Supreme Court

Lapierre v. Ft. Simpson Hosp. et al, 2005 NWTSC 40
Date: 20050428
Docket: S-1-CV-7854

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:


ANN LAPIERRE, Administrator of the Estate of Marc-Andre
Lapierre, Deceased, DANIEL LAPIERRE and ANN LAPIERRE

     Plaintiffs


-and-


FORT SIMPSON HOSPITAL, FORT SIMPSON HOSPITAL operating under the name and style of
FORT SIMPSON HEALTH CENTRE, FORT SIMPSON HEALTH CENTRE, MACKENZIE
REGIONAL HEALTH SERVICE. MACKENZIE REGIONAL HEALTH SERVICE operating under the name and style of DEH CHO HEALTH & SOCIAL SERVICES, DEH CHO HEALTH & SOCIAL
SERVICES, DEH CHO HEALTH & SOCIAL SERVICES operating under the name and style of FORT SIMPSON HEALTH CENTRE, MACKENZIE REGIONAL HEALTH SERVICE operating under the name and style of FORT SIMPSON HEALTH CENTRE, DEH CHO HEALTH & SOCIAL SERVICES operating under the name and style of FORT SIMPSON HOSPITAL, MACKENZIE
REGIONAL HEALTH SERVICE operating under the name and style of FORT SIMPSON HOSPITAL, STANTON REGIONAL HOSPITAL, YELLOWKNIFE HEALTH AND SOCIAL SERVICES, YELLOWKNIFE HEALTH AND SOCIAL SERVICES operating under the name and
style of STANTON REGIONAL HOSPITAL, DR. DAVID WONG, DR. MATTHEWS, DR. MATTHEWS PROFESSIONAL CORPORATION, DR. MATTHEWS PROFESSIONAL CORPORATION practising medicine under the name of DR. MATTHEWS, DR. SYLVIAN CHOUTNARD, DR. NICOLE CHATEL, DR. JOHN DOE A, DR. JOHN DOE A PROFESSIONAL CORPORATION, DR. JOHN DOE A PROFESSIONAL CORPORATION practising medicine under the name of DR. JOHN DOE A, DR. JOHN DOE B, DR. JOHN DOE B PROFESSIONAL CORPORATION, DR. JOHN DOE B PROFESSIONAL CORPORATION practising medicine under the name of DR. JOHN DOE B, DR. JOHN DOE C, DR. JOHN DOE C PROFESSIONAL CORORATION, DR. JOHN DOE C PROFESSIONAL CORPORATION practising medicine under the name of DR. JOHN DOE C. ROSE LANG, D. CRANCH, NURSES A, B, and C, LABORATORY TECHNICIANS A, B, C and D, MEDELIGHT LTD., MEDFLIGHT LTD.
ATTENDANTS A, B, C, D, AND E

     Defendants


Transcript of the Oral Decision of the Honourable J.Z. Vertes, sitting in Yellowknife, in the Northwest Territories, on the 6th day of April, A.D. 2005.


APPEARANCES:

Ms. E. Olszewski:  Counsel for the Plaintiffs

Mr. J. Rossall:   Counsel for the Defendants


THE COURT:   I want to thank you both, Counsel, for your submissions, and I am ready to give my decision on the motion. I will ask the reporter to prepare a transcript of my decision for the file and for your reference.

These reasons address the defendants' motion for summary judgment based on the ground that the action is statute-barred under Section 6(2) of the Fatal Accidents Act. That statute says an action may not be brought after two years from the death of the deceased.

This is a medical malpractice action against the three defendant doctors. The death occurred on January 17th, 1996, but the action was not commenced until August 27, 1998.

Counsel are well aware of the guiding principles with respect to summary judgment motions. The question I must answer is whether there is a genuine issue for trial. In the context of this application, the question can be framed as follows: Is it beyond doubt that if the case went to trial, the claim would fail because of the limitation defence?

