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Defining The Parameters of Limitation Periods In Personal Injury Actions

Defining The Parameters of Limitation Periods In Personal Injury Actions
By Steven Muller

Introduction

A limitation period is a stated period of time, the expiry of which extinguishes a party's legal remedy and forbids the commencement of a legal action. Each province in Canada has general statutes of limitations and many provincial and federal statutes contain limitation periods applicable to a variety of causes of actions. Traditionally, limitation periods have been strictly enforced. More recently, the subject of when time begins to run has received greater attention from our courts.

The discoverability rule has evolved fairly recently in our civil jurisprudence.1 It gives relief in certain factual situations by extending a limitation period. According to the discoverability rule, a limitation period begins to run when the material facts upon which an action is based have been discovered, or ought to have been discovered by the plaintiff through the exercise of due diligence. The effect of the rule is to postpone the running of time until a reasonable person, in the exercise of reasonable diligence, would discover the facts necessary to maintain the action.2 It is a general rule applied to avoid injustice.

It is now over two years since the Supreme Court of Canada upheld the Ontario Court of Appeal's decision in Peixeiro v. Haberman. Justice Major in Peixeiro adopted Taddle's J. A.'s statement in Fehr v. Jacob (1993), 14 C.C.L.T. (2d) 200 (Man. C.A.) at 206, which is as follows:

In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from "the accrual of the cause of action" or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party's knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.

In Peixeiro the court concluded that the limitation period under the Ontario Highway Traffic Act did not start to run in a personal injury action arising out of an automobile accident until the plaintiff discovered facts that could sustain a claim that his or her injuries met the threshold under the Insurance Act.

Since Peixeiro, the discoverability rule has enjoyed broad application in Ontario in motor vehicle actions and actions against municipalities and the provincial crown. As such there is now a body of jurisprudence on the scope and application of Peixeiro. The purpose of this paper is to review the way Ontario courts have applied Peixeiro in the context of personal injury litigation so that the parameters of the present authorities in the area of motor vehicle actions and actions against municipalities and the provincial crown can be better understood and defined.3

The Debate Between The Broad And Restrictive Application Of The Rule

The discoverability rule and the Supreme Court's treatment of Peixeiro have received mixed reviews amongst the legal profession in Ontario. Critics of the broad application argue that the rule provides the potential for almost indefinite postponement of the commencement of time.

They argue that Peixeiro did not provide a license to a potential plaintiff to ignore time limits and the rule has increased litigation especially where a prior solicitor has been negligent in not commencing an action. Proponents of the broad application argue that the discoverability rule is a broad and strong rule to be used to avoid prejudice to a plaintiff. They argue that Peixeiro should be interpreted to mean that that the running of time does not start until a medical opinion is given that positively asserts that the plaintiff's injuries meet the threshold in motor vehicle actions in Ontario.4

Limitation Periods Relating To Motor Vehicle Injury Litigation

Ontario, like many other provinces, has enacted legislation prescribing a limitation period specifically for damages or injury occasioned by a motor vehicle. In Ontario, time begins to run in a motor vehicle accident when the damages are "œsustained". Since June 22, 1990, legislative changes to the Insurance Act, commonly referred to as OMPP, Bill 164 and now Bill 59, have outlined exceptions for when a tort claim can be maintained by an injured party. A potential plaintiff must now pass what is now commonly referred to as a threshold in order to maintain a cause of action. The threshold requirements are different in OMPP, Bill 164 and Bill 59 legislation and cause some difficulty for counsel advising a potential plaintiff if they have a cause of action. Counsel advising a potential plaintiff may not be in a position to ascertain if the plaintiff's injuries meet the threshold.

