Chamberlain v. Matanaj

2026 BCSC 421 Chamberlain v. Matanaj IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chamberlain v. Matanaj, 2026 BCSC 421 Date: 20260310 Docket: S236180 Registry: Vancouver Between: Karen Evelyn Chamberlain Plaintiff And Dr. Ferdinand Matanaj Defendant Before: The Honourable Mr. Justice Milman Oral Reasons for Judgment Counsel for the Plaintiff: D.O. Shane Counsel for the Defendant: R. Wood Place and Date of Summary Trial: Vancouver, B.C. March 2, 2026 Place and Date of Judgment: Vancouver, B.C. March 10, 2026 I. Introduction [1] This is an application by the defendant in this medical negligence action seeking an order dismissing the claim by way of summary trial, on the basis that the governing limitation period had expired before the plaintiff commenced the action. [2] The parties agree, as do I, that the matter lends itself to summary disposition. In particular, I am able to make the factual findings needed to resolve the issue and it would not be unjust to do so. Granting judgment on the limitation issue will either end the action entirely now, if the application succeeds, or conversely, if it does not, it will at least narrow the issues that the parties will have to address at trial. There is authority for summarily resolving limitation defences in actions of this kind in these circumstances: Gichuru v. Pallai, 2013 BCCA 60; Olenga v. Royal Columbian Hospital, 2018 BCCA 349. II. Chronology of Relevant Events [3] The plaintiff, Karen Evelyn Chamberlian, was born in 1964 and is now 61 years old. She has a history of chronic back pain and left leg pain extending back to 2009. [4] In an effort to address those issues, her family doctor referred her to a neurosurgeon, Dr. David Omahen, in 2011. Dr. Omahen tried to improve her condition by performing two discectomies, the first of which took place on June 12, 2012. Initially, that first operation appeared to have succeeded. Her pain abated and her condition stabilised for the next several years. However, in 2015 she suffered a relapse which led Dr. Omahen to perform a second discectomy on April 30, 2015. That operation was unsuccessful in alleviating Ms. Chamberlain's ongoing pain. An MRI taken after that second operation showed a collapse of the L5-S1 disc space. [5] Following the second operation, Dr. Omahen told her that he could no longer help her and that her only real option was a spinal decompression and fusion operation, which involved the insertion of screws and rods into her vertebrae. He did not perform that kind of procedure himself, so he referred her to another neurosurgeon, the defendant, Dr. Ferdinand Matanaj, for that purpose. [6] At their initial meeting on May 5, 2017, Dr. Matanaj told Ms. Chamberlain that the procedure carried with it certain risks, including a risk of nerve injury, chronic pain, and the need for further surgeries, among others. [7] Armed with that advice, she opted to go ahead with the procedure. In the event, Dr. Matanaj was to perform not just one but three operations, all at Royal Inland Hospital in Kamloops and all within the span of a few days. [8] The first operation took place on February 1, 2021. At that time, Dr. Matanaj inserted two screws at the L5-S1 site that was the source of Ms. Chamberlain's pain. She woke up after that operation with severe pain in her left leg. A post-operative CT scan showed that the two screws were in contact with a nerve root. After reviewing that image, Dr. Matanaj told Ms. Chamberlain that he would need to perform a second operation to reposition those screws. Ms. Chamberlain consented to this. [9] That second operation took place later that same day. For reasons that are not explained in the record before me, Dr. Matanaj repositioned only one of the two screws. The other was left where it was. [10] Following the second operation, Ms. Chamberlain was transferred back to her community hospital in Williams Lake. On the following day, February 2, 2021, she was again in severe pain. Her family doctor, Dr. Francina van der Merwe, came to see her and, in response to the pain she was experiencing, ordered another CT scan. That image revealed that one of the screws remained in contact with the nerve. [11] Ms. Chamberlain was made aware of that fact at that time. She testified when she was examined for discovery that she understood at that time that the screw should not have been placed in that location. [12] Ms. Chamberlain was transported back to Royal Inland Hospital where, on February 6, 2021, Dr. Matanaj performed his third operation on her. During that third operation, he removed all of the hardware that he had previously installed. [13] As she was