Rumsam v. Pakes – Limitation Period, Discoverability
*Rumsam v. Pakes 2019 ONCA 748
Limitations — Discoverability — Reasonable diligence — Plaintiff suing clinic and doctor who treated her for wrist injury for negligence in failing to advise her that follow-up x-ray was required — Plaintiff discovering by August 2013 at latest that x-ray report that recommended follow-up x-ray was reviewed by unidentified clinic doctor and not by defendant — Plaintiff moving to add that doctor as defendant in January 2017 — Motion judge erring in granting motion — Plaintiff
not exercising reasonable diligence after discovering claim against unidentified doctor as she took no steps to determine doctor’s identity for one year.
The plaintiff attended an urgent care clinic with a wrist injury in July 2007. She was assessed by Dr. P, who ordered an x-ray. Later that month, the clinic received a mailed copy of the x-ray report, which recommended a follow-up x-ray. That recommendation was not communicated to the plaintiff. Her pain worsened, and she required two surgeries. She reached the age of majority in June 2010. In May 2012, she commenced an action against the clinic and Dr. P claiming damages for negligence in failing to advise her of the recommendation for a follow-up x-ray. By August 29, 2013 at the latest, the plaintiff was aware that the x-ray report had been reviewed by an unidentified clinic doctor, and not by Dr. P. In January 2017, she moved to add Dr. K as a defendant on the basis that Dr. K had reviewed the x-ray report and had failed to advise and treat her. The motion judge found that the claim against Dr. K was not statute-barred and granted the motion. The defendants appealed.
Held, the appeal should be allowed.
The presumptive limitation period did not begin to run until the plaintiff turned 18 in June 2010, and would have expired in June 2012, but for the discoverability principle. By August 29, 2013 at the latest, the plaintiff knew that a second clinic doctor was involved in her care; the second clinic doctor knew about her x-ray findings; that doctor did not inform her of the recommendation to undergo a second x-ray; and as a result, she required two surgeries and suffered damages. The only thing she did not know by August 29, 2013 was the name of the second doctor. As of August 29, 2013, she was obliged to exercise reasonable diligence to secure the name of the second doctor in order to comply with s. 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. She failed to do so, as she did not make any inquiries to determine the identity of the doctor from August 29, 2013, when the limitation period began to run, until Dr. P’s examination for discovery in August 2014. Her claim against Dr. K was statute-barred.
 The test to determine whether the limitation period has expired on a particular set of facts is a question of mixed fact and law which attracts a standard of palpable and overriding error: Housen v. Nikolaisen,  2 S.C.R. 235,  S.C.J. No. 31, 2002 SCC 33, at para. 36.
 Section 5(1)(b) of the Limitations Act provides that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence”: Lawless v. Anderson,  O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, at para. 22 (emphasis added).
 The identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City) (2010), 104 O.R. (3d) 471,  O.J. No. 4686, 2010 ONSC 6034 (S.C.J.); and Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596,  O.J. No. 368, 2010 ONSC 318 (S.C.J.).
 However, the law does not require that a prospective plaintiff know the exact extent or type of harm suffered, or the precise cause of the injury: Brown v. Wahl (2015), 128 O.R. (3d) 588,  O.J. No. 5931, 2015 ONCA 778, at para. 15.
 Nor is it necessary to determine which of several persons is responsible. It is enough that there is a possible claim against them. In Coutanche v. Napoleon Delicatessen (2004), 72 O.R. (3d) 122,  O.J. No. 2746 (C.A.), at para. 26, for example, Lane J. for the court held that:
“As to the two drivers, Orsini and Palmer, it is clear that all the information about their identities and the statements made to the police, plus the latter’s report, were readily available with any degree of diligence, and were actually obtained by solicitor Kirkland, by early 1999. It is not necessary to answer the question of how and why the deceased went to the highway and walked on it in order to decide if there was a cause of action against one or both of these drivers for running him down. Nor was it necessary to determine which driver did it. It is highly likely that only a trial could answer that question. Perfect certainty is not necessary. The reasonable person would have known by the receipt of the police information in early 1999, or at the latest by the time Mrs. Coutanche reviewed the police report in September 1999, that there was a possible claim against these drivers. There is no room on the record before us for the application of discoverability to delay the commencement of the running of the limitation against the drivers for a sufficient period to bring the start of the limitation to February 22, 2000, two years before the commencement of the action.”