In Peixeiro, the issue was whether the discoverability rule applied to the limitation period under s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 in respect to when a plaintiff's damages constituted "œpermanent serious impairment" within the meaning of s.266(1) of the Insurance Act, R.S.O. 1990, c.I.8. Section 206(1) provides a limitation period of two years from the time "œwhen the damages were sustained." The plaintiff did not learn the seriousness of his injuries until more than two years after the accident at which time he commenced his action. In affirming the decision of the Ontario Court of Appeal, the Supreme Court of Canada held that, as the action was commenced within two years of the time the plaintiff first learned he had a cause of action, it was not statute-barred. The discoverability rule applies to all cases in which the issue is the time when a cause of action arises for the purposes of determining the commencement of a limitation period.5

The evidentiary burden:

Where the plaintiff commences a claim beyond the limitation period and relies upon the discoverability rule there is an evidentiary burden on the plaintiff to prove that the material facts giving rise to the action were not within his knowledge prior to when the plaintiff is asserting that time began to accrue. For example, a motor vehicle accident occurs on March 29, 1994. A plaintiff who commences a claim for damages on March 29, 1998 and relies on the discoverability rule has the evidentiary burden to prove that the material facts that the plaintiff met the threshold was not known prior to March 29, 1996. It is a question of fact, depending on the circumstances of the case as a whole, as to when knowledge of the material fact or facts was acquired by the plaintiff.6

Damage Assessment:

Various cases have, since Peixeiro, looked at what triggers time to begin to run with respect to a plaintiff's damages as a consequence of the defendant's conduct. Some injuries are relatively easy to determine whether the plaintiff's injury may reasonably meet the threshold. Soft tissue injuries, however, are the classic example of the type of injury where time and additional information may be necessary to determine whether the plaintiff's injury may reasonably meet the threshold.

Justice Langdon in Ioannidis v. Hawkings an OMPP case outlined the discoverability rule as it applies to limitation issues and the threshold. He stated that under the no-fault scheme, time begins when damages are known to comprise "œpermanent serious impairment" within the meaning of s.266(1) of the Insurance Act. An action must be started within two years from the time the plaintiff first learned they had a cause of action. Justice Langdon also stated that the discoverability rule, with respect to threshold requirements, ought to provide a plaintiff with a degree of latitude to determine whether the threshold may reasonably be determined to be met.7

On the issue of what triggers time to begin running and the degree of latitude the court must afford, Justice Langdon stated at par. 39:

When one is seeking to apply the discoverability rule to the plaintiff in a case such as this, it behooves the court to grant a degree of latitude to a plaintiff before declaring that the limitation period has begun to run. For instance, the first medical report or letter from the family doctor suggesting that an injury may be permanent may not be a triggering event if it is reasonable to expect that the plaintiff might want a second or more expert opinion. The assessment of these injuries is a highly individual matter which requires great delicacy. One specialist may view a patient as an unreliable historian or a malingerer. That particular physician's assessment of the individual might well be contradicted by the assessment of another physician or of a judge or jury. It may be that further diagnostic test will bring to light some important physical symptom not earlier seen or, indeed, not visible on an earlier examination, such as in the case of Peixeiro.

Clearly according to Justice Langdon, the question is not whether the plaintiff believes that the plaintiff's injury meets the criteria. Instead, it is whether there is a sufficient body of evidence available to be placed before a judge that, in counsel's opinion, has a reasonable chance of persuading a judge, on the balance of probabilities, that the injury qualifies. When such a body of material has been accumulated, then and only then the limitation begins to run.8

Further one court has held that a plaintiff's complaints within the two year limitation period which are significant and progressive, does not mean that he and his solicitor knew or ought to have known that the plaintiff would meet the threshold test set out in the Insurance Act.9 The fact that there is a "œpotential" cause of action will not in and of itself cause the running of time to begin. The facts or apparent facts that give rise to the reality will be the subject of scrutiny by the courts.10

In a Bill 164 motor vehicle action one court relied upon the fact that a doctor had used the word "œchronic" for the first time to describe the medical condition of a plaintiff as what triggers the limitation period to begin to run.11 It is still unclear from the case law whether the receipt of medical records rather than a supportive medical expert's report will start the clock running.12 The courts have recognized that in some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In those latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period.13