recovering from these operations over the next several weeks, Ms. Chamberlain received more bad news. [14] The first of those revelations is recorded in a journal that she kept during this period. Her entry for March 10, 2021, indicates that she was waiting at that time to hear from Dr. Matanaj about an ultrasound appointment. She attended an appointment with Dr. van der Merwe who told her that she was sending her to Kamloops to see a neurologist because Dr. van der Merwe was "concerned that the nerve is badly damaged". [15] Her journal indicates that there was another appointment with Dr. van der Merwe on March 24, 2021. On that occasion, they "talked about surgery" and Dr. van der Merwe told her that, as far as she could see (presumably from the imaging that had since been done), the "fusion is not there". According to the journal entry, "Dr. Matanaj removed the hardware and left me like defunked". [16] When she was examined about that journal entry on discovery, Ms. Chamberlain testified that by this she meant that she "just felt broken" and that she "was not normal anymore." She also acknowledged during that testimony that she was concerned by that time that Dr. Matanaj had not provided her treatment at the expected standard of care. [17] Ms. Chamberlain went to Kamloops to see a neurologist, Dr. Natalja Tchajkova, for nerve testing on April 7, 2021. At that time, Dr. Tchajkova told Ms. Chamberlain that she had Complex Regional Pain Syndrome. Dr. Tchajkova prescribed prednisone, which appears from subsequent journal entries to have improved Ms. Chamberlain's pain. Ms. Chamberlain's journal entry for April 7, 2021 states as follows: Kamloops for nerve testing. Dr. says I have Complex Regi[o]nal Pain Syndrome. Needs to be treated w[ith] prednisone 50mg in huge doses to get it better before the bones start getting damage[d] [18] On April 19, 2021, she had what appears to have been her last interaction with Dr. Matanaj. Ms. Chamberlain's note of her telephone call with him on that date indicates that he told her at that time, among other things, that: a) he had removed the screws and rods; b) there was no fusion; c) there was decompression; d) he had removed bone and scar tissue; e) he had performed a "compassionate surgery"; and f) she should have an MRI and nerve testing done at six and 12 months. [19] In a separate journal entry on that date, she described her telephone call with Dr. Matanaj as "very informative and emotional". She noted that she did not know what to do now because she would not be going back to work. The entry concludes with the following observation: "There is no fusion. So all of this trauma for nothing." [20] In her two affidavits sworn in opposition to the present application, Ms. Chamberlain deposed that Dr. Matanaj also told her on that occasion that her pain "might improve over the next 6 to 12 months". [21] Following that telephone call with Dr. Matanaj, it appears that Ms. Chamberlain began looking elsewhere for advice and assistance in relation to the treatment he had provided her. [22] On May 5, 2021, she made a note in her journal indicating that she was contemplating lodging a complaint with the College of Physicians and Surgeons of BC (the "College"). A second entry dated May 21, 2021, indicates that her letter of complaint to the College was by then mostly finished. The letter was actually delivered to the College on September 28, 2021. [23] When asked at her examination for discovery why she had lodged that complaint, she responded as follows: A: Because I under - -- his treatment of me was not right. I asked him to - specifically to do another CT scan because my foot was swelling up, the pain was excruciating. The next thing I know I'm on a gurney and leaving the hospital in an ambulance. Q: Oh, I see. You're talking about on February 2nd after the second surgery. This is what you're talking about. Okay. A: And then - like, I understand the risks of having surgery. To be traumatized like that and not dealt with properly, that's why I filed the complaint. Q: Thanks. A: It wasn't right. [24] In her affidavit, she explained her reason for taking that step as follows: so that I could get their thoughts on the performance of Dr. Matanaj. I was upset that I had gone through three surgeries and still did not have a fusion. I was upset with the way I had been shuffled around at the time of the surgeries, and the way Dr. Matanaj had ignored my left leg complaints between the second and third surgery. I wanted them to review the matter. [25] In May 2021, Ms. Chamberlain referred herself to a mental health clinic. The clinic's intake form dated May 10, 2021, contains the