 Moreover, in Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd.,  O.J. No. 3338, 2010 ONCA 545, 322 D.L.R. (4th) 1, leave to appeal to S.C.C. refused  S.C.C.A. No. 365, Armstrong J.A. for the court clarified that having the precise name of a defendant is not required as long as the name can be ascertained by exercising reasonable diligence [at para. 19]:
“On February 17, 2000, Ms. Safai knew that she had fallen and injured her ankle. She knew that she likely had a claim for her injuries against the owner of the property. As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.”
 The due diligence requirement is not satisfied by waiting for someone else to advise who the correct defendant is: Klein v. G4S Secure Solutions (Canada) Ltd.,  O.J. No. 2750, 2016 ONSC 1930 (Div. Ct.), at para. 23.
 In this case, on August 29, 2013, Ms. Rumsam advised in writing that:
“On July 12  (the following day), a clinic physician other than Dr. Pake [sic] placed a telephone call to Rachel’s home number to advise her about the x-ray findings and the radiologist’s recommendation for a follow up x-ray.”
 As such, at least by that date, Ms. Rumsam knew that
(1) there was a second clinic physician involved in her care;
(2) the second clinic physician knew about her x-ray findings;
(3) that physician did not inform her of the x-ray findings and the recommendation to undergo a second x-ray; and as a result
(4) she required two surgeries and suffered damages.
 The only thing Ms. Rumsam did not know by August 29, 2013, was the name of the second clinic physician.
 As of August 29, 2013, Ms. Rumsam was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(1)(b) of the Limitations Act that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence”: Lawless, at para. 22 (emphasis added).
 Ms. Rumsam did not make any inquires to determine the author of the note or her involvement in Ms. Rumsam’s care from August 29, 2013, when the limitation period began, until Dr. Pakes’ examination for discovery on August 7, 2014.
 In any event, there is no reason to extend the two-year limitation period beyond August 29, 2015, as Ms. Rumsam has failed to provide evidence that she would not have identified Dr. Kargel earlier had she exercised reasonable diligence after becoming aware of the information by August 29, 2013. On the contrary, Ms. Rumsam did receive the information that identified Dr. Kargel, albeit it took approximately 18 months once the request was made. Even the undertaking regarding who wrote the “N/A” portion of the note was fulfilled within 23 months.
D. Summary of conclusions
 In conclusion:
(1) A claim must be brought within two years of a claim being “discovered”.
(2) A claim is discovered when the claimant first knew the injury occurred, that it was caused by an act or omission, that the act or omission was caused by the person against whom the claim is made, and that there was loss.
(3) The injury was sustained on July 11, 2007, so normally the limitation period would have expired on July 11, 2009.
(4) Given that Ms. Rumsam did not turn 18 until June 4, 2010, the presumptive limitation period did not begin to run until that date.
(5) The limitation period would have expired on June 4, 2012, but for the discoverability principle.
(6) By August 29, 2013 at the latest, Ms. Rumsam knew all of the material facts except the name of the “second clinic physician” in question.
(7) By August 29, 2013 at the latest, she was required to exercise reasonable diligence to get the name within the two-year period as she knew she likely had a claim against this person for her injuries, and August 29, 2013 was “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to” as set out in s. 5(1)(b) of the Limitations Act.
(8) The onus to prove reasonable diligence is on Ms. Rumsam.
(9) She failed to exercise reasonable diligence as no steps were taken for at least a year.
(10) As such, as the court held in Safai, there is no basis to extend the limitation period for more than two years as, from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a position to ascertain the name by reasonable diligence.
 There was a palpable and overriding error in the motion judge’s finding of mixed fact and law as (a) he did not address the fact that as of August 29, 2013, in her own materials, Ms. Rumsam provided evidence that she had knowledge of the material facts of the claim other than the name of the second clinic doctor;
(b) he erred in his application of s. 5(1)(b) of the Limitations Act, as he did not address the fact that Ms. Rumsam had an obligation to exercise reasonable diligence to obtain the name as of August 29, 2013 at the latest; and
(c) he did not address the fact that as of August 29, 2013, Ms. Rumsam failed to exercise reasonable diligence to obtain Dr. Kargel’s name.
 For these reasons, the appeal is granted. On the consent of both parties, costs of this appeal to Dr. Pakes and Huronia in the amount of $15,000.
*source: Ontario Reports