As well, where a plaintiff is examined by a medical doctor within two years of a motor vehicle accident and given information about the extent of his injuries which prompts him to instruct his solicitor to issue a claim, but the solicitor fails to do so, the discoverability rule will not apply to extend the limitation date.14

The application of the discoverability rule to extend the limitation period became law on the decision of the Court of Appeal on September 5, 1995. Ontario courts have held that Peixeiro can be applied retroactively to claims that have been commenced or to a date of an order dismissing an action for not meeting the threshold.15

Subjective/Objective Test:

The discoverability rule with respect to threshold cases is not a purely subjective test. The limitation period does not run from the point when an individual plaintiff concludes that he has met the threshold. The question is at what point in time did the plaintiff know or ought to know that the damage that he or she sustained may reasonably meet the applicable threshold test pursuant to the Insurance Act.16

In Guerriero v. Hawthorne the defendants brought a motion on June 4, 1999 to strike the plaintiff's claim as they alleged that the limitation period expired. The motor vehicle accident occurred on February 9, 1994. The plaintiff gave evidence at discoveries that he knew he had sustained a serious impairment of an important physical function within a few weeks of the accident. The defendants asserted that medical documentation existed by November 1994 to make that determination. The action was commenced on October 31, 1997. The defence counsel's position was that the plaintiff's case did not at any point in time in fact met the threshold.17

Justice Wilson relying upon Justice Langdon's consideration of Peixeiro in Ioannidis and concluded that the court did not find the subjective or objective test to be useful for analysis. The seriousness must be evaluated in light of the fact and circumstances of each particular injured individual. Justice Wilson scrutinized the facts of the case to look at what evidence was available to the plaintiff and his counsel post-accident and concluded at par. 25 that it was not clear that at a given point in time prior to October 31, 1995 that the plaintiff had a sufficient body of evidence available to be placed before a judge that had a reasonable chance of meeting the threshold. As such the court ordered that the issue ought to be determined at trial.

Liability Issues:

Although Peixeiro dealt with the discoverability of damages, it has been equally applied to the concept of identifying tortfeasors and the addition of the newly identified tortfeasor to an existing action. The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability. Since the discoverability rule is a rule of general application, it does not only apply to cases where there has been a delayed manifestation of the cause of a plaintiff's injuries or where the negligence of a defendant had not become manifest until the occurrence of a particular event.18

The Court of Appeal in Grenier v. Canadian General Insurance Co. applied Peixeiro with respect to the issue of identifying a tortfeasor. The plaintiffs in Grenier reasonably believed that the tortfeasor was uninsured and recovered from their own insurer. The plaintiffs discovered after the relevant limitation period that the tortfeasor was in fact insured at time of accident. The plaintiffs then commenced a lawsuit against the insurance company of the tortfeasor. The court held that the cause of action arose only when the plaintiffs uncovered the existence of a valid insurance policy issued to the tortfeasor. The triggered event did not come into existence until the plaintiffs had or reasonably should have had knowledge not only that he or she had a judgment but also that it is a judgment against an insured person. It also held that the discoverability rule applied to s. 258(2) of the Insurance Act and that the action against the insurer was not statute-bared.19

Justice Wilkins in Wong V. Sherman20 rendered a judgment on April 8, 1998 involving multiple litigants involved in a catastrophic motor vehicle accident on October 31, 1990 where newly identified tortfeasors were added to a case. The Justice reasoned that Peixeiro applies to the discoverability of injuries and equally applies to the concept of identifying the tortfeasors. Justice Wilkins stated at par. 28:

In my view, there is no rational distinction between a person not being aware that there injury might meet the provisions for the exception to the bar against action in the Insurance Act and a person who has been injured in an accident and who, by reason of the unusual circumstances of the aftermath of the accident, has not identified some potential tortfeasor. The courts have overcome the fundamental unfairness of these circumstances through application of what is now generally referred to as the discoverability rule and the requirement of reasonable diligence by the party seeking the relief.

The court held that it would be highly inappropriate for a plaintiff to be deprived of a cause of action under circumstances where the plaintiff and/or the plaintiff's solicitor have been deprived of the identity of the tortfeasor.

