Brown v. Wahl, 2015 ONCA 778

This is an appeal from the summary judgment granted by a motion judge dismissing the appellant’s negligence action against the respondents on the basis that it was statute-barred by operation of the 2-year limitation period established by s.4 of the Limitations Act¸ 2002, S.). 2002, c. 24, Sched. B (the “Act”).

The Court of Appeal rejected the appellant’s argument that the decision rendered in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75 created a new four-part test for discoverability in respect of professional malpractice claims. To the contrary, the Court held that Lawless confirms 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 appeals court held that there was no error in the discoverability analysis conducted by the motion judge. His findings amply supported his conclusion that the appellant knew sufficient facts at the end of her consultation with her new dentist on December 13, 2011 on which to base an allegation of negligence against the respondents. This was sufficient to establish that the appellant discovered her claim no later than December 31, 2011 and, consequently that the limitation period began to run on the same day. The Court of Appeal, citing the principal laid out in Peixerirov. Haberman, [1997] 3 S.C.R. 549 that the law of discoverability does not require that a prospective plaintiff know the exact extent or type of harm he or she has suffered, or the precise cause of his or her injury, in order for a limitation period to run, agreed with the motion judge’s conclusion that the appellant’s actions against the respondents were statute-barred because they were commenced in January 2014, after the expiration of the two-year limitation period under the Act on December 13, 2013.

The Court also rejected the appellants argument that the motion judge erred in finding that an expert opinion was unnecessary in this case in order for the appellant to conclude that there was a likelihood of negligence of some kind by one or both of the respondents. The Court noted that there is an important difference between proof of the discovery of a claim for the purpose of the commencement of a limitation period under the Act and proof of the breach of a duty of care, the latter of which requires expert evidence to establish.The challenge to the motion judge’s decision therefore failed and the appeal was dismissed.

What the Insurer Should Know

Once the plaintiff has knowledge of sufficient facts to on which to base an allegation of negligence, the limitation period should commence. The plaintiff does not require the exact extent or type of harm sufferend or the precise cause of the injury. The plaintiff does not always require an expert report before the limitation period begins to run: there is an important difference between the proof of the discovery of the claim and the proof of a breach of the duty of care.

Mitch Kitagawa	Kristina Kang