor.  Moreover, she says that her counsels July 22, 2012
    inquiry of Toronto Poly Clinic met the reasonable diligence requirement and
    that Toronto Poly Clinics July 25, 2012 response that no one from that clinic
    treated her on August 12, 2011, was disingenuous and ambiguous.

[3]

We are not persuaded by these submissions.  We see no error in the
    motion judges conclusion that, at a minimum, the appellant could have
    discovered the identity of Mr. Patel through the exercise of reasonable
    diligence more than two years before the claim was commenced.

[4]

In particular, the motion judge pointed to the information provided in
    Toronto Poly Clinics July 25, 2012 letter, that no one from that clinic had
    treated her on August 12, 2011, as a trigger for the appellant or her counsel to
    make inquiries as to the identity of the physiotherapist who did treat her. 
    The uncontroverted evidence is that following the July 25
th
letter, neither
    the appellant nor her counsel made any further meaningful inquiry to ascertain
    the identity of the physiotherapist who had treated her.

[5]

The motion judge made no error in his conclusions that it was
    unreasonable for the appellant to take no further steps following the July 25
th
letter to ascertain the identity of the defendant, Mr. Patel, and that she
    therefore failed to exercise due diligence.

[6]

As a result, the appeal is dismissed.

[7]

Costs are to the respondent, fixed in the amount of $10,000, inclusive
    of disbursements and HST.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.