Even where the date of discovery of the tortfeasor is within the limitation period prescribed, the discoverability rule will apply. In Pooni v. Aziz21 the plaintiff moved on October 8, 1999 to add two repairers/corporate defendants after the limitation date expired on June 18, 1998. The plaintiff contended that the cause of action against the proposed defendants did not begin to run until the existence and identity of repairers was first disclosed at the discoveries in April 1998. It was the proposed defendants position that their existence was known to the plaintiff at the examination for discovery in April 1998. The proposed defendants argued that the discoverability rule should not operate to relieve the plaintiff from the limitation period when the date of discoverability is within the original two year period. Master MacLeod at par. 9 relying upon Peixeiro and Central Trust Company held that:

As I read the cases, however, the discoverability rule is not an exercise of discretion on the part of the court to overrule a statutory limitation period. Rather, the proper construction to put on statutory limitation periods is that they begin to run from the date of discoverability. If that is correct, the statute provides two years from the date of discoverability and it is not open to the court to lengthen it or shorten it.

Master MacLeod concluded that discoverability is a question of fact and that it was probable and arguable that the discoverability rule has the effect of extending the limitation period to April 2000 as against the proposed defendants. As such the Master granted leave to amend the statement of claim as the proposed amendments disclosed a cause of action at this stage although the Master recognized that there may be facts raised in the defence that put this conclusion into question.

Due Diligence:

The plaintiff must exercise due diligence and is not entitled to wait until he or she has an overwhelming case.22 The Court of Appeal in Peixeiro commented that: "œIn these situations, most injured people receive advise from doctors, providing a means for ascertaining form a third party when serious and permanent injury is identifiedј.When medical advise is not sought, despite apparent symptoms, the court may conclude that reasonable diligence was not exercised."23 A court can decline to apply the discoverability rule where everything was available to enable the plaintiff and its advisers exercising due diligence to advance a cause of action. Most recently, the Supreme Court of Canada has reiterated that there is a burden on the plaintiff to act reasonably.24

In one decision Sheikh v. Lorusso25 Justice Chapnik granted summary judgment under Rule 20 and dismissed a plaintiff's cause of action on the issue of due diligence. The motor vehicle accident occurred on October 26, 1990. The plaintiff had commenced legal proceedings in a timely fashion against one defendant, the insurance company, on February 11, 1993. The plaintiff failed to name the principal tortfeasor, the driver and owner of the other motor vehicle, in the lawsuit although they knew of these parties. The plaintiff had medical evidence as late as June 16, 1994 indicating that the injuries resulted in severe, prolonged and permanent disability. A further statement of claim was filed in December 1996 naming the principal tortfeasors. Justice Chapnik held that the plaintiff failed to commence proceedings as against the two named principal tortfeasor within two years of the date of the accident or within two years of the discoverability of the facts giving rise to the cause of action.26

The potential plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which negligence can be based. This includes acting with diligence in requesting and receiving both expert opinion and medical opinion, if required, so as not to delay the commencement of the limitation period.

Actions Against Municipalities And The Provincial Crown

Broad application:

In Ontario actions for non-repair of a highway or bridge and damages sustained as a result must be brought within three months of the time that the damages were sustained. No action shall be brought unless there is notice in writing of the injury claimed. In occupier's liability cases against the provincial Crown, failure to serve a notice of the action pursuant to section 7 of the Proceedings Against the Crown Act, R.S.O. 1990 within ten days after the claim arises is generally fatal to the action.

In Bourne v. Saunby the Court of Appeal took the position that a transportation committee order was a fact to which the discoverability rule applied. On May 30, 1990 the plaintiff was seriously injured in a motor vehicle accident. The accident took place on a road under the jurisdiction of the defendant township. The defendant county had jurisdiction over the road that intersected with the township's road. The plaintiff commenced an action alleging negligence and nuisance against the two municipalities approximately one year after the accident, beyond the three-month limitation period prescribed by s. 284(2) of the Municipal Act.

