Dhaliwal v. Lindsay

Dhaliwal v. Lindsay Collection Decisions of the Court of Appeal Date 2010-07-09 Neutral citation 2010 ONCA 493 Docket numbers C51341 Judges MacPherson, James C.; Cronk, Eleanore Ann; Karakatsanis, Andromache Rhea Subject Civil Decision Content CITATION: Dhaliwal v. Lindsay, 2010 ONCA 493 DATE: 20100709 DOCKET: C51341 COURT OF APPEAL FOR ONTARIO MacPherson, Cronk and Karakatsanis JJ.A. BETWEEN Gurbaksh Kaur Dhaliwal, Devinder Kaur Dhaliwal, Harcharan Singh Dhaliwal, Gurmeet Singh Dhaliwal, and Jagtar Singh Dhaliwal Plaintiffs (Appellants) and David Ross Lindsay, Richard Steven Hart, Lloyd Colin Smith, Athanasios Harmantas, Jamie Stephen Cyriac and St. Joseph’s Health Centre Defendants (Respondents) Susan Chapman, for the appellants David Leonard and Keary F. Grace, for the respondents Heard and released orally: July 7, 2010 On appeal from the summary judgment of Justice Alison Harvison Young of the Superior Court of Justice, dated November 2, 2009. ENDORSEMENT [1] The appellants appeal from the order of Harvison Young J. granting summary judgment to the respondents and dismissing the appellants’ action in a medical malpractice case on the basis of a two-year limitation period in s. 4 of the Limitation Act. [2] The appellants contend that the motion judge erred by conflating the equitable principle of fraudulent concealment with the distinct doctrine of discoverability. [3] We do not accept this submission. In our view, the motion judge’s analysis of the intersection of these two principles in this case was entirely consistent with the current governing case law, including M.(K.) v. M. (H.), [1992] 3 S.C.R. 6 at paras. 58-61, Guerin v. The Queen, [1984] 2 S.C.R. 335 at para. 115, and Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.), at para. 28. [4] The possibility of a cause of action against the respondents with respect to Mrs. Dhaliwal’s treatment was discoverable when their counsel received the OHIP reports on December 7, 2005. Between that date and filing their statement of claim 28 months later on April 24, 2008, they did nothing, on the basis of the record before the motion judge, to investigate this potential cause of action. In these circumstances, the motion judge was correct to conclude that s. 4 of the Limitation Act applied. [5] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $5000 inclusive of disbursements and GST, if sought. “J. C. MacPherson J.A.” “E. A. Cronk J.A.” “Karakatsanis J.A.”