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Ontario Court of Appeal Refuses to Add Party after Expiry of Limitation Period
Published in the January 2007 issue of Transportation Notes - View Article
A recent decision of the Ontario Court of Appeal provides an example of circumstances in which plaintiffs who fail to add a party to proceedings before the expiry of a limitation period will not necessarily be able to avail themselves of the generous “discoverability” rule to cure their defect.
Mary Louise Pepper alleges that she suffered harm because her pharmacy mislabeled her medication. The pharmacy operated under the Zellers name and Pepper notified Zellers within days of the alleged problem. Zellers in turn notified the pharmacists who operated the pharmacy and these notified the dispensing pharmacist.
An action was commenced against Zellers, which informed the plaintiffs of the involvement of the operating pharmacists. Two years later a second action was commenced against the operating pharmacists. Counsel for the latter informed the plaintiffs’ lawyer of the identity of the dispensing pharmacist and of the fact that the pharmacy was actually owned by a numbered company.
At this point, counsel for the plaintiffs brought a motion for permission to add the numbered company and the dispensing pharmacist as defendants. The motion ultimately succeeded as against the company, but failed as against the individual pharmacist.
The legislation in question provided a limitation period of one year which commenced when the plaintiff “knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged”. This limitation period was available to professionals regulated by the legislation as well as to “health profession corporations”. One of the facts determined by the Court of Appeal is that while the dispensing pharmacist clearly could claim the protection of the limitation period, the numbered company in question could not. This followed from the fact that the incorporators had failed to obtain a certificate of authorization which is necessary to attain the status of “health profession corporation”.
Courts in Canada have often show themselves disposed to come to the aid of plaintiffs who fail to name the proper parties in litigation before the expiry of a limitation period. Various devices such as discoverability and special circumstances have been relied upon to allow the late addition of defendants. This case illustrates however that there is a threshold to be met. Because the plaintiffs’ counsel failed to introduce any evidence of steps taken to obtain the necessary information within the limitation period, the Court refused to intervene. It concluded that this failure prevented the plaintiffs from discharging their onus of showing that they had exercised due diligence in attempting to learn the identity of the dispensing pharmacist.
Pepper v. Zellers
Ont. C.A. Docket C44508