The Court of Appeal found at par. 23 that the motion judge erred in finding that the transportation committee order was at all times available for public review, inquiry and scrutiny and that the plaintiff solicitor requested a copy of the order in January 1991 but did not receive a copy from Transport Canada until late April or early May 1991.27

One subsequent court has gone on so far as to reason that Bourne stands for the proposition that discovery of the cause of action may have to await the delivery of an expert report in an action against the Provincial Crown claiming negligent design and maintenance of a highway.28

In Appleyard v. Ontario the Crown brought a motion pursuant to rule 21 for summary judgment dismissing the action as a nullity for the plaintiff's failure to comply with the notice period requirement of The Proceedings Against the Crown Act. The plaintiff an inmate at the Monteith Correctional Institute claimed to have slipped and fallen on water on a washroom floor in the institution on June 26, 1996 injuring his knee. Notice was provided some 56 days later. Justice Karam on January 13, 1999 rendered a judgment that the inmate did not have the same opportunities as an unincarcerated person to satisfy the notice requirements and that the delay was not unreasonable and there was no prejudice to the Crown. The court relied upon the discoverability rule stated in Peixeiro and concluded at par. 15 that "œthe limitation period for giving notice should not run until the time when this plaintiff was practically able to serve notice, or when a similarly situated, reasonably diligent plaintiff would have been able to give notice." 29

Restrictive application:

Nevertheless, it is now being argued by counsel in favor of a restrictive approach to the application of the discoverability rule that municipal slip and fall injuries are outside of the automobile insurance scheme and as such Peixeiro and the discoverability rule do not apply.30

An Ontario Divisional Court panel in Irene Fortier v. The Corporation of the City of Timmins heard September 29, 1999 overturned a motion court ruling by Justice Boissonneault that a plaintiff who slipped and fell on a municipal sidewalk could sue the city even though the notice period had expired. Justice Boissonneault on the motion before him stated that in par. 21 "œIt is not conceivable to me that the reasoning behind the discoverability rule dealing at least with personal injury actions, where it is not unusual for injuries to alter in severity, would apply to certain limitation periods and not to others."31 Justice Matlow for the Divisional Court found that Justice Boissonneault erred in his application of Peixeiro, which the Divisional Court held on its facts, dealt with the application of the discoverability rule to claims made pursuant to s. 266(1) of the Insurance Act. In cases involving those claims, it was held that the discoverability rule can postpone the running of a limitation period until the injured person knows or reasonably ought to know that his injury is serious enough to pass the threshold test. The court concluded that reasoning does not apply because the plaintiff's cause of action accrued on the very date of her accident when she realized she had suffered a fractured shoulder. Justice Matlow also found it of no legal consequence that the plaintiff later learned her injury was more serious than she first realized.32

Policy Concerns and Reform

The law in Ontario respecting limitation periods continues to be in poor shape. It is clearly unjust for a claim to be barred before the potential plaintiff knows, or reasonably could know, that their cause of action exists. The fundamental policy underlying the discoverability rule is the recognized unfairness in requiring a plaintiff to bring a cause of action before he or she could have reasonably discovered that he had a cause of action.

Over the last few decades, many legislatures have moved to modernize their limitation statutes. To this end, more attention has been given to ensuring that limitation statutes are framed in a manner that addresses more consistently the plaintiff's interests and not just those of the defendant's. Arbitrary limitation dates have been discouraged in favor of a more contextual view of the parties circumstances.33 Ontario however has lagged behind. While British Columbia, Manitoba, Nova Scotia and Newfoundland have codified the discoverability rule, the Ontario legislature have placed the burden to rectify Ontario's limitation period problems on the courts.34

Limitation periods are premised on three rationales, certainty, preservation of evidence and diligence. There should come a time when a defendant should consider itself free of the threat of legal action. A potential defendant should have a reasonable expectation that he or she will not be held accountable after a certain period of time. Once a limitation has run, a potential defendant should not have to be concerned about preservation of evidence related to a claim. Moreover, limitation periods are meant to encourage litigants to settle their disputes promptly, when the evidence is fresh. Limitation periods are also meant to ensure that a plaintiff acts with diligence and does not sleep on their rights. Limitation periods are a statutory incentive for a plaintiff to bring suit in a timely fashion.35

