Anthony G. Lewis Plaintiff And: Western Regional integrated health authority First Defendant (discontinued) And: Brendan Lewis Second Defendant, 2022 NLSC 140

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Lewis v. Western Regional Integrated Health Authority , 2022 NLSC 140 Date : September 13, 2022 Docket : 201804G0171 Between: Anthony G. Lewis Plaintiff And: Western Regional integrated health authority First Defendant (discontinued) And: Brendan Lewis Second Defendant Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: April 28, 2022

Summary: The Second Defendant applied to have the claim of the Plaintiff dismissed pursuant to Rule 17A on a number of grounds including a Limitations Act argument. In respect of the Limitations Act argument, the Court decided it was appropriate to deal with it by the

summary trial process provided for in Rule 17A. The Court found the Limitations Act argument was a genuine issue for trial but that the record on the application was sufficient to allow the Court to make the necessary factual findings in order to decide the issue. The Court also determined that it would not be unjust to decide the Limitations Act issue by the

summary trial process. The Court found that the claims

of the Plaintiff were subject to a two year limitation period and that he had not commenced his action until the limitation period hadexpired. As a result, the application of the Second Defendant was granted and the claims of the Plaintiff against the Second Defendantwere dismissed. Appearances: Anthony G. Lewis Appearing on his own behalf Annette M. Conway and Travis D. Payne Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317,55 A.C.W.S. (3d) 477 (Nfld. S.C. (T.D.)); Dalley v. Northern Arm (Town), 2016 NLTD(G) 68; Brook Construction

(2007) Inc. v. NorthAtlantic Cement and Construction Ltd., 2020 NLCA 42; Hryniak v. Mauldin, 2014 SCC 7; Fitzpatrick v. Hefferman, 2019 NLCA 77;Butler v. Maritime Life Assurance Co., 2003 NLSCTD 64; Landells v. Kean’s Pump Shop Limited, 2021 NLSC 173; WEH EnterprisesLtd. v. Squires, 2009 NLTD 161; Bridge Shipping and Transportation Co. Ltd. v. Avis, 2018 NLSC 11; and Morgan v. Rogers, 2011NLCA 27 STATUTES CONSIDERED: Limitations Act, S.N.L. 1995 c. L-16.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] The claim of the Plaintiff, Anthony G. Lewis, arises as a result of two visits he made to the Second Defendant, Brendan Lewis,a medical doctor. The visits occurred on January 28, 2016 and July 5, 2016 at the orthopedic clinic of the Second Defendant located atWestern Memorial Regional Hospital.

The visits were in relation to a work-related injury and based on those visits the Second Defendantsubmitted reports to the Workplace Health, Safety and Compensation Commission. [2] On August 30, 2018, the Plaintiff commenced this court action by Originating Application against both the Second Defendantand the First Defendant, the Western Regional Integrated Health Authority. The Originating Application improperly had several lettersand documents attached to it.

I ordered that the Originating Application be converted to a Statement of Claim and that the Plaintiffinclude in the Statement of Claim more particulars of his claim but without including or attaching documents in the nature of evidence.An Amended Statement of Claim dated September 30, 2018 was issued by the Court on November 5, 2018.

The Plaintiff subsequentlydiscontinued his claim against the First Defendant. [3] While the Statement of Claim did not specifically plead particular torts, the general nature of the claim of the Plaintiff againstthe Second Defendant is that the Second Defendant (or his employees) breached the Plaintiff’s rights as a patient, including his right toconfidentiality and privacy, that the Second Defendant breached the doctor and patient relationship and that the Second Defendantintentionally caused the Plaintiff emotional distress. [4] The Second Defendant filed a Defence on October 19, 2018 in which, among other things, he denied the allegations of thePlaintiff.

He further denied that he had in any manner breached the rights of the Plaintiff as a patient, including the right toconfidentiality and privacy or that he breached the doctor and patient relationship. The Second Defendant went on to deny that he at anytime intended to get the Plaintiff to raise his voice which was the specific allegation made by the Plaintiff to support his claim that theSecond Defendant had intentionally caused him emotional distress.

