MacMillan v. McDermid
66 O.R. (3d) 632
 O.J. No. 3429
Court File No. 98-BN-08127
Ontario Superior Court of Justice
August 27, 2003
Limitations — Discoverability — Defendant bringing motion for summary judgment dismissing action as statute-barred by s. 89(1) of Regulated Health Professions Act — Defendant contending that discoverability rule having no application as plaintiff admitted having knowledge within limitation period of facts in support of his claim — Plaintiff submitting that he was incapable of dealing with problem within limitation period as result of negative psychological impact on him of defendant’s alleged misconduct — Motion for summary judgment granted — Discoverability rule not containing requirement of unimpaired volition on part of plaintiff in addition to knowledge — Evidence not indicating that plaintiff was clinically incapable of dealing with defendant’s alleged misconduct at relevant time — Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2, s. 89(1).
The plaintiff was a patient of the defendant psychotherapist between 1985 and 1994. In 1998, the plaintiff brought an action against the defendant alleging that the defendant made unsolicited sexual advances to the him. The defendant brought a motion pursuant to rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [page633] for summary judgment dismissing the action as statute-barred, as it was not brought within one year following the date when the plaintiff knew or ought to have known the facts on which the negligence or malpractice was alleged. The defendant relied on the cross-examination of the plaintiff on his affidavit, which indicated that the plaintiff was aware by early 1993 that the defendant’s conduct was improper and that, as a result of that conduct, he was damaged and required remedial therapy. By his own admission, the defendant submitted, the plaintiff had the requisite knowledge of the facts upon which the claim was based over four years before the issuance of the statement of claim. The plaintiff submitted that the negative impact of the alleged misconduct on his mind prevented him from exercising the due diligence expected of an aggrieved party seeking redress through the courts. Essentially, he claimed that he was so traumatized by his concerns that he might be gay that he was prevented from taking legal action.
Held, the motion should be granted.
The key words in s. 89(1) of the Act and in cases on the discoverability rule refer to the plaintiff’s knowledge of the facts which form the foundation of his claim. There is no requirement of unimpaired volition on the part of the plaintiff on top of the factual awareness requirement. There was nothing in the record in this case to indicate that the plaintiff was clinically unprepared or incapable of dealing with the defendant’s alleged misconduct until late 1997, some four years after he had all the information with respect to the facts of the misconduct and the harm that it could cause him. His failure or lack of resolve to deal with the alleged misconduct could not detract from his knowledge within the scope of s. 89(1) of the Act and the discoverability rule. There was no genuine issue for trial respecting the discoverability issue.
Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.), revg (1997), 33 O.R. (3d) 615 (Gen. Div.); Smyth v. Waterfall (2000), 50 O.R. (3d) 481, 4 C.P.C. (5th) 58 (C.A.), consd
Other cases referred to
M. (K.) v. M. (H.),  3 S.C.R. 6, 96 D.L.R. (4th) 289, 142 N.R. 321, 14 C.C.L.T. (2d) 1
Statutes referred to
Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2, s. 89(1)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20 Authorities referred to
Report by the Task Force on Sexual Abuse (College of Physicians and Surgeons of Ontario, 1991)
MOTION for a summary judgment dismissing an action.
D. Gold, for plaintiff/responding party.
L.T. Forbes, for defendant/moving party. [page634]
MACKENZIE J.: —
 The defendant moves for summary judgment dismissing the plaintiff’s claim on the basis that there is no genuine issue for trial. The grounds for the motion are the operation of s. 89(1) [of Sched. 2] of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Act”). Section 89(1) of the Act creates a limitation period, for bringing actions against a member of a regulated health profession based on negligence of malpractice, of one year following the date when the plaintiff knew or ought to have known the fact or facts on which the negligence or malpractice is alleged.
 It is not in issue that the law of discoverability relating to limitation periods in general applies to the operation of this section.
 The pertinent facts may be shortly stated.
 The plaintiff, who was born in 1970, became a patient of the defendant/psychotherapist sometime in 1985. This doctor/ patient relationship continued until May of 1994.
