COURT OF APPEAL FOR ONTARIO

CITATION: McHale v. Lewis, 2018 ONCA 1048

DATE: 20181219

DOCKET: C63989

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Gary McHale, Randy Fleming, Doug Fleming, Jacob Van
    Halteren

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

O.P.P. Commissioner Chris Lewis, Sergeant Ben
    Gutenberg, Inspector Phil Carter, Superintendent John Cain, and Her Majesty the
    Queen in right of Ontario

Defendants (Respondents/
Appellants by way of cross-appeal)

AND BETWEEN

Ted Harlson,
Christian

Christine
McHale,
    Gary McHale, Hetty Van Halteren, Jacob Van Halteren

Plaintiffs (Appellants)

and

O.P.P. Commissioner Chris Lewis,
    Superintendent John Cain, Sergeant Brad Moore, Inspector Phil Carter and

Her Majesty the Queen in
    right of Ontario

Defendant (
Respondent
)

AND BETWEEN

Stuart Laughton, Ted Harlson, Gary McHale, Randy
    Fleming, Jacob Van Halteren, Doug Fleming

Plaintiffs (Appellants/
Respondents by way of cross-appeal)

and

O.P.P. Commissioner Chris Lewis, Sergeant Brad
    Moore, Inspector Phil Carter and
Her Majesty the Queen in right of Ontario

Defendant (
Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Randy Fleming

Plaintiff (Appellant/
Respondent by way of cross-appeal)

and

Ken Decloet, Jeffrey Gray, Steven Lorch, Brad
    Moore, Phil Carter, John Cain, Chris Lewis and
Her Majesty the Queen in
    right of Ontario

Defendants (Respondents/
Appellants by way of cross-appeal)

Gary McHale, on his own behalf and on behalf of the
    plaintiffs

S. Mathai and N. Ghobrial, for the respondents/appellants
    by way of cross-appeal

Heard: November 6, 2018

On appeal from the orders of Justice David A. Broad of
    the Superior Court of Justice, dated February 13, 2017, with reasons reported
    at 2017 ONSC 969.

Pardu J.A.:

A.

BACKGROUND

[1]

The plaintiffs and the defendants in four separate
    actions
[1]
appeal from the decision of a motion judge. The plaintiffs appeal from the
    motion judges decision to strike their pleadings alleging conspiracy on the
    part of the defendants, without granting them leave to amend their statements
    of claim. The defendants appeal from the motion judges refusal to strike the
    claims for false arrest in two of the actions. In both those actions the
    statements of claim were issued after the expiry of the presumptive limitation
    period running from the date of the arrest.

[2]

Each of the four actions has in common an
    allegation that a plaintiff was falsely arrested for walking on a public street
    while engaged in peaceful expressive activity. The plaintiffs allege that these
    arrests were acts in furtherance of a broad, overarching conspiracy amongst
    senior police officers and others to deliberately violate their
Charter
rights, shut down their
    expressive activity and falsely arrest them.

B.

Allegations of conspiracy

(1)

Decision of the motion judge

[3]

The motion judge observed that the pleadings
    failed to claim damages for conspiracy, although it was apparent from the
    statements of claim that the plaintiffs sought a finding that the defendants
    were liable for the tort of conspiracy. He held that allowing the pleading of
    an alleged conspiracy or conspiracies would expand the complexity and expense
    of the litigation while providing little or no probative value and should
    therefore be struck under Rule 25.11 (see
Javitz v. BMO Nesbitt
    Burns Inc.
(2011), 105 O.R. (3d) 279 (S.C.J.)).

(2)

Argument on appeal

[4]

The defendants argue that the statements of
    claim are missing an essential element, a claim that the conspiracy caused
    damage and a claim for those damages, and were therefore properly struck. They
    argue that the motion judge was correct to refuse leave to amend because the
    conspiracy claims are redundant of the claims for false arrest, malicious
    prosecution and related
Charter
violations.

[5]

The plaintiffs argue that even if the statement
    of claim was deficient in failing to include a claim for damages resulting from
    the conspiracy, this could be readily corrected with an amendment for which
    leave should have been granted, especially since all of the other elements of
    conspiracy were pleaded. Further the plaintiffs say that their claims in
    conspiracy allege agreements which go far beyond the false arrest and malicious
    prosecution and are therefore not redundant.

(3)

Analysis

[6]

The motion judge summarized the principles
    governing the decision whether to grant leave to amend a pleading from
Aristocrat Restaurants Ltd. (c.o.b. Tonys East)
v.
    Ontario
, [2003] O.J. No. 5331 (S.C.):

(a)

the approach that amendments should be
    presumptively approved unless they would occasion prejudice that cannot be
    compensated by costs or an adjournment, they are shown to be scandalous,
    frivolous, vexatious, or an abuse of the courts process, or they disclose no
    reasonable cause of action, is relevant to the issue of whether, on a motion to
    strike a pleading, a court should exercise its discretion to grant leave to
    amend;

(b)

leave to amend should properly be given where a
    pleading can be put right or improved by amendment and no injustice is done
    thereby;

(c)

depending on the circumstances of the case,
    striking out a pleading without granting leave to amend often does little to
    advance the ends of justice;

(d)

in disposing of a motion to strike when a
    recognized cause of action has been improperly pleaded, but can be put right
    without non-compensable prejudice to the defendants, the preferred route is to
    afford the plaintiff the opportunity, upon appropriate terms, to plead the
    cause properly within the action before the court; and

(e)

the foregoing approach makes practical sense and
    is in keeping with the objectives set out in rule 1.04, namely that the rules
    shall be liberally construed to secure the just, most expeditious and least
    expensive determination of every civil proceeding on its merits.

[7]

No one takes issue with this articulation of the
    principles on this appeal.

[8]

However, the motion judges reliance on Rule
    25.11 and
Javitz

was misplaced in this case. In
Javitz

customers of an investment dealer sued
    the dealer for damages arising from fraud committed by an employee of the
    dealer. The suing customers pleaded that the employee had perpetrated massive
    frauds in relation to other customers over many years. The suing customers
    wanted to plead and introduce this similar fact evidence to support their
    allegation that the investment dealer had been negligent in its supervision of
    the employee.

[9]

Pepall J. (as she then was) held at para. 25:

In my view, these
    portions of the pleading should be struck on a number of grounds. These
    allegations will greatly expand the breadth, complexity and expense of the
    litigation in circumstances where the corresponding probative value is minimal.

[10]

What is key to the decision in
Javitz
is that the similar facts pleaded
    were collateral to the wrongdoing underlying the customers actions. In these
    circumstances proportionality was properly a factor in the application of Rule
    25.11.

[11]

Here one of the wrongs complained of by the
    plaintiffs is the tort of conspiracy. Pleading the very cause of action
    asserted and the factual underpinnings of that cause of action is not a
    collateral matter and in itself cannot be a pleading that may prejudice or
    delay the fair trial of the action within the meaning of Rule 25.11.

[12]

I also do not accept the argument on appeal that
    leave to amend was properly refused in application of the merger doctrine.

[13]

This principle holds that where two or more
    persons conspire to commit a tort, and the tort is committed, the allegation of
    conspiracy adds nothing to the claim. A plaintiff is not entitled to be
    compensated twice for the same harm where the damages from both the conspiracy
    and the tort are the same:
Jevco Insurance Co. v.
    Pacific Assessment Centre Inc.
, 2015 ONSC 7751,
    128 O.R. (3d) 518 (Div. Ct.).