In this case, defendants' counsel argued that the plaintiff had, well before the expiry of the two-year period from the date of death, formed the opinion that there was negligence and

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delay in the diagnosis and treatment of her son. She had been provided with information to support that opinion. Defendants' counsel submitted that, contrary to the assertions of the plaintiff, there was no need to await the investigation report by the Medical Council, received by the plaintiff in June of 1998, to know that there was a cause of action. That report added nothing but confirmation of what the plaintiff had already concluded.

Plaintiff's counsel submitted that it was only after the plaintiff had received the investigation report that she formed the opinion that her son's death was wrongful. Prior to that, she may have been suspicious and angry, but that is not the same thing as an appreciation that she had a cause of action.

These are, admittedly, very terse summaries of the extensive submissions of counsel; but for the purposes of these reasons, those reflect the sum and substance of the submissions.

Counsel accept for purposes of this motion that the discoverability principle applies to the limitation period contained in the Fatal Accidents Act.

The discoverability principle postpones the running of a statutory limitation period until

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the plaintiff knows, or by reasonable diligence ought to have known, the material facts upon which to bring an action. That is a question of fact depending on the circumstances of each particular case. In medical malpractice cases, it seems to me that the plaintiff may not have acquired the necessary facts until a professional advisor, such as a lawyer or a medical consultant, has determined that there are grounds for thinking that there had been negligence. In some cases, however, it will be possible to know the material facts without a professional opinion. In any event, the plaintiff is expected to act with due diligence in acquiring the facts.

Here, what the evidence shows is that the plaintiff had formed certain concerns even before her son's death. She pursued those concerns after the death. She asked questions of professionals. The responses she received led to more questions. She alleges that in 1997, still within the limitation period, she had been advised by the President of the Medical Council to await the result of the investigation into her son's treatment. She, of course, did not receive those results until after the statutory period had expired.

In my opinion, this evidence is not

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conclusive of the question as to whether there is no genuine issue for trial. It does not convince me that there is no genuine issue with respect to (a) whether the plaintiff acted with due diligence, or (b) when it can be said that the limitation period started to run.

I have, in previous cases, referred to the Ontario Court of Appeal judgment in Aguonie v. Gallon Solid Waste Material Inc. (1998), 156 D.L.R. (4th) 222, as counsel have on this application. I think that case provides some guidance here.

In Aguonie, the Court stated that the application of the discoverability rule to the facts of a particular case necessarily requires a finding of fact about when the plaintiff discovered the facts in respect of the claim or, through due diligence, ought to have discovered the facts. On a motion for summary judgment, the moving party must establish that there is no issue of material fact which requires a trial for its resolution. The Court in Aguonie pointed out that it is not the function of the motions judge to resolve the issue of fact, but rather to determine whether a genuine issue of fact exists.

Numerous cases have held that it is not appropriate for a motion judge, hearing an

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application for summary judgment where the application of the discoverability rule is central to its resolution, to resolve that issue. In my opinion, the plaintiff has presented evidence in this case that raises issues of material fact which require a trial in order to evaluate credibility, to weigh the evidence, and to draw factual inferences.

What the defendants are asking me to do is to resolve the issue when the evidence presented raise substantial questions about it. Those questions should be resolved at a trial. The motion for summary judgment is therefore dismissed.

Now, Counsel, do you wish to address the question of costs, because as you know, the rules provide certain cost consequences on an unsuccessful summary judgment motion, or would you be content with simply a direction that costs be left to the trial judge?

MS. OLSZEWSKI:  I'm satisfied with that direction.

THE COURT:   I'm sorry?

MS. OLSZEWSKI:  I'm satisfied with that direction.

MR. ROSSALL:  I think that's probably fair, sir.

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THE COURT:   Then costs will be left to the discretion of the trial judge. Thank you again, Counsel.

MS. OLSZEWSKI:  Thank you.

THE COURT:   Is there anything else you require today?

MR. ROSSALL:  No thank you, sir.

MS. OLSZEWSKI:  Thank you.


Certified Pursuant to Rule 723 of the Rules of Court

Jane Romanowich, CSR(A), RPR
Court Reporter

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