The Second Defendant also advanced several defences in theDefence, including that the causes of action as alleged were barred by the Limitations Act, S.N.L. 1995 c. L-16.1. [5] The Second Defendant on April 13, 2021 commenced an application seeking to have the claim of the Plaintiff dismissedpursuant to Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D or in the alternative that the Statement of

Claim be struck for failing to disclose a reasonable cause of action under Rule 14.24 of the Rules of the Supreme Court, 1986. One of thebases on which the Second Defendant sought to have the claim against him dismissed pursuant to Rule 17A was that the claims werebarred by the Limitations Act.

It was agreed by the parties with the approval of the Court that rather than the application proceeding in itsentirety at one hearing, the Limitations Act issue would first be argued and the remainder of the application would be heard at a later datedepending on the decision of the Court on the Limitations Act issue. rule 17a [6] Rule 17A.01(1) of the Rules of the Supreme Court, 1986 provides as follows: 17A.01.

(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list,apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or partof the claim in the statement of claim, as the case may be. [7] As the responding party, the Plaintiff must comply with Rule 17A.02(2) which states: 17A.02(2) In response to affidavit material or other evidence supporting any application for

summary trial, a responding party may notrest on the mere allegations or denials in the party's pleadings, but shall set out, in affidavit material or otherwise, specific facts showingthat there is a genuine issue for trial. Affidavits and other material to be relied on by the responding party shall be filed and served on theother party at least five days before the hearing. [8] In terms of how the Court disposes of an application under Rule 17A, Rule 17A.03 states as follows: 17.A.03

(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grantsummary judgment accordingly.

(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grantjudgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application.

(3) Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trialof that issue or grant judgment with a reference to determine the amount.

(4) Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grantjudgment accordingly.

(5) Where a party claims an accounting and the responding party fails to satisfy the Court that there is a preliminary issue to betried, the Court may grant judgment on the claim with a reference to take accounts. [9] In Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 55 A.C.W.S.(3d) 477 (Nfld.

S.C. (T.D.)), Green, J. (as he then was) outlined a set of principles as a guideline to applications under Rule 17A in thisjurisdiction based on his analysis of judicial comments in certain cases from Ontario and British Columbia dealing with Rules in thosejurisdictions with wording similar to the wording of Rule 17A. These principles were set forth at paragraph 76: 76 From an analysis of the comments in the Ontario and British Columbia cases referred to above, in the context of the language ofNewfoundland Rule 17A, I offer the following set of principles as a guideline to the approach to the application of the

summary trial rulein this jurisdiction: 1. The object of Rule 17A is to promote the general objective of the Rules of Court of providing an expeditious and inexpensivedetermination of proceedings on their merits, by screening out claims that cannot survive the "good hard look". 2. The burden is on the applying party to satisfy the court that: (

a) there is no "genuine issue for trial" or, (

b) if there is a genuine issue, the record before the court enables the court to find the facts necessary to decide that issue and it wouldnot be unjust to the responding party to do so. 3. To bring himself or herself within the Rule the applying party must: (

a) in a case where he or she has the ultimate burden of proof on the merits, put forward an evidentiary basis for the claim which, ifconsidered alone, would prove each element of the cause of action; or (

b) in a case where the other party has the burden of proof on the merits, put forward an evidentiary base establishing a defence to theclaim as defined in the pleadings or tending to show that the other party's claim has no substance to it.

4. In either of the foregoing cases, the applying party's case must consist of an organized set of facts set out in a coherent way, either from primary sources or the best sources available, including admissions on interrogatories and discoveries, that constitute proof of a proper foundation of the claim or defence, as the case may be. 5.