[14]

Here the claims in conspiracy are not redundant
    of the claims for false arrest but go beyond the actions of the individual
    arresting officers at the time of the arrests, which gave rise to the claims of
    false arrest and associated
Charter
violations.
    The pleadings target a broader group of participants in the alleged conspiracy
    and assert that the facts establishing the existence of this conspiracy arose
    before and after the arrest. The statement of claim in CV-14-50 pleads that after
    the initial arrest on the trespassing charge senior officers repeatedly
    threatened to arrest the plaintiffs if they walked on a public street and
    further pleads that even after the charges arising out of this arrest were
    withdrawn, and even after the OPP learned that the place where the plaintiff
    was arrested for trespassing was a public street, senior officers continued to
    threaten to arrest the plaintiffs if they attempted to use the public road.

[15]

The statement of claim in action CV-14-50 pleads
    that the conspiracy was for the improper and unlawful purpose of limiting or
    curtailing the Plaintiffs
Charter
rights of
    freedom of expression; freedom of peaceful assembly and freedom of association
    as guaranteed by s. 2 of the
Charter
. The plaintiffs allege that one of the purposes of the conspiracy
    was to target non-natives for arrest, in violation of s. 15 of the
Charter
.

[16]

Further, as will be seen below, if the defendant
    is successful at trial in its
Limitations Act, 2002
, S.O. 2002, c. 24, Schedule B
defence on a claim for damages for false arrest in actions CV-16-16
    and CV-14-146, it is not clear that a claim based on a tort of conspiracy would
    also be statute barred. Moreover, if the claims based on false arrest are
    statute barred, the claim in damages for conspiracy may not be redundant.

[17]

The existence of a conspiracy may be a factor
    affecting the assessment of damages for the violation of rights guaranteed by
    the
Charter
. As
    pointed out in
Vancouver (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 47, compensation will
    usually be the most important object of an award for violation of a
Charte
r right, but there may be cases where vindication or deterrence
    play a major and even exclusive role. Where it is proven that government
    actors conspired together to violate
Charter
rights, that conduct may increase the weight given to deterrence in
    the assessment of damages. This may also be a factor in the assessment of
    punitive damages.

[18]

In
Hunt v. Carey
    Canada Inc.
, [1990] 2 S.C.R. 959, the court held
    that there were good reasons to allow a conspiracy claim to go to trial along with
    other related tort actions. At p. 989 Wilson J. observed that a conspiracy may
    give rise to harm of a magnitude that is greater than that of tortfeasors
    acting alone.

[19]

Finally the issue of whether there was any
    redundancy in the claims successfully made should be left to the trial judge.

[20]

In
Hunt
the
    court noted further at pp. 991-92:

It seems to me
    totally inappropriate on a motion to strike out a statement of claim to get
    into the question whether the plaintiff's allegations concerning other nominate
    torts will be successful. This a matter that should be considered at trial
    where evidence with respect to the other torts can be led and where a fully
    informed decision about the applicability of the tort of conspiracy can be made
    in light of that evidence and the submissions of counsel. If the plaintiff is
    successful with respect to the other nominate torts, then the trial judge can
    consider the defendants' arguments about the unavailability of the tort of
    conspiracy. If the plaintiff is unsuccessful with respect to the other nominate
    torts, then the trial judge can consider whether he might still succeed in
    conspiracy. Regardless of the outcome, it seems to me inappropriate at this
    stage in the proceedings to reach a conclusion about the validity of the
    defendants' claims about merger. I believe that this matter is also properly
    left for the consideration of the trial judge.

[21]

I agree with the observations of Molloy J. in
Jevco
:

[52] Accordingly, in
    my view, the law supports permitting the conspiracy claim to be pleaded along
    with other nominate torts and applying the doctrine of merger only at the end
    of the trial when it is known if the plaintiff has been fully successful on the
    nominate torts and whether there is anything added by the conspiracy claim. Further,
    in the interests of paring down out-of-control interlocutory proceedings and
    introducing consistency in the law, as a practical matter it is preferable not
    to resolve these types of claims at the pleadings stage.

[22]

Rule 26.01
of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194
, provides that at any stage of an action
    the court shall grant leave to amend a pleading on such terms as are just,
    unless prejudice would result that could not be compensated for by costs or an
    adjournment. The defendants will suffer no prejudice if, at this stage, before
    a statement of defence has been delivered, the plaintiffs are permitted to
    quantify the damages claimed for conspiracy.

[23]

I would set aside paragraph 4 in the orders
    below in each action, grant leave to the plaintiffs to amend their statements
    of claim to quantify the damages claimed for the tort of conspiracy and
    indicate whether both compensatory and punitive damages are claimed for the
    tort of conspiracy.

C.

Are any of the actions statute barred?

(1)

Decision of the motion judge

[24]

The defendants argued before the motion judge
    that he should dismiss three of the actions for false arrest on the ground that
    the limitation period had expired. The motion judge refused to do so on the
    ground that the defendants had not yet delivered a statement of defence,
    relying on
Tran v. University of Western Ontario
, 2016 ONCA 978, 410 D.L.R. (4th) 527, at para. 20, and
Metropolitan Toronto Condominium Corporation No. 1352 v. Newport
    Beach Development Inc
.
,

2012 ONCA 850, 113 O.R. (3d) 673, at
    para. 116:

The rules call
    for a limitation defence to be pleaded in the statement of defence. A plaintiff
    is entitled to reply to a statement of defence and put before the court further
    facts, for example, on the question of the discoverability of the claim. Only
    in the rarest of cases  and this is not one of them  should this court
    entertain a defendants motion to strike a claim based on the limitation
    defence where the defendant has yet to deliver a statement of defence.

[25]

The motion judge observed that it remained an
    open question whether discoverability could ever be raised in response to a
Limitations Act, 2002
defence to a claim
    for damages for false arrest and concluded that this was not one of those
    rarest of cases justifying departure from the normal rule that a limitation
    defence must be pleaded before a court will entertain a motion to strike an
    action as statute barred.

(2)

Limitation arguments on appeal

[26]

The defendants argue in their cross-appeal that
    the claims for false arrest in actions CV-14-146 and CV-16-16 should have been dismissed
    because they were statute barred and that these are cases where this is
    apparent from the statements of claim, justifying an exception to the general
    rule that actions should not be struck as out of time before a statement of
    defence has been delivered. They argue that in both these actions the claims of
    false arrest and associated
Charter
breaches
    were discoverable on the date of the arrest and, accordingly, the limitation
    period began to run on the date of the arrest.

(3)

Analysis

[27]

In CV-14-146 the plaintiffs plead that on August
    26, 2012 they were arrested to prevent a breach of the peace as they
    attempted to walk on a public street. They say that they were handcuffed,
    searched and had their belongings taken from them, and that they were placed in
    a prisoner wagon and taken to an OPP detachment where they were released a few
    hours later. No charges were laid.

[28]

The plaintiffs plead that they were falsely
    arrested and that numerous
Charter
rights were violated, including rights to freedom of expression,
    freedom of peaceful assembly and freedom of association, as well as the rights
    not to be subjected to arbitrary detention or discrimination on account of
    race. The plaintiffs allege that the defendants conspired to target them for false
    arrest, knowing that the arrest would be unlawful and violate their
Charter
rights.

[29]

The statement of claim was not issued until three
    days past the two-year limitation period stipulated by the
Limitation
s
Act, 2002

with the extension provided by s. 7(2)
    of the
Proceedings Against the Crown Act
, R.S.O.
    1990, c. P.27.