following entry, among others, under the heading "REASON FOR REFERRAL": Karen had back surgery in February and she said that it was "traumatizing" because the surgeon permanently damaged her back. She said that she should have been back to work by now, but it is not possible. Karen said, "Until this ordeal I was going to work Monday to Friday, I was a fully functioning member of the community." She said, "I can see my retirement slipping away because some idiot decided " Client was unable to complete her sentence because she became tearful. [26] Ms. Chamberlain has deposed that on June 6, 2021, she arranged "to see another surgeon for a second opinion on whether there was anything else that could be done, such as further surgery, to improve my left leg pain." [27] While awaiting that second opinion, she continued to consider other avenues of recourse. An entry dated June 7, 2021, in her journal noted that she had sent "contract to lawyers". On August 18, 2021, she consulted with a lawyer who told her that he could not help her and that she should instead make a complaint to the College. [28] On January 7, 2022, Ms. Chamberlain received a preliminary report from Dr. Charles Fisher, the orthopedic surgeon to whom she had been referred for the second opinion she had asked for in June 2021. Under the heading "Assessment and Plan", he directed her to obtain more up-to-date medical imaging of various kinds, following which he would "re-evaluate her to see if any further surgery is indicated and what the overall prognosis would be." [29] After obtaining and reviewing that imaging, Dr. Fisher spoke to Ms. Chamberlain by telephone on April 5, 2022. On that occasion, he told her that he had "no further recommendations" for her. He added that there was, in his view, "certainly no need for further surgery." [30] In the process of investigating Ms. Chamberlain's complaint, the College obtained two reports from another neurosurgeon, Dr. Richard Reid. Dr. Reid's first report is dated December 1, 2022, and was provided to Ms. Chamberlain under cover of a letter dated January 24, 2023. On May 4, 2023, Dr. Reid delivered a second report to the College in response to its request that he clarify if he believed that Dr. Matanaj had met the applicable standard of care in his treatment of Ms. Chamberlain. That second report was forwarded to Ms. Chamberlain at some point during the summer of 2023. [31] In those reports, Dr. Reid expressed the view that Dr. Matanaj had indeed failed to meet the applicable standard care in various ways, one for each of the operations he performed on Ms. Chamberlain, as follows: a) in relation to the first operation, by having selected the wrong operative procedure; b) in relation to the second operation, by having left one of the two malpositioned screws in place; and c) in relation to the third operation, by removing all of the hardware previously installed, instead of repositioning the malpositioned screw. [32] In Dr. Reid's opinion, because of these errors, Ms. Chamberlain has been "left with a major decompression on the left side at L5S1 without any instrument support". He offered the following prognosis: Only time will tell what happens to this segment however in all likelihood it will collapse further and potentially shift. [33] Ms. Chamberlain commenced this action on September 7, 2023. III. Legal Framework [34] Dr. Matanaj seeks relief under s. 6(1) of the Limitation Act, S.B.C. 2012, c. 13 [Act]. [35] That provision states that, subject to certain exceptions that do not apply here, "a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered". [36] Pursuant to s. 8, a claim is generally said to have been "discovered" for that purpose: on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. [37] The leading case interpreting these provisions and the parallel legislation in other provinces is Grant Thornton LLP v. New Brunswick, 2021 SCC 31. [38] In Rooney v. Galloway, 2024 BCCA 8, the Court of Appeal held that the principles set out in Grant Thornton are applicable in British Columbia as well, despite the differences in the wording of the Act's provisions, particularly s. 8(d), compared to the parallel legislation in the other provinces that was under consideration in that case. [39] The Court of Appeal summarised those principles as follows, at para. 198: · "[A] claim is discovered when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's part can be drawn. It follows from this standard that a plaintiff does not need knowledge of all the constituent elements of a claim to discover that claim" (para. 3). · The "material facts are generally set out in the limitation statute This list is cumulative, not disjunctive. For instance, knowledge of a loss, without more, is insufficient to trigger the limitation period" (para. 43). · Both direct and circumstantial evidence can be used to assess the plaintiff's state of knowledge; a plaintiff "will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. Suspicion may trigger that exercise" (para. 44). · The plaintiff must "be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known"; this asks "whether a plaintiff 'had all of the material facts necessary to determine that [they] had prima facie grounds for inferring [liability on the part of the defendant]' (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583 at para. 7 [)]"; "[a] plausible inference is one which gives rise to a "permissible fact inference" (para. 45). · Plausible inference means knowledge that is "more than mere suspicion or speculation" but less than "certainty of liability", "perfect knowledge", or "perfect certainty" (para. 46). This standard is less than the "knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim" (para. 47). · "The standard cannot be so high as to make it possible for a plaintiff to acquire the requisite knowledge only through discovery or experts By the same token, the standard is not as low as the standard needed to ward off an application to strike a claim. What is required is actual or constructive knowledge of the material facts from which a plausible inference can be made that the defendant acted negligently" (para. 48; emphasis added [by the Court of Appeal]). IV. The Parties' Arguments [40] Both sides focused their submissions on s. 8(d) of the Act. [41] In arguing that the claim is time-barred, Dr. Matanaj says that Ms. Chamberlain had the requisite knowledge of the matters set out in s. 8 by no later than March 2021. Her possession of that knowledge by that time is demonstrated, he says, by her journal entry on March 24, 2021, and her associated testimony on discovery. That evidence reveals, in his submission, that she had the requisite knowledge by then of the material facts justifying the commencement of a legal action. Those facts included her belief that his treatment of her did not meet the applicable standard of care and had left her lumbar spine in a permanently damaged state. That Ms. Chamberlain believed that damage to be permanent is, in his submission, revealed by the intake assessment of the mental health clinic dated May 10, 2021. Indeed, he says, that knowledge moved her to consult with a lawyer and to complain to the College about those things. It follows, he says, that the limitation period expired two years later, by no later than the spring of 2023. [42] Ms. Chamberlain disagrees. She submits that she lacked the requisite knowledge to justify bringing an action, both in relation to the negligence of Dr. Matanaj and the nature and extent of her resulting injury, until she received the final reports of Dr. Fisher and Dr. Reid in April 2022 and May 2023, respectively. Although she acknowledges that she had formed a belief before then that Dr. Matanaj's treatment had not met the applicable standard of care, her complaint at that time was about the pain she had experienced immediately following the operations in February 2021 and the fact that they had left her no further ahead. In the spring of 2021, her understanding of her long-term prognosis was, she says, informed by Dr. Matanaj's advice to her on April 19, 2021 that her pain might improve over the coming year and the possibility that her condition might yet be rectified by another round of surgery. It was, she says, only when she received the final reports of Dr. Fisher and Dr. Reid that those hopes were dashed, the true nature of Dr. Matanaj's negligence and its consequences were revealed, and consequently that a legal action became justified. V. Discussion [43] It is common ground that Ms. Chamberlain was of the view by no later than March 2021 that the treatment she had received from Dr. Matanaj did not meet the applicable standard of care and had caused her harm. Insofar as that complaint forms the basis for the present action, the claim would be time-barred for having been brought beyond the governing two-year limitation period. [44] As Dr. Matanaj argues, the running of the limitation period will not be tolled while the plaintiff waits to obtain a confirming expert report. That was the conclusion of the Court of Appeal in Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234 (C.A.), as cited in Thomas v. Vancouver Coastal Health Authority, 2006 BCSC 422. [45] Karsanjii was, like this case, about an operation that had "backfired totally". In Thomas, Pitfield