Medical Malpractice Claim: Application of transition provisions in new Limitations Act
St. Jean (Litigation guardian of) v. Cheung, [2008] O.J. No. 4862 (ONCA) is a medical malpractice claim where the Plaintiff, after having become severely hypoglycaemic shortly after his birth, suffered severe brain damage allegedly as a result of a failure to properly treat the hypoglycaemia. Twenty years after his birth, a claim was commenced against the doctor and hospital who cared for the Plaintiff’s mother prior to his birth. The primary allegation was that as a result of the failure to diagnose and treat his mother’s gestational diabetes, the Plaintiff was born severely hypoglycaemic. Close to two years after the claim was commenced, Plaintiff’s counsel obtained a medical report indicating that the likely cause of the Plaintiff’s injury was the protracted hypoglycaemia that followed his birth which was inadequately treated. Further, the report stated that had the hypoglycaemia been treated more aggressively, the Plaintiff would not have suffered injury. Thus, a second action was commenced against the medical professionals who cared for the Plaintiff after his birth. The defendants in the second action successfully had the action struck on the basis that the limitation period had expired.
The Ontario Court of Appeal reversed the motion judge’s decision. The decision involved the application of s. 24(2) of the new Limitations Act. It was clear that the second action was based on acts or omissions which took place before the effective date of the new Act (Jan. 1, 2004). The dispute was over whether a proceeding had already been commenced prior to the effective date. If yes, then s. 24(2) applied to the second action. The Plaintiff argued that the first action counted as a proceeding. However, the Appeal Court rejected this since the first action did not concern any acts or omissions of the defendants in the second action. Thus, s. 24(2) was found to apply. The next issue was the correct application of s. 24(5) of the new Act. If the claim was discovered prior to the effective date, then the old limitation period applied. If it was not discovered before the effective date, then the new period applied and it would be assumed that the act or omission occurred on the effective date. The new defendants argued that the claim was not discovered prior to the effective date since the Plaintiff was mentally incompetent and could not have discovered the claim on his own. The Appeal Court disagreed and found that the Plaintiff’s litigation guardian had in fact discovered the claim before the effective date. The Court made a clear distinction between a litigation guardian’s ability to “discover” a claim vs. the triggering of the limitation period. It is settled law that even though the litigation guardian had discovered the claim, this did not trigger the limitation period in cases where the Plaintiff is incapacitated. The discovery of claims and the commencement of limitation periods are different, though related, notions and should not be conflated. Thus, the Court found the limitation period in the old Limitations Act applied. Since the old Act suspended the triggering of the limitation period due to mental incapacity, the second action was brought in time.