[30]

In CV-16-16 the plaintiff claims that he was
    walking on a public street on September 9, 2012 when police ordered him off the
    road and arrested him for obstruct justice. Again, the plaintiff says that he
    was handcuffed, searched, removed of his belongings and placed in a prisoner
    wagon, taken to the OPP detachment and released a few hours later. The charge
    was dropped on February 3, 2014, the same day the trial court was to hear a
    motion for
Charter
relief in relation to the charges. The plaintiff pleads that the arrest was false,
    and violated his
Charter
rights. He also pleads that officers knowingly conspired to falsely
    arrest him and violate his
Charter
rights. He alleged abuse of process on the part of the Crown
    prosecutor. He also advanced a claim of malicious prosecution which the motion
    judge struck with leave to amend, a decision not challenged on appeal.

[31]

The statement of claim was issued on February 1,
    2016, nearly three and a half years after the arrest.

[32]

The defendants initially appealed from the
    motion judges refusal to strike out the claims for false arrest, false
    imprisonment and associated
Charter
breaches
    in action CV-14-50 as being statute barred, but now acknowledge that as a
    result of this courts decision in
Winmill v. Woodstock (Police
    Services Board)
, 2017 ONCA 962, 138 O.R. (3d) 641, leave
    to appeal refused, [2018] S.C.C.A. No. 39, rendered after the motion judges
    decision, CV-14-50 is not statute barred.

[33]

In
Winmill
, on June 1, 2014, Mr. Winmill was involved in a physical
    confrontation with police officers in his home. The police charged him with
    assaulting an officer and resisting arrest. He was acquitted of those charges on
    February 17, 2016, then in June 2016, two years and one day after the physical confrontation,
    he sued for damages for battery, abuse of authority, negligence, and later
    added allegations of negligent investigation. The defendants moved to strike
    the claim for battery, but not the negligent investigation claim, as statute
    barred. The motion judge granted the motion and struck out the claim for
    battery.

[34]

On appeal, MacPherson J.A., writing for the
    majority of the court, referred to the discoverability principles set forth in
    s. 5(1) of the
Limitations Act, 2002
:

5(1) A claim is discovered on the earlier of,

(a) the day on which
    the person with the claim first knew,

(i) that the injury,
    loss or damage had occurred,

(ii) that the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or
    omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of
    the injury, loss or damage, a proceeding would be an appropriate means to seek
    to remedy it;

[35]

He indicated that there was no issue with
    respect to the first three factors. The plaintiff knew that he had been
    injured on June 1, 2014, that the injury was caused by physical blows to his
    body, and that at least some of the respondents administered those blows. He
    concluded however, applying s. 5(1)(a)(iv), that having regard to the nature
    of the injury, loss or damage the plaintiff did not know that a proceeding
    would be an appropriate means to seek to remedy the alleged battery until he
    was acquitted of the criminal charges.

[36]

The parties acknowledged that the
    discoverability date for the negligent investigation claim was the date of
    acquittal. The negligent investigation claim which was proceeding to trial
    dealt with virtually the same parties and events as the battery claim. As the
    tort claim of battery and the charges of assaulting a police officer and resisting
    arrest were mirror images of each other this court held that it made sense
    for the plaintiff to postpone deciding whether to sue the police until the
    criminal charges were resolved.

[37]

Accordingly, MacPherson J.A. concluded that the
    discoverability date for the battery claim was the same as the discoverability
    date for the negligent investigation claim, the date of the acquittal, and that
    the battery claim was not statute barred.

[38]

Before this court, the defendants argue that
    CV-16-16 can be distinguished from
Winmill
because the obstruct justice charge that was laid is not the
    mirror image of the false arrest claim.

[39]

The defendants submit that there is no basis to
    delay discoverability beyond the date of arrest in CV-14-146 because there was
    no charge laid in that case.

[40]

Here the motion judge was correct to conclude
    that this was not one of those rare cases where the claims should have been
    struck as statute barred before a statement of defence was delivered. In the
    absence of a pleading from the plaintiffs responding to a defence based on the
Limitations Act, 2002
it is not known
    at this stage to what extent the plaintiffs will rely on discoverability beyond
    the date of the arrests to delay the start of the limitation period. The motion
    judge did not have the benefit of pleadings to structure consideration of
Limitations Act, 2002
issues.

[41]

This is a sufficient basis to uphold the motion
    judges decision to reject the defendants motion as premature.

[42]

The defendants submit that
Kolosov v. Lowes Companies Inc.
, 2016

ONCA 973,
34 C.C.L.T. (4th) 177,

makes it clear that the limitation period for false arrest and
    related
Charter
breaches always begins on the date of arrest. In
Kolosov

the plaintiffs were admittedly in
    possession of fraudulently obtained goods; the arresting officer testified that
    he had reasonable and probable grounds to believe the plaintiffs had committed
    an offence and the motion judge found that that belief was objectively
    reasonable. This court held that the plaintiffs offered no authority to support
    the proposition that the limitation period did not run until they had received
    full disclosure of the charge against them. It is difficult to see in the
    circumstances of that case that the contents of disclosure could have had any
    impact on the existence or non-existence of reasonable and probable grounds for
    arrest, given that the plaintiffs admitted they were in possession of
    fraudulently obtained goods. It appears that the plaintiffs did not invoke s.
    5(1)(a)(iv) of the
Limitations Act, 2002
; an analysis of the full impact of that section in relation to
    discoverability of claims for false arrest should in the present case be left for
    a fuller factual record.

[43]

The causes of action for false arrest and
    associated
Charter
violations are inextricably intertwined with the claims for damages for
    conspiracy, which are not alleged to be statute barred. The defendants fairly
    indicate that they are not seeking to strike the conspiracy claims as it is not
    obvious when the plaintiffs learned of the alleged conspiracy. Given that
    claims for damages for conspiracy may be pleaded, it may be that the best place
    to address the limitation defences is at trial, with the benefit of pleadings
    and a full factual record. There may be
Charter
violations established independently of the false arrest, and it is
    not clear how delayed discoverability might affect those claims. Here the
    obstruct justice charges and the false arrest alleged in CV-16-16 arise out of
    the same events, and it may be that a trial will be necessary to determine
    whether discoverability is delayed, as occurred in
Winmill
.

[44]

Even in CV-14-146, little judicial economy would
    be achieved by striking the claims for false arrest after the close of
    pleadings but before trial if the conspiracy claims are going to trial, given
    that these claims are based on overlapping factual allegations.

[45]

Accordingly, I would dismiss the appeal by the
    defendants from the motion judges refusal to strike the claims for false
    arrest, false imprisonment and associated
Charter
breaches in CV-14-146 and CV-16-16 as statute barred, and dismiss
    the appeal from the refusal to strike the action in CV-14-50 as abandoned.

[46]

The parties have agreed to the amount of costs that
    should follow the result in the appeal by the plaintiffs and the cross-appeal
    by the defendants. I would award $2,000.00 to the plaintiff Gary McHale on the
    appeal and $1,000.00 to him on the cross-appeal.

G. Pardu J.A.

I agree P. Lauwers
    J.A.

I agree C.W.
    Hourigan J.A.

Released: December 19, 2018

P.L.

