The Court of Appeal has upheld Justice Mew’s decision in Brown v. Baum. I wrote about it here.
Justice Mew found that section 5(1)(a)(iv) of the Limitations Act delayed the commencement of the limitation period for a medical malpractice claim until a proceeding became an appropriate remedy, and that a proceeding did not became an appropriate remedy during the defendant’s good faith efforts to achieve a medical solution to the underlying injury. The appellants argued that Justice Mew erred by conflating a claim to a legal right with taking legal proceedings to pursue that right.
Justice Feldman rejected this rather strained argument:
[18] The motion judge’s application of the subsection to the facts on this record was particularly apt: he concluded that because the doctor was continuing to treat his patient to try to fix the problems that arose from the initial surgery, that is, to eliminate her damage, it would not have been appropriate for the patient to sue the doctor then, because he might well have been successful in correcting the complications and improving the outcome of the original surgery. On the evidence of Dr. Brown, the specialist who provided Ms. Brown with a second opinion, by September 2010, Dr. Baum in fact was successful in ameliorating Ms. Brown’s damage.
The appellant also argued that Justice Mew gave the term “appropriate” in section 5(1)(a)(iv) an “evaluative gloss” rather than applying the meaning of “legally appropriate” given by Justice Sharpe in Markel. Justice Feldman rejected this argument as well:
[19] Second, the appellant submits that the motion judge gave the term “appropriate” an “evaluative gloss” rather than applying the meaning of “legally appropriate”, contrary to this court’s decision in Markel. Again I do not agree. The motion judge was entitled to conclude on the facts of the case that Ms. Brown did not know that bringing an action against her doctor would be an appropriate means to remedy the injuries and damage she sustained following her breast reduction surgery until June 16 2010, after Dr. Baum performed the last surgery.
[20] Further, I am satisfied that the test in s. 5(1)(b) is met. A reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated.
Justice Feldman also offered the following observation about the factually specific nature of a section 5(1)(a)(iv) analyses:
[21] I would also add this observation: the Markel case involved insurance transfer payments and considerations of the appropriateness of possibly delaying the commencement of legal action in order to negotiate a settlement. The considerations for when it is appropriate for a patient to delay suing her doctor when that doctor is continuing to treat her are quite different. I certainly agree with the motion judge that there are many factual issues that will influence the outcome. The fact that a number of recent cases (for example, Tremain v. Muir (Litigation guardian of), 2014 ONSC 185 (CanLII), Chelli-Greco v. Rizk, 2015 ONSC 6963 (CanLII), Novello v. Glick, 2016 ONSC 975 (CanLII), 2016 ONSC 975 (Div. Ct.), and Barry v. Pye, 2014 ONSC 1937 (CanLII)) have considered this very issue with different outcomes is a testament to this approach.
One noteworthy aspect of the decision is that Justice Feldman does not reference Justice Juriansz’s more recent explanation of section 5(1)(a)(iv) from Clarke v. Faust, which we wrote about here: “That provision requires, in my view, a person to have good reason to believe he or she has a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to seek to remedy the injury, loss or damage.” This may simply reflect that the Court heard the appeal before delivering Clarke.
