[ 99] The Medical Act was passed to provide “special protection”
for physicians and to safeguard them from professional negligence
or malpractice claims: Miller v. Ryerson, supra, at p. 372 O.R.;
Hadley v. Allore, supra, at p. 211 O.R.; Martin v. Perrie, supra,
at pp. 50-51 S.C.R. The language of the statutes is very broad, and
the case law holds that it was meant to cover any cause of action
in any way based upon the relationship of doctor and patient,
regardless of the manner in which the cause of action is framed:
McBain v. Laurentian Hospital, supra, at para. 32.
[ 100] In Boase v. Paul, supra, which involved the comparable
limitation statutes protecting dentists, and where through mis-
take the defendant dentist extracted all of the plaintiff’s dis-
eased upper teeth and not just the one that the plaintiff wished
extracted, Justice Hodgins approved the definition of malprac-
tice from Mozley & Whiteley’s Law Dictionary (3rd ed.) (1908) as
“improper or unskillful management of a case by a surgeon, phy-
sician, or apothecary, whereby a patient is injured; whether it be
by neglect, or for curiosity and experiment”. Justice Hodgins
stated [at para . 19]:
But I think that, apart from definitions, the pith of the enactment is to
give protection to professional men who are registered members of the Royal
College of Dental Surgeons, after the lapse of six months, against liability
for mistakes, negligence or improper treatment of a patient if the cause of
action arose out of or in the course of professional services either requested
or rendered under an implied contract, or under a mistaken interpretation
of that express or implied contract.
[ 101] In the same case, Justice Middleton stated [at para. 22]:
I agree with my brother Hodgins that the statute operates to protect the
defendant against this action. I think the intention of the Legislature was
that any action should be brought within a limited period when it was in
any way based upon the relation of dentist and patient. If there is any
actionable wrong after that relationship is established, it falls under the
head of “negligence or malpractice”.
[ 102] The general limitation statute potentially applicable to
the plaintiffs’ claims was the Limitations Act, supra, which was
in force until it was replaced by the Limitations Act, 2002 which
provided a six-year limitation period for negligence. Section 45 of
the Limitations Act stated:
45(1) The following actions shall be commenced within and not after the
times respectively hereinafter mentioned: . . .
. . . . .
(g) an action . . . upon the case other than for slander, within six
years after the cause of action arose;
. . . . .