 In his statement of claim, the plaintiff alleges that the defendant, by certain of his actions towards the plaintiff during the term of the doctor/patient relationship, acted: in breach of a fiduciary obligation he had to the plaintiff; in breach of the contractual arrangement for psychotherapeutic services to be delivered by the defendant to the plaintiff or on his behalf; and in breach of his professional obligations as a health care professional. The gravamen of the alleged misconduct is that the defendant made unsolicited and improper advances of a sexual nature to the plaintiff, with a view to engaging the plaintiff in a gay relationship. The statement of claim containing these allegations was issued on the 11th of December, 1998.
 Upon his return from Calgary in the summer of 1997, the plaintiff decided to seek legal advice with respect to his rights and position arising from his doctor/patient relationship with the defendant. In the fall of 1997, he obtained some initial advice and counsel and, in January of 1998, he obtained further legal advice as to his position. In furtherance of such advice, he initiated contact with the defendant for the purpose of surreptitiously recording by audiotape an interview with the defendant, with the object of utilizing the recorded interview either in a [page635] complaint to the defendant’s professional regulatory body or in an action for damages.
Position of the Defendant/Moving Party
 The defendant submits that there is no genuine issue for trial by virtue of the provisions of s. 89(1) of the Act, and the proper application of the discoverability principle in respect of the limitation period of one year set out in s. 89(1). In this regard, the defendant contends that the evidentiary record before the court comprising, in part, the affidavit sworn by the plaintiff on the 13th of January, 2003 and the extensive cross-examinations thereon conducted on the 26th of February, 2003 and the 8th of July, 2003 establishes that as early as February 1993, the defendant was aware and knew “the facts upon which the negligence or malpractice is alleged”, within the meaning of s. 89(1) of the Act. The defendant points in particular to the evidence obtained in the course of the plaintiff’s cross-examination on the 9th of July, 2003. This evidence is somewhat unusual. It consists of information given by the plaintiff’s mother to him by telephone in the course of his cross-examination on his affidavit.
 It arose in circumstances wherein the plaintiff, in the course of his initial cross-examination, corrected statements in his affidavit to the effect that he had not spoken to anyone, including family members, about the alleged misconduct until the autumn of 1997.
 This correction consisted of the plaintiff recalling that he had had discussions with his mother in about mid-February of 1993, but could not recall what he had told her or any other aspects of the discussion with his mother. It was accordingly agreed between the parties that the best and most cost- efficient way to obtain this information would be to have the plaintiff speak to his mother in the course of his continued cross-examination, put questions to her that were proposed by the defendant’s counsel and have the plaintiff repeat, for purposes of the cross-examination record, her responses. Although the above procedure is somewhat bizarre, it is not now open, for purposes of this motion, for plaintiff’s counsel to seek to exclude such evidence on the basis of offending the hearsay rule. The plaintiff’s counsel contends that it is the mother’s testimony that is being repeated by the plaintiff in his cross-examination, thus subject to all the concerns respecting reliability and truth-testing created by hearsay testimony.
 I disagree. Before the cross-examination involving this telephone conversation with his mother, the plaintiff indicated [page636] that he could not recall exactly what he had said to his mother in their discussions in mid-February of 1993. He was thus in a situation analogous to a person who has a written record of past events but, at the time of his testimony, is unable to recall those events in detail, [without] resorting to the written record.
 In the present case, the plaintiff’s mother’s memory is the equivalent of the written record. Accordingly, his evidence on his cross-examination involving questions put to his mother through him and her answers to those questions are his evidence on the cross-examination, not her evidence. His testimony on his cross-examination repeating his mother’s answers is based on the refreshing of his memory derived from his mother’s answers; that portion of his testimony shall be given the same weight as his other evidence on cross-examination.
 The defendant contends that there is no discoverability issue here that would put the plaintiff’s case within the one- year limitation period in s. 89(1) of the Act. In support of this contention, the defendant points to the plaintiff’s evidence in cross-examination (on 26 February 2003 and 9 July 2003) wherein he acknowledges that on or about February 14, 1993, he disclosed to his mother that (a) the defendant told the plaintiff that he (the defendant) was gay; (b) in the course of therapy sessions with the defendant, the latter made a “pass” of a gay or homosexual nature at him; (c) the plaintiff was concerned and disturbed about this activity; (d) his mother told him at the time it wasn’t his fault; and (e) shortly thereafter, his mother, acting on the opinion of her own psychotherapist, told the plaintiff that her psychotherapist indicated to her [that] the defendant’s alleged conduct was wrong and improper and that the effect of such conduct on the plaintiff was such that he needed to get help from a different psychotherapist because the defendant’s conduct was going to be considerably damaging to him.
