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LIMITATIONS OF ACTIONS - Which limitation period applies

Wednesday, May 20, 2020 @ 6:55 AM  


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Appeal by the plaintiff from the dismissal of her medical malpractice action as statute barred. Cross-appeal by the respondents from the judge’s finding the minor plaintiff’s claim was not statute barred. The appellant’s husband died in February 2007 of a heart attack. He was last treated by the respondents in 2004. She claimed his condition was misdiagnosed. The action was commenced by the appellant and her son, a minor at the time, in January 2007. In May 2005, s. 72 of the Medical Profession Act, which required an action to be commenced within two years after last treatment, was repealed. The chambers judge found that the law as it existed before May 2005 applied. He found that because the son was an infant at the relevant times, the limitation period was postponed while he was an infant and his claim was thus not statute barred. The Chambers judge held that the appellant had discovered her claim prior to May 2005. He held that s. 72 of the Medical Profession Act applied and, therefore, her claim was statute-barred.

HELD: Appeal allowed. Cross-appeal dismissed. The chambers judge did not err in finding that the limitation period was postponed while the son was an infant. The limitation period provided for in s. 72 did not begin to run during the claimant’s infancy by application of s. 6 of the Limitation Act. There was also no basis to intervene in the chambers judge’s determination that the pre-May 2005 law applied for the purposes of assessing if the appellant’s claim was time‑barred. On the facts of this case, there was a conflict between s. 6 the Fatal Accidents Act which set the limitation period at two years after discovery of the claim and s. 72 of the Medical Profession Act. The Chambers judge overstated the matter when he described the Medical Profession Act as applying to all claims for damages arising out of the provision of professional services, regardless of the identity of the plaintiff and when he found that s. 6 of the Fatal Accidents Act applied to all wrongful death claims. In considering the Medical Profession Act to be the more precisely relevant legislation, he failed to account for the truly sui generis nature of a claim that was created by the Fatal Accidents Act. The interpretation of the law that came from the two competing provisions that best accorded with the statutory language and fulfilled the objects of the two statutes was to read s.72 of the Medical Profession Act as being subject to s. 6 of the Fatal Accidents Act such that s.72 did not apply to a claim for damages under the Fatal Accidents Act that was otherwise commenced within the time provided for under s. 6 of that Act. This interpretation was consistent with the policy and intent behind s. 6 of the Fatal Accidents Act to give claimants time to consider commencing an action and only derogated from, but did not destroy, the purpose behind s. 72 of the Medical Profession Act to provide doctors the protection of a limitation period. This interpretation achieved the common goals of both limitations as it afforded plaintiffs a reasonable time to sue while maintaining a limitation period for the benefit of the defendants. This interpretation was also consistent with the application of the strict rule of construction generally applicable to limitation legislation.

Lorencz v. Talukdar, [2020] S.J. No. 86, Saskatchewan Court of Appeal, N.W. Caldwell, L.M. Schwann and R. Leurer JJ.A., March 20, 2020. Digest No. TLD-May182020005