In Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596 (ON SCJ), the plaintiff fractured his ankle in a way that exposed his bone and internal tissues to grass and dirt in August of 2003. The doctor who initially treated the plaintiff cleaned and dressed the wound with a cast instead of proceeding with the necessary surgery. Significant ongoing infection at the fracture site later caused another doctor to suggest amputation. The plaintiff refused and after lengthy course of surgeries and therapy with no improvement, the plaintiff retained counsel and initiated the law suit. The plaintiff subsequently received an expert medical opinion from an orthopaedic expert that the treating doctor’s care was negligent.

The Ontario Superior Court considered the Limitations Act, 2002 and its applicability with respect to the discoverability of the cause of action. Lauwers, J. found that a plaintiff must not only know of the injury but must also know that someone erred before the cause of action crystallizes and the limitation period commences running.

The Court went on to establish two categories of cases: 1) Where an expert opinion is not necessary to know whether to institute an action because all the material facts are known; and 2) where an expert opinion is required to trigger the limitation period because all material facts cannot be known without one. In Zurba, notwithstanding that the statement of claim was issued before the expert medical report was obtained, the Court found that it could consider the report with respect to discoverability in order to determine when the limitation period began to run.

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In Hughes v. Kennedy Automation Limited, 2008 ONCA 770, the plaintiffs were suing the defendant for non-payment under a purchase and sale agreement for shares.  The purchase and sale agreement had been drafted by the defendant corporation's solicitor; the plaintiffs had not retained their own lawyer to act for them in the share sale transaction.   The plaintiffs became aware of the original non-payment on July 31, 2005.  However, the plaintiffs waited until November 2006 to retain their own lawyer to sue the defendant. 

In November 2007, the plaintiffs brought a motion to add the defendant's solicitor and his law firm, for breach of fiduciary duty and negligence.  The plaintiffs were alleging that the solicitor acted in a conflict of interest and failed to recommend they seek independant legal advice.  The motions judge ruled that the claim against the solicitor and his law firm were barred by the two-year limitation in section 4 of the Limitations Act, 2002.  On the evidence before him, Glithero J. was satisfied that the identity of the solicitor and his law firm, the facts surrounding his involvement and the fact of non-payment were all known to the plaintiffs by July 31, 2005.  Therefore the presumption in section 5(2) of the Limitations Act, 2002 applied to make the claim discoverable by that time, more than two years before the November 2007 motion to add the solicitor and his law firm.   The Ontario Court of Appeals affirmed this decision.

Enjoy your vacation,

Chris Graham

In Hughes v. Kennedy Automation Limited, 2008 ONCA 770, the plaintiffs were suing the defendant for non-payment under a purchase and sale agreement for shares.  The purchase and sale agreement had been drafted by the defendant corporation's solicitor; the plaintiffs had not retained their own lawyer to act for them in the share sale transaction.   The plaintiffs became aware of the original non-payment on July 31, 2005.  However, the plaintiffs waited until November 2006 to retain their own lawyer to sue the defendant. 

In November 2007, the plaintiffs brought a motion to add the defendant's solicitor and his law firm, for breach of fiduciary duty and negligence.  The plaintiffs were alleging that the solicitor acted in a conflict of interest and failed to recommend they seek independent legal advice.  The motions judge ruled that the claim against the solicitor and his law firm were barred by the two-year limitation in section 4 of the Limitations Act, 2002.  On the evidence before him, Glithero J. was satisfied that the identity of the solicitor and his law firm, the facts surrounding his involvement and the fact of non-payment were all known to the plaintiffs by July 31, 2005.  Therefore the presumption in section 5(2) of the Limitations Act, 2002 applied to make the claim discoverable by that time, more than two years before the November 2007 motion to add the solicitor and his law firm.   The Ontario Court of Appeals affirmed this decision.

Enjoy your vacation,

Chris Graham