Labour & Employment Law Blog

Discovering Discoverability

Zeilikman Law

Zeilikman Law

Case Summary


In a recent personal injury case arising out of a surgery-gone-bad, the Court of Appeal was charged with deciding on the issue of discoverability. The plaintiff-patient had suffered medical complications following a breast-reduction surgery. What followed was thirteen (13) months of continued treatment by her doctor, the same doctor that had (allegedly) caused or contributed to the complications. The plaintiff had surgery on March 25, 2009, and following numerous unsuccessful attempts by her doctor to ameliorate the damage, the plaintiff ultimately sued her doctor on June 4, 2012, almost three (3) years after the doctor’s impugned conduct. The doctor brought a summary judgement to have the claim dismissed because it was initiated outside of the limitation period. The Limitations Act 2002 (the “Act”) requires that actions be brought within two (2) years of their discovery. The Act outlines that the time limit starts to run from the point at which it can be established that:

  1. the injury, loss or damage had occurred;
  2. the injury, loss or damage was caused by or contributed to by an act or omission;
  3. the act or omission was that of the person against whom the claim is made;
  4. the proceeding would be an appropriate means to seek remedy.

On summary judgement, the motion judge found that the defendant-doctor had failed to establish the fourth ground of the analysis. The judge reasoned that the plaintiff did not know that legal proceedings were an appropriate means to remedy her injury until after all medical attempts had failed. Therefore, the limitation period did not commence until June 16, 2010, the date of the plaintiff’s last surgery aimed at ameliorating her injury.


The general purpose of a limitation period is to encourage people to act on their rights. This is due to the fact that, as time moves on, so does the likelihood that relevant evidence may be lost and witnesses become less credible as their recollections grow blurry. The Act is further thought of as a way to foster predictability in the legal system by preventing people from holding an action over someone’s head without having any intention of actually proceeding. Although the two year limitation is not an absolute one, in the past, it has been applied with vigilance as a means of maintaining order and accountability within the legal system. It is interesting, then, that the Court of Appeal decided to allow the plaintiff to sue in this case almost three (3) years after the fact. It seems that, in this case, the Court of Appeal was cognizant of the fact that the Plaintiff’s attempts to ameliorate her injuries through medical means was commendable, and that she should not be punished for her tardiness in bringing the action. This case embodies the tension often present in limitations issues, wherein the court must decide and prioritize the demands of the legal system, between ensuring a full and fair trial and encouraging non-legal means of conflict resolution.

SeeBrown v Baum, 2016 ONCA 325

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.