In Andrews v. Pattison, the Ontario Court of Appeal upheld a summary motion decision involving section 5(1)(a) of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”).

Ms. Gorton was diagnosed with terminal lung cancer in the spring of 2013. She passed away in April 2014. Prior to her passing, she was treated by the respondent doctor between 2008 and 2013. The doctor ordered a chest x-ray in late 2008. No anomalies were discovered. No other chest x-rays were requisitioned until May 2013. It was the x-ray of May 2013 that led to the cancer diagnosis.

The appellants issued a statement of claim on April 11, 2016, against the respondent doctor. At the summary motion, the appellants asserted that the limitation period did commence until they obtained expert reports on the standard of care and causation in 2015. However, the motion judge held that the appellants’ claim was discoverable no later than February 6, 2014, when they met with a medical malpractice lawyer. By that date, the appellants had obtained the complete medical records of Ms. Gorton and expressed concern about whether an earlier x-ray might have led to a better outcome.

It was held that the appellants had actual knowledge of the potential claim against the respondent doctor on February 6, 2014. The claim issued on April 11, 2016, was therefore out of time. The action was summarily dismissed as statute barred under section 5(1)(a) the “Limitations Act”.

The Court held that the determination of when a potential plaintiff has sufficient material facts on which a plausible inference of liability on the defendant’s part can be drawn “is not to be conflated with the question of the discovery of the merits of the potential action.” Both the Court of Appeal and the motion judge recognized that the Limitations Act “does not distinguish between meritorious and non-meritorious claims.” In other words, knowing the strength of a potential action is not determinative of when the limitation period for that action will commence.

The post The Limitations Act: Meritorious vs Non-Meritorious Claims appeared first on FCL LLP.