I would award costs of the appeal to the appellant in the
amount of $12,500, inclusive of disbursements and HST. The
parties did not address costs of the motion below in the event the
appeal was allowed. If the parties cannot resolve that issue, they
may make brief written submissions, of no more than two pages,
within 15 days of the release of these reasons.
Morrison et al. v. Barzo D.C. et al.; Edwards et al.,
[Indexed as: Morrison v. Barzo]
2018 ONCA 979
Court of Appeal for Ontario, van Rensburg, D.M. Brown and B. W. Miller JJ.A.
December 5, 2018
Limitations — Discoverability — Plaintiff suing chiropractor in June
2013 for damages for injuries allegedly suffered during chiropractic
treatment in June 2011 — Defendant third partying two health care
providers who treated plaintiff in days following original injury —
Plaintiff moving to add third parties and another health care provider
as defendants in May 2016 — Plaintiff claiming that he was unaware
that he had claims against proposed defendants until third parties were
examined for discovery in 2015 — Motion judge erring in finding that
proposed claims were statute-barred — Motion judge failing to make
findings of fact as to when plaintiff actually discovered claims against
proposed defendants or ought reasonably have done so — Motion judge
erring in treating lack of due diligence as stand-alone ground for finding
claim statute-barred — Evidence on motion not supporting conclusion
that plaintiff ought reasonably to have discovered claim against
proposed defendants before third parties were examined for discovery.
The plaintiff commenced an action against a chiropractor in June 2013, claiming
that he suffered injuries during a chiropractic treatment in June 2011 as a result of
the defendant’s negligence. The defendant third partied two health care providers
who had treated the plaintiff in the days following the original injury — the plaintiff’s family doctor and a registered massage therapist — in May 2014. The third
parties were examined for discovery in May and June of 2015. The plaintiff
brought a motion in May 2016 to add those third parties and a nurse practitioner
in his family doctor’s practice as defendants. He claimed that he only discovered
that he had a claim against the proposed defendants when the two third parties
were examined for discovery. The motion judge dismissed the motion on the basis
that the claims were statute-barred. The plaintiff appealed.
Held, the appeal should be allowed.
The motion judge applied the wrong test in dismissing the motion. First, she did
not make findings of fact as to when the plaintiff knew of the matters listed in