{"id":346,"date":"2015-11-23T23:47:53","date_gmt":"2015-11-24T03:47:53","guid":{"rendered":"http:\/\/limitations.ca\/?p=346"},"modified":"2015-11-23T23:49:21","modified_gmt":"2015-11-24T03:49:21","slug":"ontario-theres-no-special-discovery-test-for-professional-malpractice","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=346","title":{"rendered":"Ontario: There’s no special discovery test for professional malpractice"},"content":{"rendered":"

In March, I wrote approvingly of Justice Stinson’s discovery analysis in Brown v. Wahl<\/a><\/em>.\u00a0 The Court of Appeal recently upheld the decision.<\/p>\n

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

[3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Lawless<\/em> was a medical malpractice case.\u00a0 In describing when the plaintiff knew all the material facts required to discover her claim against the defendant, this court stated, at para. 30:<\/p>\n

It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome.\u00a0 She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible.\u00a0 In other words, the appellant had all of the material facts necessary to determine that she had prima facie<\/em> grounds for inferring that the respondent had been negligent.<\/p>\n

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[4]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The appellant submits that, in the above-quoted passage, the Lawless<\/em> 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.\u00a0 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.<\/p>\n

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[5]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 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 \u201cwhy\u201d her dental treatment by the respondents was \u201cwrong\u201d and \u201cwhat would have to be done to correct it\u201d.<\/p>\n

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[6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 We reject this argument.<\/p>\n

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[7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 First, Lawless<\/em> does not create a new four-part test for discoverability in respect of professional malpractice claims.\u00a0 To the contrary, Lawless <\/em>confirms, at para. 30, that the test for discoverability is when a prospective plaintiff \u201chad all of the material facts necessary to determine that she had prima facie<\/em> grounds for inferring that the respondent had been negligent\u201d.\u00a0 The Lawless<\/em>court\u2019s 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<\/em>.<\/p>\n<\/blockquote>\n

This was the correct response to a dubious argument.\u00a0 Whatever the Ontario limitations regime may need, it’s not new discovery tests for specific claims.<\/p>\n

Second, the Court followed its description of discoverability in Lawless<\/em>.\u00a0 This is problematic because it’s\u00a0a description of\u00a0the common law discoverability test, rather than\u00a0the\u00a0section 5 test in\u00a0the Limitations Act<\/a>.\u00a0 I describe the mischief resulting from\u00a0this confusion here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In March, I wrote approvingly of Justice Stinson’s discovery analysis in Brown v. Wahl.\u00a0 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: … Continue reading Ontario: There’s no special discovery test for professional malpractice<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[175,87,62,23,174],"class_list":["post-346","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-causing-mischief","tag-discoverability","tag-discoverability-doctrine","tag-ontario-act-s-5","tag-professional-malpractice"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/346","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=346"}],"version-history":[{"count":3,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/346\/revisions"}],"predecessor-version":[{"id":349,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/346\/revisions\/349"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=346"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=346"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=346"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}