Appendix
    A

Plaintiff(s)

Defendant(s)

CV-14-50

Gary McHale, Randy Fleming, Doug Fleming,
            Jacob Van Halteren

O.P.P. Commissioner Chris Lewis, Sergeant
            Ben Gutenberg, Inspector Phil Carter, Superintendent John Cain, and Her
            Majesty the Queen in right of Ontario

CV-14-145

Ted Harlson,
Christian

Christine
McHale,
            Gary McHale, Hetty Van Halteren, Jacob Van Halteren

O.P.P. Commissioner Chris Lewis, Superintendent
            John Cain, Sergeant Brad Moore, Inspector Phil Carter and

Her Majesty the Queen in right of Ontario

CV-14-146

Stuart Laughton, Ted Harlson, Gary McHale, Randy
            Fleming, Jacob Van Halteren, Doug Fleming

O.P.P. Commissioner Chris Lewis, Sergeant Brad
            Moore, Inspector Phil Carter and
Her Majesty the
            Queen in right of Ontario

CV-16-16

Randy Fleming

Ken Decloet, Jeffrey Gray, Steven Lorch, Brad Moore, Phil
            Carter, John Cain, Chris Lewis and
Her Majesty the Queen in right of
            Ontario

[1]

The styles of cause as expressed in the orders appealed from
    are set out in Appendix A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Medcof (Re), 2018 ONCA 1011

DATE: 20181211

DOCKET: C65526

Hoy A.C.J.O., Feldman and Fairburn JJ.A.

IN THE MATTER OF: William Medcof

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Holly Loubert, for the respondent Attorney General of
    Ontario

Gavin S. MacKenzie, for the respondent Person in Charge
    of the Centre for Addiction and Mental Health

Heard: December 7, 2018

On appeal against the disposition of the Ontario Review
    Board, dated May 22, 2018, with reasons reported at [2018] O.R.B.D. No 1306.

REASONS FOR DECISION

[1]

This is an appeal from
    the Ontario Review Boards May 22, 2018 disposition, continuing the appellants
    conditional discharge.

[2]

The appellant advances
    a number of arguments, but fundamentally says that the Boards conclusion that
    he remains a significant threat to the safety of the public  and corresponding
    refusal to order an absolute discharge  was unreasonable.

[3]

We disagree. The
    Boards conclusion that the appellant remains a significant threat to public
    safety fell within the range of reasonable outcomes available on the evidence
    before the Board. That evidence includes, but is not limited to, the following:
    (a) the appellant suffers from a major mental illness; (b) the index offences were
    very serious; (c) the appellant lacks insight into his mental illness, his need
    to continue treatment, and the role his illness played in the index offences; (d)
    the appellants historic resistance to treatment, and stated intention to
    discontinue his psychotropic medication if absolutely discharged; (e) the
    appellants history of decompensation when off his medication, or when
    sub-optimally medicated; (f) the appellants high scores on actuarial and
    clinical risk assessments for violence; and (g) the unanimous conclusion of the
    appellants treatment team that he remains a significant risk to public safety.

[4]

The appellant argues
    that the Board failed to give proper weight to the fact that he has not engaged
    in any violent behaviour during the considerable period of time (17 years) that
    he has been subject to the jurisdiction of the Board. He points to this courts
    decision in
Medcof (Re),
2018 ONCA 299, concerning the appellants previous disposition, where the
    panel directed, at para. 60, that at the appellants next annual review the
    Board should:

more fully engage with the issues of the
    significance of the appellants continuing non-violent behaviour (assuming it
    continues), the passage of time and the correlation between these factors and
    the risk of serious harm in the event of decompensation.

The
    appellant contends that the Board did not heed that direction.

[5]

We disagree. The Board
    had specific regard to this courts comments, and addressed the issues
    identified by this court in some detail. In particular, the Board examined all
    of the evidence before it and concluded that the appellant had been able to
    live in the community successfully for as long as he has only as a direct
    result of the protective effect of his medication: at para. 26. The Board appreciated
    the risk of a virtually indefinite period of [Board] oversight for [the
    appellant], which it specifically noted to be a concern: at para. 26. The
    Board also noted that the appellants treatment team continues to explore other
    options for managing the appellant, including the possibility of placing him on
    a Community Treatment Order, which could potentially allow the appellant to
    transition to an absolute discharge. The Board expressly encouraged those
    efforts: at para. 27.

[6]

When the Boards
    Reasons for Disposition are read contextually, it is clear that the Board was
    alive to the fact that the appellant has been subject to the jurisdiction of
    the Board for a considerable period of time, without engaging in any violent
    behaviour. The Board engaged with the issues identified by this court in last
    years appeal, and ultimately came to the conclusion that, in light of all of
    the evidence, the appellant remains a significant risk to the safety of the
    public. We see no error in that approach.

[7]

Relatedly, we do not
    agree that the Board reversed the burden of proof and required the appellant to
    disprove a presumption of dangerousness. While the Board adverted to the
    serious nature of the index offences in its analysis, it did not presume that
    the appellant continued to pose a significant risk to public safety solely
    because of the index offences. Similarly, while the Board observed, at para.
    26, that there was no expert evidence before [it] that connects, as a matter
    of logic, the length of time that [the appellant] has been stable with the
    likelihood that he would maintain that stability without a disposition from the
    Board, this did not have the effect of requiring the appellant to advance
    evidence to rebut a presumption of dangerousness. To the contrary, when coming
    to its conclusion about the appropriate disposition, the Board relied upon
    positive evidence of risk to public safety, including the evidence enumerated
    above.

[8]

Finally, we disagree
    that the Board applied the incorrect legal test, and focused only on the
    likelihood that the appellant would re-offend, while failing to consider the
    potential gravity of harm if he did. There was cogent evidence before the Board
    that when not medicated and suffering from active psychosis, the appellant
    engages in physically violent and other criminal behaviour that poses a
    significant risk of physical or psychological harm to individuals in the
    community. His index offence involved kidnapping his mother, restraining her
    and hitting her with a golf club. The Board explicitly stated that it
    considered there to be a risk of grave harm: at para. 28.

[9]

For the foregoing
    reasons, the appeal is dismissed.

Alexandra Hoy A.C.J.O.
K. Feldman J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Morrison v. Barzo, 2018 ONCA 979

DATE: 20181205

DOCKET: C64356

van Rensburg, Brown and Miller JJ.A.

BETWEEN

Jeffrey
    Morrison, Janet-Lynn Morrison, and the minors

Cassidy
    Morrison, Eve Morrison and Madeline Morrison,

by their Litigation
    Guardian Jeffrey Morrison

Plaintiffs (Appellants)

and

Michael Barzo D.C. and The Chiropractic Life
    Centre

Defendants

and

Cristina
    Edwards and Dr. Charles Murphy

Third Parties (Respondents)

Joseph Obagi and Elizabeth Quigley, for the appellants

Avi Sharabi, for the respondent, Cristina Edwards

Meredith Jones and Nada Nicola-Howorth, for the
    respondent, Charles Murphy

Andrew Faith and Eric Brousseau, for the respondent
    Susan Boulanger

Heard: April 16, 2018

On appeal from the judgment of Justice Anne Mullins of
    the Superior Court of Justice, dated August 29, 2017, with reasons reported at
    2017 ONSC 4919.

van Rensburg J.A.:

OVERVIEW

[1]

The appellants brought a motion to add defendants
    to a medical malpractice action. They appeal the dismissal of their motion.

[2]

Jeffrey Morrison was injured allegedly in the
    course of a chiropractic treatment. He and his family members started an action
    against the chiropractor, Dr. Michael Barzo. Two years later the appellants
    sought to add as defendants to the action, the three respondents, who are also
    health care providers who treated Mr. Morrison in the days following his
    original injury. The motion was dismissed on the basis that the limitation
    period had expired against the proposed defendants. For the reasons that follow,
    I would allow the appeal.