In assessing whether the applying party's evidentiary basis is present, the court must take into consideration not only the affidavit and other documentary evidence presented on behalf of the applying party but also the results of any cross-examination, if allowed, of the applying party's deponents. 6. The opportunity to avail of cross-examination is in the discretion of the court so as to ensure promotion of the philosophy of the rule of providing expeditious and inexpensive paper trials. Cross-examination would likely be appropriate where: (

a) there is some disputed issue disclosed on conflicting affidavits, the resolution of which is necessary to the ultimate outcome of the case; (

b) even though the applicant for cross-examination has not filed a conflicting affidavit, the purpose of cross-examination is to address information that is not within the knowledge of the cross-examiner's own deponents, provided the court can be convinced from other sources (eg. the pleadings), that there is a substantive point of difference between the parties; (

c) there is other good reason to test the veracity of a statement that is directly related to a material fact in dispute. Unlike cross-examination on a full trial, cross-examination on affidavits would not generally be permissible for the purpose of attacking credibility generally. If that is necessary, then that is probably a good indication that the case should go to trial. 7.

If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or her position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot be accomplished by showing an issue raised by the pleadings. The argument on a Rule 17A application takes place at a level below the pleadings within the forums of evidence and legal argument.

The responding party must therefore "put his best foot forward" since failure to do so may lead the court to conclude that there is in fact no genuine issue for trial. The responding party should therefore set out in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can see that there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determination on the merits. 8.

Where the issue is one of fact, the responding party may demonstrate the existence of a genuine issue by filing his or her own affidavit or other material or, where cross-examination of the applying party's deponents is allowed, it may be demonstrated from answers given on such cross-examination or, where the responding party's own deponents are cross-examined, from favourable answers thus illicited.

Where the issue is a legal one, the responding party would be expected to demonstrate the existence of the legal issue, by the citation of appropriate authority, in the memorandum of law which is required to be filed pursuant to Rule 17A.02(6). 9. There will be a "genuine issue for trial" if the issue in question is not spurious and the issue relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties.

Obviously, there will not be a genuine issue for trial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. 10. The court must approach the test for application of Rules 17A on an issue by issue basis. Just because it is determined that a particular issue must go to trial, it does not follow that the court cannot adjudicate summarily on other issues if the pre-conditions for the application of Rule 17A have been made out in respect of those other issues. 11. In presenting an evidentiary base in support of or in opposition to an application for

summary trial, both parties have an obligation not to "scoop-shovel", to use the phrase employed in the Inspiration Management case, disjointed affidavits and other material on the chambers judge, but must set out the evidence in a concise and organized way that demonstrates the issues in dispute and why they can or cannot be dealt with by way of

summary trial. Failure to do so may result (if the culprit is the applying party) in the Court concluding as a threshold matter, that the case is not appropriate for determination by way of

summary trial; or (if the culprit is the responding party), in the court concluding that no genuine issue for trial has been demonstrated. 12. If there is no genuine issue for trial, the court must give judgment in favour of the applying party. If the only genuine issue is a question of law the court may proceed to decide the issue and give judgment accordingly.

13. Where there is a genuine issue for trial, the court must then go on to consider whether, on the evidence as presented, it is nevertheless possible and appropriate to decide the issues on the application on the basis of the existing record. At this point, the inquiry changes focus. The responding party had an obligation to put his or her best foot forward to demonstrate that there was a genuine issue for trial.

Having done so, the focus shifts, to some extent, to a determination of the court's "comfort level" with the state of the record as being able to justify a determination on the genuine issues that have been identified. The court must be satisfied by the applying party that the evidentiary record is "sufficient for adjudication", to borrow the phrase used in the Inspiration Management case. In making that determination the court must keep in mind that it is entitled, on a common sense basis, to draw inferences from the evidence and from failure of a party to comply with Rule 17A.02(4) and (5).