With the recent judicial trend of applying Peixero and the discoverability rule broadly in personal injury actions, alleged tortfeasors are now being faced with extended exposure to claims and potential plaintiffs are finding that prior litigation barriers are being dismantled. Obviously a balance has to be struck between the potential plaintiff whose action can be time barred before knowing he even has a cause of action and the alleged tortfeasor who due to faded memories, lost witnesses or lost documents can find themselves liable when best evidence not available due to the passage of time would have prevented such a result.36

Conclusion

There is an apparent increased liberality on the part of the Ontario courts in the application of principles that stall the running of time. Much of this liberality is probably due to the failure of our legislature to establish certainty in the field of Ontario limitation periods in personal injury actions or even to codify the existing judge-made discoverability rule. Such a codification would give further guidance to both the public and counsel.

The court's application of Peixeiro in the context of personal injury litigation is evolving. The body of jurisprudence in the area of motor vehicle actions and actions against municipalities and the provincial crown seem to suggest that only when it is factually clear that the plaintiff knew the extent of the damages or knew who the tortfeasor was prior to the limitation period expiring and chose not to act diligently the court will defer in applying the discoverability rule. Another clear trend is that counsel are now using Peixeiro where there is a potential solicitor's negligence claim against a former solicitor who failed to commence an action within the statutory limitation period.

The judge-made discoverability rule raises some serious problems for the Ontario personal injury bar. Where counsel fails to act diligently in commencing a claim based upon material facts known after the limitation period has already expired, counsel may be now exposing themselves to a solicitor's negligence claim. While the application of the discoverability rule is based upon principles of justice and fairness much uncertainty in our notion of finality derive from this rule and how the case law has applied it in personal injury actions in Ontario.


Steven Muller B.A.. (U. of Toronto) LL.B. (U. of Windsor) J.D. (U. of Detroit Mercy) is a trial lawyer with a specialized interest in representing plaintiff's in personal injury and disability insurance claims who practices at Share Lawyers in Toronto, Ontario.


1. See City of Kamloops v. Nielsen (1984, 10 D.L.R. (4tht)641 (SCC); Consumers Glass Co. Ltd. v. Foundation Co. of Canada Ltd. (1985), 51 O.R. (2d) 385 (C.A.); Central Trust Co. v. Rafuse et al (1986), 31 D.L.R. (4th) 481 (SCC); M.(K.) v. M.(H.) [1992] 3S.C.R. 6; Murphy v. Welsh (1993), 106 D.L.R. (4th) 404 (SCC).

2. Novak v. Bond 1999 CarswellBC 1027 (SCC) at par. 9 affirming (1998, 161 D.L.R. (4th) 577 (B.C.C.A.); reversing (1997), B.C.J. No. 1900 [hereinafter Novak].

3. This paper will not be reviewing areas of motor vehicle legislation where the discoverability rule could be applied; rather, it will be looking at where the Ontario court has applied Peixeiro and the reasoning of the court in its application.

