Causing mischief

Ontario: discovery doesn’t require knowledge of culpability

Update: The Supreme Court denied leave to appeal.

In Dale v. Frank, the Court of Appeal reiterated that discovery of a claim doesn’t require knowledge that the defendant’s act or omission was culpable.  To require a plaintiff to know with certainty that the defendant’s wrongful conduct caused her injuries would require her to come to a legal conclusion as to the defendant’s liability.  This is too a high a bar, and not what s. 5(1) of the Limitations Act requires.

The Appellants also argued that the motion judge erred by failing to consider s. 5(1)(a)(iv) of the Limitations Act in her analysis. The Court of Appeal rejected this argument.  The reasons permitted the inference that the motion judge considered this discovery matter:

[9]         We are not persuaded by this submission. Although the motion judge did not undertake a distinct analysis under this provision, her conclusion that each of the appellants knew or ought to have known of the other elements in s. 5(1)(a) was sufficient to infer that she also concluded that the appellants knew or ought to have known that a proceeding would be an appropriate means to seek a remedy for their losses even before the 2011 press release about Dr. Frank.

Unfortunately, in making this point the Court quoted its decision in Lawless for the principle that discovery requires the prospective plaintiff to know the material facts necessary to make a claim.  Knowledge of the material facts of the claim does not include knowledge of the matter in s. 5(1)(a)(iv)—that a claim is an appropriate remedy to the loss.  It’s disappointing to see the Court of Appeal continuing to rely on Lawless, given the mischief it causes.

 

Ontario: There’s no special discovery test for professional malpractice

In March, I wrote approvingly of Justice Stinson’s discovery analysis in Brown v. Wahl.  The Court of Appeal recently upheld the decision.

The Court of Appeal’s decision is noteworthy for two reasons. First, the Court rejected the appellant’s argument that Lawless v. Anderson created a four-part test for discoverability in respect of professional malpractice claims:

[3]         Lawless was a medical malpractice case.  In describing when the plaintiff knew all the material facts required to discover her claim against the defendant, this court stated, at para. 30:

It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome.  She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible.  In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.

[4]         The appellant submits that, in the above-quoted passage, the Lawless court established a four-part test for determining when a prospective plaintiff may be said to have known the material facts necessary for bringing a negligence claim against a medical practitioner in a cosmetic surgery action.  This test establishes, according to the appellant, that such a claim is discovered by the prospective plaintiff only when he or she knows: i) of the harm alleged; ii) why it was wrong; iii) what action is required to correct the wrong; and iv) who was responsible.

[5]         Based on this suggested four-part test, the appellant argues that the motion judge erred by failing to properly or adequately analyze the evidence and apply it to the questions of when the appellant was positioned to determine “why” her dental treatment by the respondents was “wrong” and “what would have to be done to correct it”.

[6]         We reject this argument.

[7]         First, Lawless does not create a new four-part test for discoverability in respect of professional malpractice claims.  To the contrary, Lawless confirms, at para. 30, that the test for discoverability is when a prospective plaintiff “had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent”.  The Lawlesscourt’s reference, immediately preceding this comment, to the four factors relied on by the appellant reflects the application of this test to the evidence before the court in Lawless.

This was the correct response to a dubious argument.  Whatever the Ontario limitations regime may need, it’s not new discovery tests for specific claims.

Second, the Court followed its description of discoverability in Lawless.  This is problematic because it’s a description of the common law discoverability test, rather than the section 5 test in the Limitations Act.  I describe the mischief resulting from this confusion here.