It does not mean that the chambers judge must nevertheless be satisfied that if the proceeding went through the full trial process the result would inevitably be the same as would be given on

summary trial. It simply means that so long as the chambers judge is satisfied that there is a sufficient evidentiary backdrop against which findings of fact can be made and in which there are no material unanswered questions, he or she should be able to adjudicate on the merits. 14. A closed list of factors which the chambers judge must consider in determining this issue cannot be given. The list would obviously include: (

a) whether there are conflicts in the evidence which can be resolved by reference to other known facts and whether those facts are themselves proven on the record; (

b) whether there are issues of credibility which can be resolved without the necessity of observing the demeanor of the witnesses or of having more elaborate explanation of facts to which they have deposed. (

c) whether material evidence from a "principal player" is absent [this is particularly important where the absent evidence is from the applying party's side. It may be less significant where the evidence is absent from the responding party's case, in light of his general obligation to "put his best foot forward"]. In the end, this determination is a matter of discretion for the trial judge to determine whether he or she is confident that the court has the factual sub stratum necessary to make an informed decision on the merits. 15.

The requirement that the judge must also be satisfied that it is not "unjust" to decide the issues on the application reinforces the notion that the chambers judge should be satisfied that the court has a sufficient handle on the facts to make an informed decision. Thus, if it is clear that there is other material evidence available which might materially affect the result and the chambers judge concludes that he or she would not be deciding the case against the true factual background, he or she might well conclude that it would be unjust to deal with the matter by way of

summary trial. While a party has an obligation to put his or her best foot forward, there might well be a valid explanation for the absence of such other evidence, for example, if the information is in the hands of the other party. In addition, other factors that would have to be considered by the court to determine the "justice" of proceeding would be: (

a) the amount involved; (

b) the complexity of the matter; (

c) its urgency; (

d) any prejudice likely to arise by reason of delay; (

e) the cost of taking the case forward to a conventional trial in relation to the amount involved; (

f) the course of the proceedings to date. 16. If the court is satisfied on the foregoing matters, then it should proceed to adjudicate on the merits of the claim and, in so doing, apply the same standards of adjudication and burden of proof as would apply on a full trial. 17.

Although one would expect that an applying party would not apply unless he or she clearly felt that there was considerable strength in the case, it is nevertheless possible that, if a court determines that it is appropriate to try the case summarily, the responding party could be successful in convincing the court that, on the record, judgment should be entered in his or her favour. Having set the machinery of Rule 17A in motion, the applying party will not then be able to complain if judgment goes against him or her. [ 10 ] In Dalley v.

Northern Arm (Town) , 2016 NLTD(G) 68, Butler, J. (as she then was) attempted to clarify the principles set forth by Green, J. in Marco relating to the procedure to be followed on a

summary trial application. At paragraph 47 she said: 47 Confusion also exists on the onus upon each party at the

summary trial itself. Marco principle 2 establishes that the Applicant for a

summary trial must satisfy the Court on the 'genuine issue for trial' component. However, principle 13 references the responding party's obligation "to put his or her best foot forward to demonstrate that there was a genuine issue for trial." I shall therefore take this opportunity to confirm the burden upon each party at a

summary trial:

• The Plaintiffs retain the burden of proof of their assertions at any trial and a

summary trial is no different in this respect; • The Applicant (in this instance the Defendant) must establish that there is no genuine issue for trial.

Marco principle 9 explains that there will be a genuine issue if the question is not spurious and the issue relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties. • If there is no genuine issue for trial, the Court must grant judgment in favour of the Defendant ( Marco principle 12). • If there is a genuine issue for trial, the Applicant, (in this instance the Defendant) continues to have the onus of establishing that: a)The judge is able, on the whole of the evidence, on the application, to find the facts necessary to decide the questions; and b)It would be just to decide the issues on the application. ( Marco principles 13-15 at Rule 17A.03(2)) [ 11 ] The Court of Appeal in the case of Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd. , 2020 NLCA 42 pointed out that there is a threshold question that may need to be dealt with in certain cases before addressing the question of whether there is a genuine issue for trial and/or whether the matter can, even if there is a genuine issue, nevertheless be dealt with by

