Judge erred in deciding a disputed fact to strike medical negligence claims: Court of Appeal

The Court of Appeal has allowed a number of medical negligence claims to proceed, finding a motion judge inappropriately decided on a disputed fact when granting the defendants’ motion, under Rule 21 of the Courts of Justice Act, to strike the claims.

“The claim can only be struck if the pleadings, on their face, don't disclose a reasonable cause of action,” says Iain MacKinnon, who acted for the estate of Garry Beaudoin and his family, the plaintiffs in the case. “The motions judge went beyond that and started wading into fact-finding, rather than just deciding that question of law. So he strayed too far.”

“Rule 21 motions are very limited in their scope and the Court of Appeal decision reminds courts below that judges should not overstep their bounds… and they have to accept as true what is pleaded.”

MacKinnon practises corporate/commercial litigation, media/intellectual property law and personal injury at Linden & Associates. He represented the Beaudoin family with co-counsel Justin Linden and Michael Lacy.

Garry Beaudoin died on Jan. 9, 2015 of a blocked mesenteric artery. He had first gone to the hospital a week earlier, complaining of lower-back and abdominal pain, and had been diagnosed with degenerative disc disease. He returned to the hospital twice more, with nausea, vomiting and constipation added to his symptoms. On his second visit he had a CT scan – a series of x-rays from different angles, creating a cross-sectional image – which had not indicated a serious problem in his small bowel, according to doctors and radiologists. But he was given another CT scan on Jan. 5, and this time it was clear he was suffering from bowel ischemia: the slowing or stoppage of blood supply. By the time the ischemia was diagnosed, it was too late.

According to their pleadings, Beaudoin’s family paid the hospital to be given his full medical history in March of 2015, but what they received excluded the CT scan from his second visit. That image should have shown there was a blockage of Beaudoin’s mesenteric artery, the treatment of which would have saved his life had the doctors not missed it at the time, said the appellants. But they did not see that CT scan until spring 2017, when their lawyer contacted the hospital.

According to s. 38(3) of the Trustee Act, certain actions on behalf of a deceased person must be brought within two years of their death. But the limit does not apply if the defendant fraudulently concealed the information that would lead to a cause of action.

“If there's concealment of a piece of information, it extends the limitation period to the time when you discover that information,” says MacKinnon.

Shortly before the appellants obtained the CT scan, they had issued a statement of claim alleging negligence against the hospital and the doctors who treated Beaudoin. In the statement of defence, the respondents said the action was statute-barred because it had come two years and three months after Beaudoin’s death. Once the appellants had the CT scan, they amended their claim, pleading the respondent’s fraudulent concealment tolled the limitation period.

The respondents moved under Rule 21.01(1) of the Courts of Justice Act to dismiss the action as statute barred, which was granted in part. The motion judge found there was no causal link between their failure to sue within the limitation period and the fraudulent concealment of the CT scan, so the plaintiffs could not rely on that concealment to get around the limitation period. The appellants had also made a claim of breach of contract and breach of the Personal Health Information Protection Act, and those the motion judge allowed to continue.

The defendants had argued that, despite not having the original CT scan, the appellants must have known about the hospital missing the blockage at the time of their original statement of claim, otherwise they would not have known there was a negligence claim to be had.

MacKinnon said he and his colleagues had immediately issued a claim when the family consulted them. They made “boilerplate allegations” of negligence, without yet knowing fully the details. Later, Linden noticed the medical records the hospital gave the family were missing the first CT scan.

“It was impossible for them to know, or any lawyer even to know, that they had a claim based on missing the blockage that was indicated on the CT scan without the actual CT scan itself,” says MacKinnon.

The appellants appealed the motion judge’s ruling. The Court of Appeal found that in ruling on the connection between fraudulent concealment and the elapsed limitation period, the motion judge had erred by deciding on a disputed fact. On a Rule 21.01(1)(a) motion, the pleadings should be accepted as true, unless “patently ridiculous or manifestly incapable of proof,” said the Court.