J. relied on the following dicta of Taylor J.A. in Karasanji, as quoted at para. 18 of Thomas: I have concluded that where, as here, the fact that injury has been suffered - surgery which "backfired totally" - is known to the prospective plaintiff, and where a reasonable person in his position would have appreciated that this may reasonably have resulted from a breach of duty on the part of a person whose identity is known to the prospective plaintiff, and where the fact that it was so caused could reasonably be discovered by obtaining advice available to the prospective plaintiff (even though the assistance of a lawyer or other intermediary might be required in order to obtain such advice), then the relevant "facts" should be regarded as falling within his "means of knowledge" for the purpose of s. 6(3)(i) [now s. 6(4)]. I say this because to hold that time does not start to run in such circumstances until the prospective plaintiff happens to receive expert advice confirming that the relevant breach of duty is a possible explanation for the problem -- let alone a probable or likely explanation -- would in my view unreasonably expose prospective defendants to "stale" claims. [46] However, this case is distinguishable from Karsanjii, and the cases like it, in several important respects. [47] In this case, Ms. Chamberlain's original complaint was that the first operation had "backfired" because Dr. Matanaj had inserted the screws in the wrong position. She believed that because of that mistake, she had to undergo two more painful operations, after which she was left no further ahead (in her words, "all this trauma for nothing"). The complaint to the College that she prepared between May and September 2021 and her consultation with the lawyer on August 18, 2021 were both apparently animated by that belief. [48] Although she believed at the time that the improper positioning of the screws indicated negligence on Dr. Matanaj's part, that it is not one of the alleged mistakes that form the basis of her claim in this action. Likewise, the consequences that she understood to have flowed from that mistake (namely, the pain associated with having to endure two more operations and transport between hospitals in the interim) were essentially in the past and were among the risks that Dr. Matanaj had warned her about beforehand. [49] Relying on the statement attributed to her in the intake form of May 10, 2021, Dr. Matanaj urges me to find that the current claim had indeed been discovered by May 2021 because she believed at that time that her spine was permanently damaged as a result of the operations. [50] In response to that evidence, Ms. Chamberlain has deposed that although she does not remember the conversation with the intake nurse on May 10, 2021, she did not hold that belief at that time. There is other evidence supporting her version of events. [51] In particular, she had reason to believe that there may be improvement in her condition over the coming year because Dr. Matanaj told her so himself on April 19, 2021. That advice makes this case similar to Borek v. Hopkins, 2020 BCSC 304, in which it was held that the limitation clock did not begin to run while the plaintiff was still being treated by, and receiving encouragement from, the defendant. [52] In addition, Ms. Chamberlain has deposed that until she got the second, post-imaging opinion from Dr. Fisher one year later, on April 5, 2022, she believed that another surgical intervention might be available to address her condition. [53] Both of those beliefs would have undermined the justification for commencing a court action at any time prior to September 7, 2021. [54] It follows that Dr. Reid's opinion did not serve merely to "confirm" Ms. Chamberlain's earlier beliefs about Dr. Matanaj's negligence, as in Karsanjii. Rather, in this case, the claim that has since been brought rests on an entirely new footing, involving different allegations of negligence leading to different, and more serious, consequences. [55] In summary, I am satisfied that Ms. Chamberlain did not have the means available to her to know about those new negligent acts and their consequences at any time prior to September 7, 2021. I have therefore concluded that the claim she is now advancing in this action was "discovered" for the purpose of s. 6 of the Act only after September 7, 2021, which means that the limitation defence must be dismissed. VI. Disposition [56] Having arrived at that conclusion, I am granting partial judgment in the action dismissing the limitation defence and remitting the balance of the claim to the trial list, with costs to Ms. Chamberlain in the cause. "Milman J."