summary trial. The Court discussed the nature of this threshold question and that it involved consideration of two sub-questions at paragraphs 35 – 41: [35] This threshold consideration, when raised by a party or the judge, is whether in all the circumstances it is “appropriate” to hear the

summary trial application ( Marco No. 1 ). In Dalley v. Northern Arm (Town) , 2016 NLTD(G) 68, 381 Nfld. & P.E.I.R. 286 , Butler J., parsing the analysis in Marco No. 2 at para. 76, # 3 and 7, described the threshold question as consisting of two sub-questions: (

i) whether on the face of the application the applicant has brought himself or herself within the formal requirements of the rule, and (ii) whether, even if he or she has done so, it would be appropriate to deal with the issues presented by way of

summary trial as opposed to a conventional trial or some other means of disposition. [36] The first sub-question essentially involves a determination whether the applicant has complied with the formal requirements of rule 17A and has put forward some evidentiary basis for the applicant’s position which, if unanswered, could establish all or part of the claim. Thus if it is obvious from the face of the

summary trial application that the application does not fit the formal requirements of the rule (as, for example, if the application is not accompanied by “supporting affidavit material or other evidence” (rule 17A.01(1)) which on its face could, without considering anything more, establish the applicant’s claim or defence) then it would be open to the judge to put a stop to the application immediately (although in appropriate circumstances, an adjournment to allow the application to be perfected could also be granted). [37] The second sub-question is whether there may be any other reason, evident at that preliminary stage, why it may be inappropriate to deal with the issues by way of

summary trial. In Young , this question was described as [27] … whether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by a

summary trial, bearing in mind the comments of the Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 about the salutary uses of such a procedure to ensure access to justice in appropriate cases. [38] Hryniak amounted to a reminder by the Supreme Court of Canada that the court should be alert to try to find a proportionate means of resolving disputes that could avoid lengthy, expensive and unnecessary conventional trials. The

summary trial is a means of achieving this in appropriate cases. Yet, Hryniak also recognized that there would be some circumstances where a proportionate response would not involve a

summary trial and that a

summary trial could be "used inappropriately", thereby requiring judges to "play a role in controlling such risks" (para. 32). [39] It is these potentially inappropriate cases that the threshold inquiry is designed to address. Absent from the cases that have recognized a role for threshold screening, is an attempt at definition of the scope of the inquiry and the approach that should be undertaken at this preliminary stage.

[40] Care should be taken not to elevate the threshold inquiry to the status of a stand-alone, separate mandatory requirement additional to the requirements set out in rule 17A. The threshold inquiry is in reality only designed as a screening device based, as noted in Marco No. 1 , on the notion of the inherent power of the court to control its own process so as to ensure its powers are employed properly, or as expressed in Hryniak , to ensure that "clearly unmeritorious motions for

summary judgment [are not] abused and used tactically to add time and expense" (para. 68). [41] The inquiry does not require a searching investigation in every case to ensure that the

summary trial process is appropriate to be invoked; rather it is to ensure that the process is not invoked in wholly inappropriate circumstances. This follows from the Court's endorsement in Hryniak of the more widespread use of

summary trial. There is in reality an acceptance of the use of a

summary trial in most cases, with the burden of persuasion resting on the opposing party to raise the issue and to convince the court that the

summary trial is an inappropriate process to invoke in all the circumstances. Of course, the applications judge of his or her own motion, may raise questions at the threshold stage relating to

summary trial appropriateness as well. [ 12 ] Therefore, the first step on a Rule 17A application involves a consideration of the threshold question, namely whether given all the circumstances it would be appropriate to decide the case on the basis of the

summary trial process. The second step, which is reached only if at the threshold stage it is decided that it would be appropriate to proceed by a

summary trial, involves an analysis of whether there is a genuine issue for trial. If there is not, the application should be granted.

