Appeal Court finds motion judge erred in denying the motion to add defendants to case - Morrison et al. v. Barzo D.C. et Al.; Edwards et al., Third Parties – 2018 ONCA 979 Morrison v. Barzo

May 27, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Morrison et al. v. Barzo D.C. et Al.; Edwards et al., Third Parties – 2018 ONCA 979 Morrison v. Barzo

Date of Decision: December 5, 2018
Heard Before: van Rensburg, D.M. Brown and B.W. Miller JJ.A.

On appeal form the judgment of Mullins J., 2017 ONSC 4919 dismissing the motion to add defendants

LIMITATIONS TO BRING CLAIM: plaintiff sues chiropractor for damages for injuries claimed in chiropractic treatment in June 2011; Defendant third partying two other health care providers who treated plaintiff in the days following the original injury; Plaintiff adds another party  and another health care provider in May 2016 after examinations for discovery reveals he had claims against these parties as well; original trial judge erred in the proposed claims were statute barred; motion judge failed to make correct findings of fact; Motion judge errs in determination that lack of due diligence is stand-alone ground for finding that claim is statue barred; Evidence on motion does not support the conclusion that the plaintiff should have discovered his claim against the defendants prior to discovery examination of the third parties

Background:

The plaintiff brought action against a chiropractor in June 2013 claiming that he’d suffered injuries as a result of his chiropractic treatment in June 2011. The Plaintiff claims that the chiropractor was negligent. The defendant then third partied two other health care providers who had treated the plaintiff in the days following his original injury. The third parties were the plaintiffs registered massage therapist and his family doctor. They were third partied in May 2014 and were examined for discovery in May – June 2015.

As a result of the evidence provided at discovery the plaintiff brought a motion to add the family doctor, the massage therapist and the other party, a nurse practitioner, as defendants as well. The motion judge dismissed the motion on the basis that the plaintiff’s claims were statute barred. The plaintiff appealed this decision.

Result: Held, the appeal is allowed

The appeal court determined that the motion judge applied the wrong test when dismissing the motion on the following basis:

1. The motion judge did not make findings of fact as to when the plaintiff knew of the material listed in The Limitations Act, 2002, S.O. 2002 in relation to the claims against the proposed defendants, nor as to when he ought reasonably to have know of the matters. This information should have been noted on the evidentiary record before concluding that the plaintiff’s claims against the defendants were made more than two years before the motion was brought.
2. The motion judge indicated that the plaintiff had failed due diligence in investigating the potential claims against the proposed defendants and had thus no done due diligence in investigating the claim. In this case the motion judge failed to differentiate the plaintiff’s claim against the defendants and those against the proposed defendants.  The basis of the claim against the proposed defendants was that after the injury had occurred but before the plaintiff received diagnosis and surgery the proposed defendants failed to take immediate action in treating the traumatic injury.

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