 In sum, the defendant’s position is, first, that from and after mid-February of 1993, the plaintiff knew that the defendant’s conduct towards him was improper; and, secondly, that as a result of this conduct, he was damaged and required remedial therapy as a result of the conduct. In these circumstances, the defendant contends that it is unnecessary to deal with the questions of discoverability since the evidence establishes that the plaintiff had the requisite knowledge of the facts upon which the claims are based for over four years before the issuance of his statement of claim in December of 1998. Accordingly, the action is statute-barred by operation of s. 89(1) of the [page637] Act. In this regard, the plaintiff submits there is no genuine issue for trial, i.e. there is no issue as to discoverability.
Position of the Plaintiff/Responding Party
 The plaintiff’s position responding to the motion may be simply put. There is a discoverability issue in this case. The evidence which the defendant contends are unequivocal admissions of facts giving rise to the claim are susceptible of two inferences. The first of these is the inference that the defendant contends the court should draw on this motion. The second inference is that the negative impact of the alleged misconduct on the plaintiff’s mind prevented him from exercising the due diligence as expected of an aggrieved party seeking redress through the courts.
 In essence, the plaintiff submits he was so traumatized by his concerns that he might have been gay that it prevented him from looking for answers (or redress) for the defendant’s alleged misconduct towards him. The plaintiff contends that the nature of the negative impact on the plaintiff’s mind prevented him from having a substantial awareness of possible claims against the defendant until the latter part of 1997, after his return from Calgary. In support of these submissions, the plaintiff refers to the Report by the Task Force on Sexual Abuse, dated November 25, 1991, published by the College of Physicians and Surgeons of Ontario dealing with discoverability issues in cases of sexual abuse, and the case of M. (K.) v. M. (H.),  3 S.C.R. 6, 96 D.L.R. (4th) 289, on the requirement of a plaintiff’s substantial awareness of claims arising out of sexual abuse.
 The onus is on the defendant as moving party to satisfy the court there is no genuine issue for trial. The responding party must adduce on the motion evidence to show there is a real issue for trial.
 The real question to be addressed in this case is the discoverability issue. In the course of submissions, I directed the attention of counsel to a recent decision of the Ontario Court of Appeal, Smyth v. Waterfall (2001), 50 O.R. (3d) 481, 4 C.P.C. (5th) 58 (C.A.).
 This case dealt with the question of resolving discoverability issues in the context of summary judgment motions. The salient facts were that the plaintiff had undergone a surgical procedure by the defendant in October 1993. As a result [page638] of this procedure, there occurred a perforation of her esophagus. She consulted a lawyer on September 27, 1994, and she began an action on October 11, 1995, against the defendant for malpractice. The defendant doctor brought a motion for summary judgment dismissing the claim on the grounds that the claim was statute-barred by virtue of s. 89(1) of the Act. The motion was granted and the plaintiff appealed to the Court of Appeal. The Court of Appeal set aside the summary judgment of dismissal and dealt with the discoverability issue in the context of summary judgment motions in the following manner [at pp. 485-86 O.R.]:
Central to the application of the discoverability rule is when the plaintiff acquired, or ought reasonably to have acquired, knowledge of the facts on which her claim is based. As such, in the context of this appeal, the application of the rule requires resolution of the factual issue of when Ms. Smyth [the plaintiff] “knew or ought to have known the fact or facts” upon which she based her negligence claim against Dr. Waterfall so that it can be determined whether her action was commenced within the one-year limitation: Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, at pp. 170 and 172 . . . . As in Aguonie, the evidence before the motions judge required the resolution of the factual issue central to the application of the discoverability rule. In apparently resolving the factual issue in the respondent’s favour, the motions judge assumed the role of a trial judge. Moreover, as this court pointed out in Aguonie at p. 174, “generally speaking, it is not appropriate for a motions judge, hearing a motion for summary judgment where the application of the discoverability rule is central to its resolution, to resolve this issue.”