[3]

Briefly, in my view the motion judge applied the
    wrong test in dismissing the motion. First, she did not make findings of fact
    as to when the appellants knew of the matters listed in s. 5(1)(a) of the
Limitations Act, 2002
,

S.O. 2002, c. 24, Sch. B (the
Limitations
    Act
) in relation to their claims against the respondents,
    or under s. 5(1)(b) as to when they ought reasonably to have known of such
    matters. She was required to make these findings on the evidentiary record
    before concluding that the appellants claim against the respondents had been discovered
    more than two years before the motion was brought and that the limitation
    period had already expired against the respondents.

[4]

Second, the motion judge pointed to the
    appellants failure to explain the steps they had taken to investigate the
    potential claims against the respondents, and concluded that the appellants had
    not discharged their burden to establish due diligence. While a plaintiffs due
    diligence is potentially relevant to the question under s. 5(1)(b) of the
Limitations
    Act
as to when a claim ought reasonably to have been
    discovered, the failure to take reasonable steps to investigate a claim is not
    a stand-alone or independent ground to find a claim out of time. The motion
    judge erred in dismissing the motion on this basis.

[5]

Applying the correct test, and on the evidence
    before the court at this stage, it is not clear that the appellants claims
    against any of the respondents ought reasonably to have been discovered by the
    appellants more than two years before they moved to join the respondents as
    defendants to the action.

[6]

I would therefore allow the appeal, grant leave
    to the appellants to add the respondents as defendants to the action, and
    permit the respondents to plead the expiry of a limitation period in their
    defence.

FACTS

[7]

The appellants started their action on June 24,
    2013, claiming that the defendant Dr. Barzo was negligent in his treatment of
    Mr. Morrison. The essence of the claim is that on June 23, 2011, during a
    chiropractic treatment, Dr. Barzo forcefully twisted Mr. Morrisons spine,
    causing a lumbar disc protrusion and
cauda equina
syndrome (CES). Mr. Morrison was diagnosed with CES on July 14,
    2011 and required emergency surgery the next day.

[8]

Dr. Barzos statement of defence was delivered
    on May 6, 2014. On May 13, 2014, he third partied two of the three respondents:
    Cristina Edwards, a registered massage therapist, and Charles Murphy, a family
    doctor. The third party claim asserts that Mr. Morrisons alleged lumbar disc
    injury and CES resulted from circumstances occurring subsequent to the June 28,
    2011 chiropractic treatment. It also asserts that both third parties were
    negligent in their treatment of Mr. Morrison between the date of the
    chiropractic treatment and the referral on July 14 for emergency surgery.

[9]

The third parties defended the main action and
    the third party claim. Examinations for discovery took place in May and June
    2015.

[10]

On May 11, 2016, and just less than two years after
    the third party claim was issued, the appellants moved to add as defendants to
    the action, Ms. Edwards, Dr. Murphy, as well as Susan Boulanger, a nurse
    practitioner in Dr. Murphys medical office. The draft amended statement of
    claim alleges that certain acts and omissions of the respondents between the
    date of the chiropractic treatment and when Mr. Morrison received emergency
    surgery were negligent. The allegations against Ms. Edwards and Dr. Murphy
    track the allegations set out in Dr. Barzos third party claim. The allegations
    against nurse-practitioner Ms. Boulanger are in essence that she neglected to
    respond in a timely way to Mr. Morrisons complaints with referrals and
    diagnostic tests.

[11]

The appellants motion was supported by an
    affidavit of their counsel, Ms. Oakley. The affidavit explained that it was not
    until certain information was provided at the examinations for discovery that
    she concluded that there were grounds to add the respondents as defendants. In
    fact, in June 2014, after receiving the third party claim, the appellants
    counsel had advised Dr. Murphys counsel that she did not believe that a claim
    against Dr. Murphy was appropriate.

[12]

The respondents counsel cross-examined Ms.
    Oakley and Mr. Morrison. At the conclusion of her cross-examination, Ms. Oakley
    provided three schedules setting out the new facts she had discovered in
    relation to each respondent at the time of the third parties examinations for
    discovery, which led her to believe that they ought to be added as defendants. Her
    counsel indicated that she was willing to answer questions about these documents,
    which were made lettered exhibits to the cross-examination. Examining counsel
    reserved their right to ask Ms. Oakley questions about the summaries; however,
    there was no further examination on this information. Ms. Oakley delivered an
    affidavit following her examination attaching the same documents. Although this
    procedure was irregular, in that Ms. Oakley ought to have included the schedules
    in her original affidavit before she was cross-examined, and she ought not,
    without leave, to have filed an affidavit after she had been cross-examined, it
    appears that all of this material was before the motion judge. No argument was
    made to this court that the schedules prepared by Ms. Oakley were inadmissible
    on the motion; indeed, they were relied on in argument.

[13]

For their part, the respondents did not file any
    evidence, other than an affidavit of counsel setting out certain communications
    between Ms. Oakley, Dr. Barzos counsel, and Dr. Murphys counsel, before and
    at the time the third party claim was issued. In these, Ms. Oakley expressed
    her belief that there was no basis for a claim against Dr. Murphy. The clinical
    notes and records of the respondents, which had been received by the
    appellants counsel at the latest by October 2013, were included in the record
    that was before the motion judge.

THE MOTION JUDGES
    DECISION

[14]

The motion judge noted that the appellants
    position was that they were unaware of the respondents negligent acts and
    omissions until the spring of 2015, when the third parties were examined for
    discovery. She set out their position that it was only at that point that the
    appellants discovered that:

(a)

Ms. Edwards had
    realized Mr. Morrisons symptoms might indicate a spinal nerve impingement or
    herniated disc, but she never alerted Mr. Morrison or his other health care
    providers to this fact;

(b)

Ms.
    Boulanger ordered Mr. Morrisons x-rays but failed to call for them on an
    urgent basis or to follow up, and she gave Mr. Morrison inadequate discharge
    instructions; and

(c)

Dr.
    Murphy provided consultation in Mr. Morrisons care on July 6, 2011. He failed
    to perform a rectal exam and to follow up in a timely manner when he became
    aware Mr. Morrison exhibited symptoms indicating CES.

[15]

The motion judge did not review or assess the
    evidence about when the appellants knew or ought to have known the facts that
    were material to their claims of negligence against each respondent. She
    concluded, however, at para. 35 of her reasons, that the appellants must
    reasonably be taken to know whether the proposed defendants received and acted
    upon Jeffrey Morrisons complaints of back pain between June 28 and July 15,
    2011. She noted that Mr. Morrison had met with and was treated by each, and
    that he was aware of his alleged injury and its consequences immediately.

[16]

The motion judge stated, at para. 36, that the
    joinder of parties outside of a limitation period gives rise to a presumption
    of prejudice that the plaintiffs have the burden of displacing with evidence of
    some diligence in discovering their claims. She also noted, at para. 39, that
    the plaintiffs had the burden to lead evidence of the steps they took to
    discover the necessary information.

[17]

Referring to the proposed amendments to the
    statement of claim, the motion judge observed that the allegations of
    negligence were virtually identical against all parties, and that there was
    little evidence of the moving parties having proactively taken steps to
    discover their claims against the proposed defendants. She concluded, at para.
    41:

I find as fact that the plaintiffs were as
    reasonably capable of discovering any wrongful nature of the proposed
    defendants acts and their nexus to Mr. Morrisons alleged injury at virtually
    the same time as they discovered their alleged claims against Dr. Barzo. The
    plaintiffs have not discharged the burden of having exercised reasonable
    diligence in the discovery of facts necessary to found a pleading of medical
    malpractice in these circumstances.

