Limitations - Repair Efforts Can Delay Tolling [Lim Act s.5(1)(a)(iv)]
Brown v. Baum (Ont CA, 2016)
This case addresses an important element of the general two-year limitations period commencement test, that of "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it" [s.5(1)(a)(iv)]. It was a medical malpractice case where the parties, after the cause of the injury was known, nonetheless engaged in reparative surgeries. The lawsuit was commenced more than two years after first knowledge of the injury and it's cause.
The court of appeal held held that the time use for repair attempts did not, in the circumstances of this case, count for the limitations calculation. The court stressed that application of this principle was very conditional on the circumstances of each such case, however in my opinion the case is useful to extend the running of the limitation period in any case where negotiation, mitigation or repair efforts are undertaken after injury and it's causation is known:
 The appellant [defendant] argued that the limitation period commenced either at the initial surgery in March 2009 or at the latest by July 2009, and that even if the respondent had wanted to refrain from commencing an action until she stopped seeing the appellant, there would have been time for her to have done so following the final consultation visit in June 2010. In other words, the respondent had two years to continue to be treated by Dr. Baum before she had to commence the action against him.
 The motion judge rejected this submission, pointing out that the limitation period does not commence until the injured party first knows that an action is an appropriate remedy. Therefore, the issue was whether, during the period when her doctor was trying to fix the problems she felt that he had caused, she knew it was appropriate to sue him. In considering that issue, he referred to this court’s decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652, at para. 34, where Sharpe J.A. discussed the meaning of “appropriate” in the context of s. 5(1)(a)(iv):
… I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. The motion judge concluded that on the record in this case “[i]t would be unreasonable and inappropriate…to start the two-year limitation clock running against Ms. Brown while the defendant’s good faith efforts to achieve a medical remedy continued.” In so finding, he emphasized that he was not finding as a rule that the limitation period will not commence until the doctor-patient relationship ends in every case where the relationship is ongoing after the injury, loss or damage has occurred – only that it might not, depending on the facts and circumstances of each case.
 The motion judge’s application of the subsection to the facts on this record was particularly apt: he concluded that because the doctor was continuing to treat his patient to try to fix the problems that arose from the initial surgery, that is, to eliminate her damage, it would not have been appropriate for the patient to sue the doctor then, because he might well have been successful in correcting the complications and improving the outcome of the original surgery. On the evidence of Dr. Brown, the specialist who provided Ms. Brown with a second opinion, by September 2010, Dr. Baum in fact was successful in ameliorating Ms. Brown’s damage.
 Second, the appellant submits that the motion judge gave the term “appropriate” an “evaluative gloss” rather than applying the meaning of “legally appropriate”, contrary to this court’s decision in Markel. Again I do not agree. The motion judge was entitled to conclude on the facts of the case that Ms. Brown did not know that bringing an action against her doctor would be an appropriate means to remedy the injuries and damage she sustained following her breast reduction surgery until June 16 2010, after Dr. Baum performed the last surgery.
 Further, I am satisfied that the test in s. 5(1)(b) is met. A reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated.
 I would also add this observation: the Markel case involved insurance transfer payments and considerations of the appropriateness of possibly delaying the commencement of legal action in order to negotiate a settlement. The considerations for when it is appropriate for a patient to delay suing her doctor when that doctor is continuing to treat her are quite different. I certainly agree with the motion judge that there are many factual issues that will influence the outcome. The fact that a number of recent cases (for example, Tremain v. Muir (Litigation guardian of), 2014 ONSC 185 (CanLII), Chelli-Greco v. Rizk, 2015 ONSC 6963 (CanLII), Novello v. Glick, 2016 ONSC 975 (CanLII), 2016 ONSC 975 (Div. Ct.), and Barry v. Pye, 2014 ONSC 1937 (CanLII)) have considered this very issue with different outcomes is a testament to this approach.
 In my view, the motion judge made no error in his approach to this issue. He considered all of the relevant case law, and applied it to the facts. He was entitled to find that Ms. Brown did not know that it was appropriate to sue Dr. Baum until after the last surgery he performed to try to correct the complications and improve the outcome of the original surgery. As the motion judge observed, it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue.