s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B in relation to the
claims against the proposed defendants, or under s. 5(1)(b) as to when he ought
reasonably to have known of such matters. She was required to make those findings
on the evidentiary record before concluding that the plaintiff’s claims against the
proposed defendants had been discovered more than two years before the motion
was brought. Second, she pointed to the plaintiff’s failure to explain the steps he
had taken to investigate the potential claims against the proposed defendants and
concluded that the plaintiff had not discharged his burden to establish due diligence. While a plaintiff’s due diligence is potentially relevant to the question under
s. 5(1)(b) of the Limitations Act as to when a claim ought reasonably to have been
discovered, the failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground for finding that a claim is out of time. The motion
judge erred in failing to identify the key difference between the plaintiff’s claims
against the defendant and his claims against the proposed defendants. The claim
against the former was that he caused an injury during a chiropractic treatment,
which resulted in the plaintiff ultimately being diagnosed with cauda equina syndrome (“CES”). The core of the claim against the proposed defendants was that,
after that traumatic injury had already occurred, and before the plaintiff received
the CES diagnosis and emergency surgery, they contributed to or exacerbated the
plaintiff’s injuries in their approach to treating him and/or by failing to take more
immediate action to respond to the original traumatic injury. The plaintiff alleged
that the obligation to take immediate action arose when the proposed defendants
suspected CES or, in the case of the massage therapist, a spinal nerve injury.
He claimed that he was unaware that the proposed defendants suspected CES or
a spinal nerve injury until the 2015 examinations for discovery. The evidence
on the motion did not support a conclusion that the plaintiff ought reasonably to
have discovered the claims against the proposed defendants before the examinations for discovery.
Cases referred to
Arcari v. Dawson (2016), 134 O.R. (3d) 36,  O.J. No. 5069, 2016 ONCA
715, 53 M.P.L.R. (5th) 205, 271 A.C. W.S. (3d) 60 [Leave to appeal to S.C.C. refused
 S.C.C.A. No. 522]; Fennell v. Deol,  O.J. No. 1745, 2016 ONCA 249,
97 M.V.R. (6th) 1, 265 A.C.W.S. (3d) 1029; Galota v. Festival Hall Developments
Ltd. (2016), 133 O.R. (3d) 35,  O.J. No. 3906, 2016 ONCA 585; Lawless v.
Anderson,  O.J. No. 519, 2011 ONCA 102, 81 C.C.L. T. (3d) 220, 276 O.A.C.
75, 198 A.C.W.S. (3d) 333; Mancinelli v. Royal Bank of Canada,  O.J.
No. 3129, 2018 ONCA 544, 24 C.P.C. (8th) 1, 293 A.C. W.S. (3d) 413; Thompson v.
Dr. Sehgal,  O.J. No. 2478, 2012 ONSC 3258 (S.C.J.)
Statutes referred to
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.], (1)(a), ( ii), ( iii), (b),
(2), 21, (1)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 5.04(2)
APPEAL from the judgment of Mullins J., 2017 ONSC 4919
dismissing a motion to add defendants.
Joseph Obagi and Elizabeth Quigley, for appellants.
Avi Sharabi, for respondent Cristina Edwards.