[18]

Accordingly, the motion judge dismissed the motion
    to add the respondents as defendants to the action.

POSITIONS OF THE
    PARTIES

[19]

The appellants contend that the motion judge
    erred in two ways. First, she failed to make any finding on the evidence as to
    when they ought reasonably to have known about their claims against the
    respondents (except to say that it was at the same time as they knew about
    their claims against Dr. Barzo). The appellants say that the evidence does not
    support a finding that they ought reasonably to have known that the three
    respondents caused or contributed to Mr. Morrisons injuries more than two
    years before they sought to add them as defendants to the action. Second, the
    appellants assert that the motion judge erred in dismissing their motion based
    on her conclusion that they did not demonstrate due diligence.

[20]

Although there are differences between the
    positions of the respondents on appeal, essentially they all assert that the
    motion judges dismissal of the motion was properly based on her finding, which
    was supported by the evidence, that the appellants ought reasonably to have
    discovered their claims against the respondents at the same time as they
    discovered their claims against the chiropractor. The respondents Ms. Boulanger
    and Ms. Edwards continue to assert that the motion judge properly took into
    consideration the appellants failure to adduce evidence of the steps they took
    to investigate the respondents potential negligence, and they contend that
    lack of due diligence is a proper factor in motions of this sort, to rebut the
    presumption of prejudice. Alternatively, if the motion judge erred in the
    test she applied, the respondents ask that this court, applying the correct
    test, uphold the decision dismissing the motion. They rely on the information
    contained in the clinical records, as well as the proposed amended pleading,
    and assert that the allegations against the respondents contain no new material
    facts, and that substantially all of what is alleged ought to have been known
    to the appellants around the time Mr. Morrison was diagnosed with CES.

ANALYSIS

[21]

As I will explain, the motion judge erred when
    she diverged from the clear scheme of the
Limitations
    Act
to decide whether the limitation period had
    expired.

[22]

First, the motion judge proceeded on the basis
    that there was a presumption of prejudice, when a party is added to
    litigation after the expiry of a limitation period, that the appellants had to
    overcome by establishing due diligence. This is inconsistent with the framework
    under the
Limitations Act
,

where due diligence is now part of
    the determination of a claims discoverability under s. 5(1)(b), and s. 21
    prohibits the addition of a party to an action where a limitation period has
    expired, whether or not there is prejudice to the defendant.

[23]

Second, the motion judge did not make findings
    of fact as to when the appellants actually discovered the claim or when they ought
    reasonably to have done so (other than to say that it was at virtually the
    same time as they discovered their claims against Dr. Barzo).

[24]

Third, the motion judge made her determination
    that the limitation period had already expired in reliance on the broad
    allegations contained in the draft amended statement of claim, and without
    having identified and considered the appellants core claims against the
    respondents, and the evidence in relation to when such claims were or ought
    reasonably to have been discovered. The motion judge, pointing only to Mr.
    Morrisons treatment dates, concluded that the claims against the respondents
    ought to have been discovered around the same time the appellants discovered
    their claims against Dr. Barzo. When the claims against the respondents are
    properly considered, however, the evidence on the motion does not support the
    conclusion that the appellants ought reasonably to have discovered all of the
    respondents potentially negligent acts or omissions before the third party
    examinations for discovery.

(1)

Where a limitation period may have expired, the
Limitations
    Act
establishes the test for adding parties

[25]

Subrule 5.04(2) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 provides for the
    addition of parties during a proceeding:

At any stage of a proceeding the court may by
    order add, delete or substitute a party or correct the name of a party
    incorrectly named, on such terms as are just, unless prejudice would result
    that could not be compensated for by costs or an adjournment.

[26]

At the same time, s. 21(1) of the
Limitations
    Act
prohibits the addition of a party to a proceeding
    where the limitation period has expired:

If
    a limitation period in respect of a claim against a person has expired, the
    claim shall not be pursued by adding the person as a party to any existing
    proceeding.

[27]

In
Arcari v. Dawson
, 2016 ONCA 715, 134 O.R. (3d) 36, leave to appeal to SCC refused, [2016]
    S.C.C.A. No. 522, at para. 7, this court observed that the effect of s. 21(1)
    is that the clear expiration of a limitation period is an absolute bar to the
    addition of a party to an already existing action.

[28]

Under the current
Limitations Act
, the date of discovery is key to assessing whether the limitation
    period in respect of a claim has expired. Sections 4 and 5 provide as follows:

4.

Unless
    this Act provides otherwise, a proceeding shall not be commenced in respect of
    a claim after the second anniversary of the day on which the claim was
    discovered.

5.

(1)

A claim is discovered on the earlier of,

(a) the day on which
    the person with the claim first knew,

(i) that the
    injury, loss or damage had occurred,

(ii) that the
    injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act
    or omission was that of the person against whom the claim is made, and

(iv) that, having
    regard to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which
    a reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

(2) A person with a claim shall be presumed to
    have known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is
    proved.

[29]

Where there is a question as to whether claims
    covered by the basic two-year limitation period are statute-barred, such that
    parties cannot be added pursuant to s. 21(1) of the
Limitations Act
, the court must make a finding as to when the plaintiff first knew
    the elements of the claim listed in s. 5(1)(a). If the date of actual
    discovery, as determined by the court, would bring the claim within the
    limitation period, and the proposed defendant relies on reasonable discoverability
    to contend the claim was brought outside the prescription period, the court
    must go on to determine under s. 5(1)(b) when a reasonable person with the
    abilities and in the circumstances of [the plaintiff] first ought to have known
    of the matters referred to in clause (a). While a plaintiffs due diligence is
    relevant to the finding under 5(1)(b), the absence of due diligence is not a
    separate basis for dismissing a claim as statute-barred: see
Fennell
    v. Deol
,
2016 ONCA 249, 97 M.V.R. (6th) 1, at
    paras. 18 and 24;
Galota v. Festival Hall Developments Ltd
., 2016
    ONCA 585, 133 O.R. (3d) 35, at para. 23.
This is the
    case whether expiry of the limitation period is at issue in a motion for
    summary judgment or in a motion to add a defendant:
Mancinelli v.
    Royal Bank of Canada
, 2018 ONCA 544, 24 C.P.C. (8th) 1, at
    para. 30.

[30]

Reasonable discoverability of a claim under s.
    5(1)(b) that precludes adding a party contrary to s. 21(1) requires an
    evidentiary foundation. The court must be satisfied that a reasonable person in
    the plaintiffs circumstances ought to have discovered the claim, and the date
    of such reasonable discovery must be determined. It is not sufficient for the
    court to say that the claim was discoverable before the expiry of the limitation
    period, without explaining why. It may be that the date of reasonable
    discoverability can only be determined at a later stage in the proceedings, at
    trial or on a summary judgment motion. In such a case, the motion to add the
    defendant should be granted, with leave for the defendant to plead a limitation
    defence:
Mancinelli
, at paras. 31 and 34.

