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.

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The Ontario Court of Appeal decision, Burns v RBC Life Insurance Company et al. 2020 ONCA 347, provides insight into the adequacy of claims that could give rise to personal liability for torts committed in the course of employment.

Background

In 2012, plaintiff, stopped working due to pain. Shortly thereafter, RBC Life Insurance Company (“RBC Life”), one of the defendants, approved long-term disability (“LTD”) benefits payments. In 2017, RBC Life terminated the plaintiff’s LTD benefits.

The plaintiff brought an action seeking the reinstatement of LTD benefits. Further, the plaintiff sought special damages against the disability insurer, RBC Life, as well as two of its employees involved in the termination process.

Subsequently, the employees, successfully brought a motion to have the statement of claim struck out as it did not disclose a reasonable cause of action against them. The plaintiff appealed on the grounds that the motion judge erred not following well-established jurisprudence that a cause of action in tort can lie against the employee of a corporate employer for conduct carried out in the course of usual employment.

On appeal

The Court of Appeal found the motion judge had not erred in finding that the plaintiff had not properly pleaded the material facts to support the claims against the individual defendants. Notably, the Court provided a “simple question”, a touchstone, that each defendant named in a statement of claim should be able to find the answer to in a pleading:

“What do you say I did that caused you, the plaintiff, harm, and when did I do it?”

The statement of claim did not provide either individual named defendant with an individualized answer to that question. Moreover, his pleadings failed to differentiate between any of the defendants nor did he provide the necessary material facts required to support a claim against each of them respectively, as required in r. 25.06(1) of the Rules of Civil Procedure.

The Court of Appeal agreed with the motion’s judge in finding that the plaintiff had not pleaded a viable cause of action against the employees that would attach liability to them in their personal capacities because the allegations advanced against them did not manifest an identity or interest separate from RBC Life.   

However, where the Court disagreed with the motion judge’s denial of the plaintiff leave to amend the deficiencies in his pleadings. Leave to amend should only be denied in the clearest of cases. In this case, where the deficiencies could be easily cured by an amendment and the other party would not suffer any prejudice if leave to amend was granted, it should have been granted.

Further, the Court determined that it was too early for the motion judge to reach the conclusion that the plaintiff cannot plead such a claim against the employees.

Given the deficiencies in the statement of claim, the Court of Appeal found that they could not reach a determination as to whether the alleged conduct by the employees of an insurance company constitutes a “distinct actionable legal wrong”, which could be pleaded against the employees in their personal capacities. The Court left that question for another day to be addressed once the amended statement of claim included properly plead individualized claims.

The post The Importance of Drafting Proper and Accurate Pleadings appeared first on FCL LLP.

FCL LLP Partner, Kim Duong successfully argued a summary judgment motion involving issues of limitation and solicitor-client privilege.

In CFO Capital et al. ats Paul Dass et al., the plaintiffs sought damages for fraud, professional negligence and reputational injury alleged to have been caused by the defendants. In addition to the denial of any and all allegations of wrongdoing, the defendants asserted that the plaintiffs’ claim had breached the two year limitation period.

While the plaintiffs became aware of the material facts required to advance a claim, they waited over two and a half years before commencing the action. The plaintiffs argued that the evidence they had available at that time was insufficient to be successful in an action.  However, the Court in agreeing with the defendants, held that the absolute success of a claim, or the exact amount of damages claimed is not required to trigger the limitation period.

In doing so, the Court referred to the recent Court of Appeal decision, Sosnowski v. MacEwan, which set out three main principles in interpreting when it is “appropriate” to commence an action:

1. To determine if an action is the appropriate means to seek to remedy
   a loss or damage depends on the specific factual and/or statutory
   setting of each case;
2. Two circumstances have been accepted as delaying the date on
   which a claim is discovered under this subsection: when the plaintiff
   relies on the superior knowledge and expertise of the defendant, or
   where an alternative dispute resolution process offers an adequate
   remedy, and it is not complete; and
3. The word “appropriate” means “legally appropriate”. In other words,
   “appropriate” does not include an evaluation of whether a civil
   proceeding will succeed.

Ultimately, the Court was satisfied that there was no genuine issue requiring a trial and granted summary judgment in favor of the defendants.

The plaintiffs have indicated they intend to appeal this decision. Stay tuned for the decision of the Court of Appeal on this matter.

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