A positive obligation to exercise ‘reasonable diligence’ in identifying the proper party.

By Samah Rahman

 

In Rumsam v. Pakes, 2019 ONCA 748, the Ontario Court of Appeal confirmed that the plaintiff patient could not sidestep the limitation period by defaulting to an excuse that she was unaware of the defendant doctor’s identity.

The story goes like this: In 2007, the plaintiff sought treatment for a wrist injury. The defendant, Dr. P, diagnosed it as a hairline fracture and discharged the plaintiff. A radiology report delivered to the clinic a few days later, diagnosed the injury as a more serious displaced fracture and recommended a follow-up. The plaintiff alleges she was never contacted with news of this development. Eventually, the injury worsened, and the plaintiff had to undergo two surgeries to remediate the situation.

In 2010, the plaintiff reached the age of majority, and in 2012, she commenced this action against Dr. P and his clinic for negligence in failing to advise her of the radiology report. After discoveries, it was revealed that a Dr. K, not Dr. P had made a notation about a following up with the patient – as such, Dr. K ought to be liable. The plaintiff brought a motion to add Dr. K as a defendant despite the expiry of the limitation period. The motion’s judge allowed it on the basis that the plaintiff had been unable to identify Dr. K as the doctor who reviewed the report. The defendant doctors appealed.

The Court of Appeal overturned the motion judge’s decision and allowed the appeal. The plaintiff had previously acknowledged that ‘another doctor’ tried to contact her about the radiology reports. The plaintiff was clearly aware of an individual other the named defendant, Dr. P, who may be liable for her loss; she simply failed to exercise due diligence in identifying this other doctor. The court held that there was no reason to extend the limitation period to accommodate her lack of due diligence, and as such, her claim was statute-barred.

This case reaffirms the principle that a plaintiff has a positive obligation to exercise reasonable diligence in discovering the material facts upon which her claim is founded. In this case, the material fact happened to be the identity of the correct defendant.