[31]

The evidentiary burden on a plaintiff seeking to
    add a defendant to an action after the apparent expiry of a limitation period
    is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that
    he or she knew of the matters referred to in s. 5(1)(a) on the day the act or
    omission on which the claim is based took place, by leading evidence as to the
    date the claim was actually discovered (which evidence can be tested and
    contradicted by the proposed defendant). The presumption is displaced by the
    courts finding as to when the plaintiff subjectively knew he had a claim
    against the defendants:
Mancinelli
, at para.
    18. To overcome the presumption, the plaintiff needs to prove only that the
    actual discovery of the claim was not on the date the events giving rise to the
    claim took place. It is therefore wrong to say that a plaintiff has an onus to
    show due diligence to rebut the presumption under s. 5(2):
Fennell
, at para. 26.

[32]

Second, the plaintiff must offer a reasonable
    explanation on proper evidence as to why the claim could not have been
    discovered through the exercise of reasonable diligence. The evidentiary
    threshold here is low, and the plaintiffs explanation should be given a
    generous reading, and considered in the context of the claim:
Mancinelli
, at paras. 20 and 24.

(2)

The application of the test requires that the
    claims be defined and the evidence considered

[33]

Section 5(1)(a) of the
Limitations
    Act

sets out the elements that must be known to a
    plaintiff before a claim is discovered. The issue here is not (as in many other
    cases) the identification of the respondents involvement in the matters at
    issue. Rather, the discoverability issue in this case relates to when the
    appellants discovered the facts relating to the respondents negligence in Mr.
    Morrisons care; more specifically, when, under s. 5(1)(a)(ii) and (iii), the
    appellants knew or ought reasonably to have known that an act or omission of
    each respondent caused or contributed to Mr. Morrisons injuries.

[34]

In a medical malpractice action, a claim is
    discovered when the claimant knows the facts that form the core of [the
    plaintiffs] claim of substandard medical treatment:
Lawless v. Anderson
, 2011 ONCA 102, 81
    C.C.L.T. (3d) 220, at para. 26. As M.G.J. Quigley J. observed in
Thompson v. Sehgal
, 2012 ONSC 3258, at
    para. 42:

T
he material facts of which the
    plaintiff must be aware before the limitation period can commence to run are
    those which would constitute negligence. Negligence itself is composed not only
    of the breach of an applicable standard of care, but also the causation to give
    rise to a cause of action.

[35]

As I will explain, in my view, the motion judge
    erred in failing to identify the key difference between the appellants claims
    against Dr. Barzo and their claims against the respondents. The claim against
    Dr. Barzo is that he caused an injury during a chiropractic treatment. The core
    of the claim against all three respondents, by contrast, is that, after this
    traumatic injury had already occurred, and between June 28, 2011 and July 15,
    2011 when Mr. Morrison had emergency surgery, they
contributed to

or
exacerbated

Mr. Morrisons
    injuries in their approach to treating him and/or by failing to take more
    immediate action to respond to the original traumatic injury. And if it turns
    out, as the appellants assert, that the obligation to take certain immediate action
    only arose if and when the respondents suspected CES, or in the case of Ms.
    Edwards, a spinal nerve injury, then this affects the date of reasonable
    discovery.

[36]

I turn to examine the specific allegations
    against each respondent, and the evidence that was before the motion judge.

(i)

The claim against Dr. Murphy

[37]

Dr.
    Murphys involvement in Mr. Morrisons care was at the medical clinic where
    both Ms. Boulanger and Dr. Murphy worked. The records of the clinic indicate
    that Ms. Boulanger provided treatment to Mr. Morrison on June 28, 2011 and July
    6, 2011. A note dated July 6, 2011 by Ms. Boulanger states that she would consult
    Dr. Murphy regarding a prescription for narcotics and x-rays. A lumbar spine
    x-ray was ordered the same day. There is also a note on the same day from Ms. Boulanger
    saying To Emerg if pain gets unbearable. On July 11, 2011, Dr. Murphy saw Mr.
    Morrison and ordered an urgent CT scan. After receipt of the CT scan, he
    advised Mr. Morrison to urgently attend to see a neurosurgical specialist.

[38]

On
    his examination for discovery, Dr. Murphy recounted having spoken with Ms.
    Boulanger on July 6 about Mr. Morrisons symptoms, which included a positive
    neurological sign, and that, as a result he ordered an urgent CT scan. Dr.
    Murphy also recalled that he had ordered an x-ray as a preliminary step in
    order to secure a CT scan appointment to rule in or out the top two conditions
    that he was investigating (one of which was CES). He agreed that it was
    important to rule out nerve impingement, nerve involvement, or CES as quickly
    as possible.

[39]

The
    appellants contend that, prior to the examinations for discovery, they were
    unaware that Dr. Murphy had been involved in Mr. Morrisons care other than in
    consultation with Ms. Boulanger, or that CES was part of Dr. Murphys
    differential diagnosis. It was only when they learned these facts that they
    could conclude that Dr. Murphy ought to have undertaken a rectal examination.
    According to the appellants, the fact that a rectal examination was not done is
    significant only in conjunction with the knowledge that Dr. Murphy was actively
    looking to rule in or out CES.

(ii)

The claim against Susan Boulanger

[40]

Susan
    Boulanger, a nurse practitioner, was responsible for Mr. Morrisons care on
    June 28, 2011 and July 6, 2011. The records indicate that she recorded his
    symptoms, assessed his lower back pain, ordered an x-ray, and provided
    prescriptions for medication and physiotherapy.

[41]

The
    core allegations against Ms. Boulanger are that she did not order x-rays on a
    stat or urgent basis, that she did not follow up on the x-rays within 24 to
    48 hours, and that she gave the wrong discharge instructions to Mr. Morrison,
    instructing him to go to the hospital only if his pain became unbearable.

[42]

Ms. Boulangers counsel contends that all of the new facts
    allegedly discovered from Dr. Murphys examination for discovery were contained
    in the clinical notes and records that were in appellants counsels hands at
    the latest by October 2013.
The fact that Ms. Boulanger was
    the person who ordered the x-ray but not urgently is apparent in the clinical
    notes and records. It was also clear from the records that no one followed up
    or received the x-ray results within 24 to 48 hours. It was also clear what
    discharge instructions were given.

[43]

As
    is the case with Dr. Murphy, the important information the appellants say they
    only obtained at the examinations for discovery was that both Dr. Murphy and
    Ms. Boulanger were considering CES as part of their differential diagnosis.
    This fact was not recorded in the clinical notes, and this is what made their
    subsequent delay in investigating the condition negligent. It was only revealed
    in Dr. Murphys examination for discovery that Mr. Morrisons x-ray was ordered
    as a stepping stone for a CT scan or MRI which was urgently required to rule
    out or in CES. As such, it was only in that context that Ms. Boulangers
    failure to mark the x-rays as urgent or to follow up on the x-rays demonstrated
    negligence. The appellants also contend that, without Dr. Murphys evidence,
    they would not have known that there was a problem with Ms. Boulangers
    discharge instructions  and that she had not followed Dr. Murphys directions
    to instruct Mr. Morrison to go to the hospital if the pain got worse or was not
    controlled by pain medication.

[44]

In oral argument on the appeal, Ms. Boulangers
    counsel argued that there was no evidence that Ms. Boulanger was considering a
    potential diagnosis of CES, which is the context in which the appellants say
    that her failure to order the x-rays stat and to follow up on the results
    were negligent. This is incorrect. In his examination for discovery, Dr. Murphy
    testified that both he and Ms. Boulanger were proceeding on the assumption that
    the cause of Mr. Morrisons back pain might have been CES.

