



COURT OF APPEAL FOR ONTARIO

CITATION:
Taylor v.
David, 2022 ONCA 200

DATE: 20220308

DOCKET: C69474

van Rensburg, Nordheimer and
Harvison Young JJ.A.

BETWEEN

Andrea Theresa Taylor and Andre Coream Mattrasingh

Plaintiffs (Appellants)

and

Dr.
Lesley A. David, Dr. Joanne E. Collins and Dr. Larry Raley

Defendants (Respondents)



Ikenna Aniekwe, for the appellants

Eric S. Baum, for the respondents

Heard: March 7, 2022 by video
conference

On
appeal from the order of Justice James F. Diamond of the Superior Court of
Justice, dated May 3, 2021, with reasons reported at 2021 ONSC 3264.

REASONS FOR DECISION

[1]

Andrea Theresa Taylor
and her son, Andre Coream Mattrasingh, appeal from the summary judgment granted
by the motion judge which dismissed their action on the basis that it was
statute-barred by virtue of the
Limitations Act,
2002
, S.O. 2002, c. 24,
Sched. B., specifically s. 15 which establishes an ultimate 15‑year
limitation period. At the conclusion of the hearing, we dismissed the appeal for
reasons to follow. We now provide our reasons.

[2]

The background facts may be stated briefly. On
or about September 2, 2004, the appellant Taylor underwent jaw surgery
performed by Dr. David and Dr. Raley at the Trillium Health Centre. Dr. Collins
is the orthodontist who referred Taylor to Dr. David for the surgery.

[3]

The appellants seek damages arising from
Taylor's surgery which the appellants claim was performed negligently and
without Taylor's informed consent. At the time of the surgery, the appellant
Mattrasingh
was a
minor. He did not reach the age of majority until December 2008.

[4]

The statement of claim was issued on February
27, 2020, more than 15 years after the surgery. That fact meant that the appellants
would have to establish one of the exceptions set out in s. 15(4), which reads:

The limitation period established by
subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of
commencing a proceeding in respect of the claim because of his or her physical,
mental or psychological condition, and

(ii) is not represented
by a litigation guardian in relation to the claim;

(b) the person with the claim is
a minor and is not represented by a litigation guardian in relation to the
claim; or

(c) the person against whom the
claim is made,

(i) wilfully conceals
from the person with the claim the fact that injury, loss or damage has
occurred, that it was caused by or contributed to by an act or omission or that
the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads
the person with the claim as to the appropriateness of a proceeding as a means
of remedying the injury, loss or damage.

[5]

The appellants rely first on s. 15(4)(c) on the
basis that the respondents concealed information from them by failing to
disclose Taylors medical records. The motion judge rejected this contention,
as do we. There is no evidence that the appellants ever asked for Taylors
medical records or took any other steps to obtain them. The appellants
reliance on various directives from the Royal College of Dental Surgeons of
Ontario is misplaced. Assuming that there was any failure by the respondents to
provide medical reports or records to other physicians, it would not affect the
knowledge of the appellants in terms of whether Taylor had injury, loss or
damage. Nor would the suggestion, made on appeal, that Dr. David told Taylor
that her pain was all in her head (which he denied), without more, amount to a
concealment of relevant facts.

[6]

The appellants also rely on Taylors asserted
incapacity under s. 15(4)(a). The motion judge noted that there was no
independent medical or psychological evidence to support the assertion of
incapacity. At most, Taylor attached some medical records to her affidavit on
which she relied for this assertion. The motion judge rejected that evidence as
being insufficient to establish incapacity. Again, we agree with the motion
judge. If the appellants intended to rely on Taylors asserted incapacity as a
reason for the failure to institute the action before the expiration of 15
years, they bore the burden of providing sufficient evidence to support that
claim. They did not do so.

[7]

The appellants submit that the motion judge
failed to consider the physical conditions that affected Taylor. We do not
accept that criticism. The motion judge referred, more than once, to the
medical or psychological evidence. The former addresses the physical
conditions. In addition, the medical evidence, such as it was, does not explain
why Taylor was not physically able to commence a proceeding within the
limitation period.

[8]

Finally, the appellants attempt to separately
support the claim by
Mattrasingh
for his derivative claim under s. 61(1) of the
Family
Law Act
, R.S.O. 1990, c.
F.3. The appellants assert that the law that holds that such claims are not
independent claims, but rather have their existence tied to the principal claim,
is both wrong and wrongful.

[9]

We do not accept the
appellants challenge to the nature of dependants claims under s. 61(1). The
wording of that section is clear. It begins, If a person is injured or killed
by the fault or neglect of another, then dependants are entitled to recover
their pecuniary loss resulting from the injury or death. The derivative nature
of those claims is established by the clear language of the section. The
appellants submissions for a contrary interpretation are unpersuasive. It is
not for this court to re-write the legislation.

[10]

The appellants failed to bring themselves within
the exceptions to the 15‑year ultimate limitation period. The claim is
statute-barred as found by the motion judge.

[11]

It is for these reasons that the appeal was
dismissed. The respondents are entitled to their costs of the appeal which we
fix at $7,500 inclusive of disbursements and H.S.T.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

Harvison Young J.A.