If there is then the court may move on to determine or decide the genuine issue if it is able to find the facts necessary to decide the particular question of fact or law from the record before and if the court concludes it is not unjust to decide the question of fact or law on the application. [ 13 ] As for the first sub-question at the threshold stage, Butler, J. in Dalley examined how an applicant would meet it and at paragraph 20 said: 20 How does an applicant meet the first element? Principle 3 from Marco states: 3. To bring himself or herself within the Rule the applying party must: (

a) in a case where he or she has the ultimate burden of proof on the merits, put forward an evidentiary basis for the claim which, if considered alone, would prove each element of the cause of action; or (b) ... where the other party has the burden of proof on the merits, put forward an evidentiary base establishing a defence to the claim as defined in the pleadings or tending to show that the other party's claim has no substance to it. [ 14 ] In this case it is the Second Defendant who has made the

summary trial application. It is also important to remember that at this juncture we are only dealing with the Limitations Act defence and specifically that the claim of the Plaintiff was subject to a two year limitation period which had expired before the Plaintiff commenced his court action.

Therefore, the question at this stage is whether the Second Defendant has met his obligation of establishing that there is an evidentiary basis for this defence in the record before the Court on the application. [ 15 ] In this case, the record establishes, and it is undisputed by the Plaintiff, that his claim arises out of his two appointments with the Second Defendant which occurred on January 28, 2016 and July 5, 2016. This proceeding was not commenced until August 30, 2018.

Therefore, there is an evidentiary basis for the Limitations Act defence that the claims of the Plaintiff were subject to a two year limitation period which had expired before the Plaintiff commenced his action. [ 16 ] As for the second sub-question of the threshold analysis, the question to be asked is whether deciding the matter by

summary trial is procedurally inappropriate. As noted by the Court of Appeal in Brook Construction

(2007) Inc. , this inquiry is intended as a screening device to ensure that Rule 17A is not used for an improper purpose. It recognizes that there are cases where a court through its inherent power to control its own processes can decline to decide a case through the

summary trial process. As I read the comments of the Court of Appeal and consider the purpose of Rule 17A and the guidance of the Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 , the power of a court to screen out a case from the

summary trial process at this stage is one that should only be used in exceptional circumstances. [ 17 ] There is nothing in the record before the Court to indicate that this is one of the exceptional cases where it would not be appropriate to dispose of the Limitations Act issue by

summary trial as opposed to a conventional trial or some other means of disposition. There have been a number of cases from this jurisdiction where limitation issues have been decided by way of the

summary trial process (see Fitzpatrick v. Hefferman , 2019 NLCA 77 ; Butler v. Maritime Life Assurance Co. , 2003 NLSCTD 64 ; Landells v. Kean’s Pump Shop Limited , 2021 NLSC 173 ; WEH Enterprises Ltd. v. Squires , 2009 NLTD 161 ; and Bridge Shipping and Transportation Co. Ltd. v. Avis , 2018 NLSC 11 ). It is my determination that there is nothing unique or exceptional about this case to put it in the category of cases where it would not be appropriate to decide the Limitations Act issue by way of

summary trial. [ 18 ] I now move on to deal with the issue of whether there is a genuine issue for trial, once again keeping in mind that at this juncture we are only dealing with the Limitations Act issue. Stack, J. in Bridge Shipping dealt with this issue and said at paragraph 22: 22 There is a genuine issue for trial in this case. The dispute as to when the limitation period began to run is one grounded in the facts

and requires resolution by resort to the evidence. Nevertheless, as will be seen from my findings of fact and analysis that follow, I am satisfied that I am able "to find the facts necessary" to decide the necessary questions of fact or law on this application and it would not be "unjust" to decide the issue on the application. That is, the Defendants have met their onus and have established that this case is one appropriate for determination pursuant to Rule 17A. [ 19 ] I agree with Stack, J. and in this case I also find that the Limitations Act argument is a genuine issue for trial. Accordingly, I must move on to decide if the matter is suitable for determination by way of

summary trial. In doing so, I must first determine if I am able to find in the record filed on the application the facts necessary to decide the questions of fact or law which need to be decided in order to determine the validity of the Limitations Act argument. In this case I am able to make the necessary factual findings. As referenced earlier, there is no dispute that the claim of the Plaintiff relates to events that occurred on January 28, 2016 and July 5, 2016.