 In dealing with the problem created by the motions judge’s failure to provide reasons in Smyth, the court made the following comments [at p. 486 O.R.]:
It is not known what approach the motions judge took in his interpretation and application of the statutory provisions intended to enlarge the limitation period. Either he assumed the role of a trial judge and resolved the discoverability rule issue by making a finding of fact when Ms. Smyth knew, or through the exercise of reasonable diligence ought to have known, the facts in support of her claim against Dr. Waterfall. Or, he failed to recognize that the evidence relied on by Ms. Smyth in satisfaction of her evidentiary burden to provide evidence which raises a genuine issue for trial, as I believe it does, raised a genuine issue for trial. Whether the motions judge followed either or both of these routes, he erred.
 The principle in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 O.R. (4th) 222 (C.A.), confirmed in Smyth, is that “generally speaking, it is not appropriate for a motions judge, hearing a motion for summary judgment where the application of the discoverability rule is central to its resolution, to resolve this issue.” [page639]
 The gist of the defendant’s response to this dictum is that it is a general principle which may or may not be applicable to a particular set of circumstances. In these circumstances here, Mr. Forbes submits it is inapplicable as there is no need to “weigh” the evidence, in that there are no factual findings required as there were in Smyth, since there is a clear and unequivocal admission by the plaintiff of his knowledge of the facts in support of his claim against the defendant. Accordingly, in giving effect to this admission, the court does not embark upon the proper function of the trial judge which is to sift and weigh the evidence on the discoverability issue and make appropriate factual findings in relation to the same.
 In sum, the defendant contends that he has discharged its burden on a Rule 20 motion [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] and, accordingly, he is entitled to judgment dismissing the plaintiff’s claim.
 The plaintiff in response denies that there are clear and unequivocal admissions by him of the facts giving rise to the claim and that the nature of the impact on his mind arising from the defendant’s misconduct prevented him from having the requisite “substantial awareness” of his claim, as set out on p. 16 S.C.R. of M. (K.) v. M. (H.), above. The plaintiff submits that he was rendered incapable of “dealing” with the problem in mid-February of 1993 and did not arrive at a state of readiness to “deal” with the problem until the fall of 1997. Accordingly, it is contended that there is a genuine issue with respect to discoverability that is properly resolved at trial and not on a summary judgment motion.
 I agree with the submissions of the defendant on this point. The key words in s. 89(1) and in Smyth and in other cases on the discoverability rule application refer to knowledge, i.e. that the plaintiff knew or ought reasonably to have known. To suggest there is a requirement of unimpaired volition on the part of the claimant on top of the factual awareness requirement substantially changes the knowledge concept inherent in the rationale of the discoverability rule. I am unable to accede to such a proposition. In Smyth v. Waterfall, supra, at p. 485 O.R., the rationale for the discoverability rule is stated as follows:
The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based[.][page640]
 There is nothing in the record before me to indicate that the plaintiff was clinically unprepared or incapable of dealing with the misconduct of the defendant until the fall of 1997, some four years after he had all the information with respect to the facts of the misconduct and the harm that it could cause him. In the result, as stated above, I am unable to find that his failure or lack of resolve to deal with the alleged misconduct can in any way detract from the requisite knowledge within the scope of s. 89(1) of the Act and of the case law on the discoverability rule. In this regard, the plaintiff in responding to the motion has failed to establish that there was a genuine issue for trial respecting the discoverability issue.
 For the above reasons, the defendant’s motion for summary judgment dismissing the plaintiff’s action is granted.
 The defendant shall have his costs. If the parties are unable to agree as to the quantum or scale of costs, I will entertain written submissions from them. Such submissions shall not exceed four pages in length, excluding supporting materials, according to the following schedule:
1. By the defendant on or before 30 days from date of issue of these reasons;
2. By the plaintiff in response within seven days following the defendant’s submissions;
3. Reply, if any, by the defendant within five days of the plaintiff’s responding materials.