In this recent case, the doctors successfully brought a motion to dismiss the claim against them based on the 15 year Ultimate Limitation Period in the Limitations Act 2002 S.O. 2002, c.24 (the “Act”).
In brief, the surgery was performed in 2004, and the claim was commenced in 2020, more than 15 years later. Despite all manner of attempt by the plaintiff to have the limitation clock stalled due to things like incapacity, or wilful concealment by the doctors (as allowed in section 15(4) of the Act), the lower court and the appellate court both concluded that the evidence did not support such arguments.
The appellate court also dismissed the claim of the son who commenced a claim for loss of care, guidance and companionship under the Family Law Act, R.S.O. 1990 c. F3. Even though the son was a minor during some portion of the loss, reaching the age of majority in 2008, the court did not allow that claim to proceed because Family Law Act claims can only attach themselves to a viable primary claims (ie: in this case his mother’s claim, which was not viable).
Taylor v David, 2021 ONSC 3264
https://www.canlii.org/en/on/onsc/doc/2021/2021onsc3264/2021onsc3264.html