Further, there is no issue here that the Plaintiff became aware of or discovered the events on which the claim is based at some later time so as to postpone the commencement of the limitation period to that later time as provided for in the Limitations Act in certain situations. The record quite clearly demonstrates that the Plaintiff observed and was aware of the events underlying his claim at the time they occurred on the dates of the appointments. It was also clear from comments made by the Plaintiff on the hearing of this application that this was the case.

I will further address the issue of postponement of the running of a limitation period later in this decision. [ 20 ] Despite the fact I am able to find the facts necessary on the record to decide the questions of fact or law, the other consideration at this stage is whether it is nevertheless unjust to do so on this application. I see no basis to conclude it would be unjust to decide this matter by way of

summary trial. In fact, given the objectives of the Rules of the Supreme Court, 1986 , particularly Rule 17A , of promoting an expeditious and inexpensive determination of proceedings on their merits as outlined by Green, J. in Marco , I am of the view that it would be unjust to not decide the matter by way of

summary trial in a case such as this where the facts clearly allow the Court to make an informed decision. [ 21 ] Accordingly, I will now move on to examine the Limitations Act defence put forward by the Second Defendant.

The defence is that the claims of the Plaintiff are all subject to a two year limitation period and that limitation period had expired by the time the Plaintiff commenced his proceeding against the Second Defendant on August 30, 2018. [ 22 ] Based on my review of the Amended Statement of Claim, consideration of the evidence filed on this application and the submissions of the Plaintiff, the claims of the Plaintiff are all in the nature of tort claims.

As I assess the claims of the Plaintiff and in the light most favourable to him, I agree with the submissions of the Second Defendant that the potential causes of action are: a. negligence; b. breach of fiduciary duty; c. intentional infliction of mental suffering; and d. breach of privacy. [ 23 ] The first three of these potential causes of action are subject to a two year limitation period by virtue of

section 5 (

a) or (

b) of the Limitations Act . The fourth of these potential causes of action is also subject to a two year limitation period by virtue of

section 5 (

j) of the Limitations Act . [ 24 ] Given that there is no dispute that the events giving rise to the claims of the Plaintiff occurred at the latest on July 5, 2016 (the second appointment) and given that based on the record there is no issue of discoverability, the claims of the Plaintiff were statute barred by the Limitations Act when the Originating Application was filed and issued on August 30, 2018. [ 25 ] During the course of the hearing when discussing the impact of the Limitations Act and the argument of counsel for the Second Defendant that the Plaintiff’s claim was barred by the Limitations Act because it was subject to a two year limitation period, the Plaintiff made a comment that because of how he was feeling at the time he did not have the strength to do anything about what had happened.

This potentially brings into play sections 14 and 15 of the Limitations Act which I will briefly address. [ 26 ] Section 14(1) and (2) of the Limitations Act provides as follows: 14.

(1) Notwithstanding

section 13, in an action (

a) for personal injury; (

b) property damage; (

c) professional negligence; (

d) for relief from the consequences of a mistake; (

e) under the Fatal Accidents Act ; and (

f) for a non-fraudulent breach of trust, the limitation period fixed by this Act does not begin to run against a person until he or she knows or, considering all circumstances of the matter, ought to know that he or she has a cause of action.

(2) The burden of proving that the running of the limitation period has been postponed or suspended under this

section is on the person claiming the benefit of that postponement or suspension.

[ 27 ] In terms of section 14(1) and the phrase “. . . knows or, considering all circumstances of the matter, ought to know that he or she has a cause of action”, the Court of Appeal for this province in Morgan v. Rogers , 2011 NLCA 27 discussed the meaning of this principle commonly referred to as the discoverability principle and said at paragraph 23: 23 The case law demonstrates that the discoverability principle relates to discovery of the material facts which ground a cause of action.