4. Graeme Mew "Discoverability principle not a license to ignore time limits", The Lawyers Weekly, October 23, 1998.

5. Aguonie v. Galion Solid Waste Material Inc. 1998 CarswellOnt 417 (C.A.) at par. 24 [hereinafter Aguonie].

6. See Findlay v. Holmes 1998 CarswellOnt 2848 (C.A.) par. 31 a medical malpractice case.

7. See Ioannidis v. Hawkings (1998) CarswellOnt 1418 (Gen. Div.) at par. 24-28 [hereinafter Ioannidis].

8. Ibid.

9. Goessell v. Black 1998 CarswellOnt 1253 (Gen. Div.) at par. 17 [hereinafter Goessell].

10. Ibid. at par. 25-32 and Madere v. Cassin 1997 CarswellOnt 3087 (Gen. Div.) at par. 16 [hereinafter Madere].

11. See Bhamra v. Sweetnam 1998 CarswellOnt 905 (Gen. Div.) par. 11.

12. See Soper v. Southcott 1998 CarswellOnt 2906 (C.A.) affirming (1997), 30 O.R. (3d) 704 (Gen. Div.) [hereinafter Soper], a medical malpractice case, where the receipt of medical records, rather than a supportive medical expert's report, was held to have started the clock running. The Court of Appeal on a different set of facts came to the opposite conclusion in Urquhart v. Allen Estate 1999 CarswellOnt 2445 (C.A.). In that case, medical records, including a mammogram report, did not contain all facts necessary to base a claim in negligence. The plaintiff was in no position to recognize that she had a cause of action against a radiologist on the basis of a mammogram report and other medical records alone.

13. See Guerriero v. Hawthorne 1999 CarswellOnt 2284 (Sup. Ct.) [hereinafter Guerriero] referring to the court in Soper, supra note 12.

14. See Madere, supra note 10 at par. 20. This case deals with the Court of Appeal decision of Peixeiro.

15. See Salvador v. Maher 1998 CarswellOnt 3111 (Gen. Div.) and also Salvador v. Mather 1999 CarswellOnt 324 (Ont. Div.). It is not uncommon for defendants to raise that a solicitor was negligent in countering the discoverability rule raised by a solicitor representing the plaintiff.

16. Grenier v. Canadian General Insurance Co. 1999 CarswellOnt 789 (C.A.) at par. 16; affirming 1997, 32 O.R. (3d) 343 [hereinafter Grenier].

17. Guerriero, supra, note 13.

18. See Aguonie, supra, note 5 at par. 21.

19. Grenier, supra, note 16 at par. 19-22.

20. Wong v. Sherman 1998 CarswellOnt 1413 ( Gen. Div.).

21. Ponni v. Aziz 1999 CarswellOnt 3237 (Ont. Master).

22. Ioannidis, supra, note 7 at par. 39.

23. Peixeiro v. Haberman 1995 CarswellOnt 1127 (C.A.) at par. 16.

24. Novak, supra, note 2 at par. 9.

25. Sheikh v. Lorusso 1998 CarswellOnt 2095 (Gen. Div.).

26 Interestingly, the facts suggest that between commencing the claim in February 1993 and December 1996 new counsel were retained by the plaintiffs. More likely new counsel chose to use the discoverability principle to commence a claim beyond the limitation period then to commence a claim against the former solicitor for solicitor's negligence.

27. See Bourne v. Saunby 1998 CarswellOnt 1227 (C.A.) reversing (1996) 26 M.V.R. (3d 227 (Gen. Div.).

28. See Greenaway v. Ontario Minister of Transportation and Communication (1999) 44 O.R. (3d) 296 (Gen. Div.) at 300 Justice Sharpe does not specifically refer to Peixeiro but does base his finding on the discoverability principles.

29. See Appleyard v. Ontario 1999 CarswellOnt 2771 (Gen. Div.) the Court of Appeal on September 3, 1999 dismissed the appeal from the Crown and held that questions as to the meaning and effect of s. 7(3) should be determined at the trial not on a Rule 21 motion. Costs were also ordered in favor of Appleyard.

30. See Elizabeth Raymer, "City Notice-Period Defence Wins Out" The Lawyers Weekly, November 26, 1999.

31. See Fortier v. Timmins (City) 1998 CarswellOnt 2950.

32. Fortier v. Timmins (City) (Divisional Court) September 29, 1999 unreported.

33. Novak, supra, note 2 par. 9.

34. See Antonio F. Azevedo, The Discoverability Rule-Striking The Balance, Special Lectures 1998 The Law Society of Upper Canada, at p9-3.

35. See Patrick v. Dowhos 1998 CarswellOnt 5012 (Gen. Div.) at par. 23; Ioannidis, supra, note 7 at par. 31.

36. Grenier, supra, note16 at par. 24.