(iii)

The claim against Cristina Edwards

[45]

Cristina
    Edwards was a massage therapist who treated Mr. Morrison on two occasions: June
    28 and June 30, 2011. Her treatment notes indicated only the dates of treatment
    and that the treatments provided Mr. Morrison with temporary relief.

[46]

The
    appellants point to the fact that, at her examination for discovery, Ms.
    Edwards testified that she modified her massage treatments on the basis that
    she thought that Mr. Morrison might have a spinal nerve impingement. She also
    noticed that his gait was altered. She testified that she never told Mr.
    Morrison that she was considering the possibility that he had sustained a
    serious or significant nerve injury in the spine, nor did she record these
    observations in her notes.

(iv)

The core of the allegations against all three
    respondents

[47]

The details of each respondents involvement in
    Mr. Morrisons treatment make clear that the nature of the claims against all
    the respondents differs from the claim against Dr. Barzo. That is, in relation
    to all of the respondents, but not Dr. Barzo, it is alleged that they may only
    have failed to meet the standard of care by failing to take immediate action
once
    CES and/or spinal nerve injury was suspected
.

[48]

At the root of the appellants argument about
    discoverability of the claims against the respondents in this case is that CES
    is a relatively rare diagnosis. The respondents do not suggest otherwise. The
    appellants contend that it was only when it became apparent that Dr. Murphy and
    Ms. Boulanger were actually considering and attempting to rule out CES that
    their failure to conduct the necessary investigations on an urgent basis
    revealed negligence. Similarly, it is alleged that Ms. Edwards treatment would
    only have been negligent if she was considering the possibility that Mr.
    Morrison had sustained a serious spine injury. That the respondents Dr. Murphy
    and Ms. Boulanger actually turned their minds to the possibility of CES, and
    that Ms. Edwards suspected a spinal nerve injury, is the new information that the
    appellants assert was revealed during the examinations for discovery.

(3)

The application of the test

(i)

Section 5(1)(a): when the appellants knew of
    their claims against the respondents

[49]

After identifying the core claim or claims in
    question, s. 5(1)(a) requires a finding as to when the claim was actually
    discovered.

[50]

The appellants knew of

Mr. Morrisons primary injury, allegedly caused by the chiropractic
    treatment, at the time that Mr. Morrison was diagnosed with CES. They knew that
    Ms. Edwards and Ms. Boulanger were involved in Mr. Morrisons treatment shortly
    after the chiropractic treatment, but assert that they did not know of Dr.
    Murphys consultative involvement. They also assert that they did not know that
    the respondents contributed to the injury until they discovered that the
    respondents suspected CES but took no urgent action.

[51]

I agree with the appellants that there is no
    evidence on this record that they had any actual knowledge, prior to 2015, that
    the treatment provided to Mr. Morrison by the respondents caused or contributed
    to his injuries. To the contrary, the appellants position is that Mr.
    Morrisons chiropractic treatment on June 24, 2013 caused a traumatic injury
    that led to his diagnosis of CES. The only information relevant to the
    respondents involvement in his care that was available to the appellants, prior
    to the examinations for discovery, was in their clinical notes. These notes,
    however, contain no indication that any of the respondents suspected that Mr.
    Morrison might be suffering from a serious condition or traumatic injury that
    required urgent care.

[52]

It was only at the examinations for discovery that
    the appellants became aware of Dr. Murphys involvement  consulting behind the
    scenes with Ms. Boulanger  prior to July 11, 2011. It was also at the
    examinations for discovery that the appellants first discovered that Dr. Murphy
    and Ms. Boulanger were working with two differential diagnoses, one of which
    was CES.

[53]

Similarly,
at her examination for discovery, Ms. Edwards
    testified that she never told Mr. Morrison that she was considering the
    possibility that he had sustained a serious or significant nerve injury in the
    spine, and she did not record these observations in her notes.

[54]

In my view, the record before us is sufficient
    to conclude that the appellants did not have actual knowledge of the elements
    of their claims against the respondents until they learned, during the
    examinations for discovery, that all three respondents had suspected spinal
    injury at the time of treatment.

(ii)

Section 5(1)(b): when a reasonable person ought
    to have known of the claim against the respondents

[55]

The key question in this case remains, then, on
    what day
a reasonable person with the abilities and in
    the circumstances of the person with the claim first ought to have known of the
    matters referred to in clause (a). Unfortunately, this question was never directly
    answered by the motion judge.

[56]

Instead, the motion judge stated, at para. 40,
    that the pleadings do not discernibly relate or rely upon facts the plaintiffs
    say they discovered at Ms. Edwards and Dr. Murphys discoveries. Rather, the
    pleadings rely only on the defendants identities, their medical qualifications,
    and the fact they treated Mr. Morrison for his back complaints.

[57]

The motion judge also asserted, at para. 40,
    that [t]he allegations of negligence are virtually identical against all of
    the parties and that [t]here is little evidence of the plaintiffs proactively
    taking any steps to discover any claims against these proposed defendants.

[58]

This analysis unfortunately overlooks the
    important difference between the claims against the respondents and the claim
    against Dr. Barzo, as I have outlined above.

[59]

And while due diligence is relevant to when a
    reasonable person ought to have discovered a claim  demonstrating due
    diligence as well as no actual knowledge of all elements of the claim can
    certainly provide strong evidence that a reasonable person could not have
    discovered the claim sooner  the absence of due diligence does not necessarily
    establish that the two-year period has run out.

[60]

Instead, the motion judge was required, after
    clearly defining the nature of the claims against the respondents on the
    evidence, and after finding no actual knowledge of the claims, to make a
    specific finding of fact as to when a reasonable person with the abilities and
    in the circumstances of the appellants first ought to have known of the
    matters referred to in clause (a).

[61]

As
Mancinelli
states at para. 31, where s. 5(1)(b) is in issue in a motion to add a
    defendant, the motion should not be dismissed in the absence of evidence that
    the plaintiff could have obtained the requisite information with due diligence
    such that there is no issue of credibility or fact warranting a trial or
    summary judgment motion.

[62]

Such evidence was absent here. There was no
    evidence to suggest how the potentially relevant information about suspected
    diagnoses could reasonably have been obtained before it was in fact discovered.

[63]

Finally, the respondents argue that, at the
    latest, the appellants claims against them were reasonably discoverable when
    the appellants were served with Dr. Barzos third party claim, which set out
    specific allegations against Dr. Murphy and Ms. Edwards. The respondents
    contend that the appellants ought reasonably to have discovered their claims
    against the respondents when they obtained this information.

[64]

If this is the case, however, and the claims
    against the respondents were reasonably discoverable at or around the time the
    third party claim was issued, the claims are not statute-barred. The third
    party claim was issued on May 13, 2014 and the motion to add defendants was
    brought on May 11, 2016, which is still within the applicable two-year limitation
    period.

[65]

Accordingly, the appropriate disposition is to
    permit the addition of all three respondents to the action, with leave for the
    respondents to plead the expiry of the limitation period in their defence.

CONCLUSION
    AND DISPOSITION

[66]

For these reasons, I would allow the appeal. I
    would set aside the order of the motion judge, and order that the appellants
    are permitted to join the respondents as defendants to the action, and that the
    respondents are at liberty to plead the expiry of the limitation period as a defence.
    I would award the appellants costs of the appeal fixed at $23,000, and of the
    motion in the Superior Court fixed at $20,000, both amounts inclusive of
    disbursements and HST, and payable jointly and severally by the respondents.

Released: December 5, 2018

K. van Rensburg
    J.A.

I agree David Brown
    J.A.

I agree B.W. Miller
    J.A.