Material facts essential to a cause of action are facts supporting a basis for the action, like negligence in this case, damage, and the existence of defendants. Review of other provincial legislation addressing discoverability in the context of limitations accords with the discoverability principle relating to a plaintiff's discovery of material facts grounding his or her cause of action. See for example Limitations Act , 2002, S.O. 2002 c. 24 , Sch. B, sec. 5 ; Limitations Act , R.S.B.C. 1996, c. 226, s. 6 ; and Limitations Act , S.S. 2004, c. L-16.1, s. 6 .

Knowledge of a "cause of action" within the meaning of

section 14 means knowledge of the material facts grounding the cause of action. [ 28 ] As I noted earlier, based on the record before me there is no doubt the Plaintiff was aware of the material facts underlying his claims at the time they occurred, namely during the appointments with the Second Defendant on January 28, 2016 and July 5, 2016. This is evident from the Plaintiff’s own letters and correspondence which form part of the record and comments he made at the hearing of the application.

It is also evident from an Affidavit of Margaret Lewis sworn on August 15, 2019 and an Affidavit of Nancy Lewis sworn on May 30, 2021. [ 29 ] Margaret Lewis picked the Plaintiff up from a bus stop in Corner Brook and took him to Western Memorial Regional Hospital for the January 28, 2016 appointment with the Second Defendant and also picked him up when the appointment was over. She indicated in her Affidavit that the Plaintiff made the remark that certain things during the appointment “didn’t feel right”. [ 30 ] Nancy Lewis accompanied the Plaintiff to his July 5, 2016 appointment.

Her Affidavit reveals that while on the way home from the appointment the Plaintiff spoke to her about certain things that had occurred during the appointment and which in part form the basis of his claim against the Second Defendant. [ 31 ] In

summary, the Plaintiff was aware of the material facts underlying his claim when they occurred and there is no basis for a finding of a later date of discoverability so as to postpone or suspend the running of the limitation period. [ 32 ] As for

section 15 of the Limitations Act , it provides: 15.

(1) Notwithstanding

section 13 and subsection 14(3), where, at the time the right to bring an action arises, a person is under a disability, the running of time with respect to a limitation period under this Act is postponed so long as that person is under a disability.

(2) Where the running of time against a person with respect to a cause of action has been postponed under subsection (1) and that person ceases to be under a disability, that action shall be started before the date of expiration of the limitation for that action commencing from the date the disability ceases.

(3) Where a person with a disability has a right to bring an action and that right accrued before the disability, the right to bring an action is suspended until that person ceases to be under the disability.

(4) An action may be brought under subsection (3) before the later of (

a) the date of the expiration of the limitation period for the action as it would have applied had the person not been under a disability; or (

b) one year after the disability has ceased.

(5) A person is under a disability while that person is (

a) less than 19 years of age; or (

b) incapable of the management of his or her affairs because of disease or impairment of his or her physical or mental condition; or (

c) for the purpose of an action for misconduct of a sexual nature not under subsection 8(2), incapable of commencing that action by reason of his or her mental or physical condition resulting from that sexual misconduct. [ 33 ] Therefore, if a person is under a disability at the time the right to bring an action arises, the running of time with respect to the limitation period is postponed as long as the person remains under a disability. The Court of Appeal also dealt with this provision in Morgan v. Rogers and said at paragraph 40 : 40 For Mrs. Rogers to postpone the running of time applicable to her cause of action under

section 15 , she must prove as a result of her mental or physical condition she was incapable of managing her affairs for the period in respect of which she seeks postponement. Insofar as the applications judge's decision may be construed as a finding of disability warranting the accrual of the limitation period from a date later than February 26, 2005, it is incumbent upon this Court to address the issue. [ 34 ] After reviewing a number of cases involving examples of disability being considered for the purpose of extending a limitation period, the Court said at paragraph 48:

48 In order to establish incapacity to manage one's affairs within the meaning of

section 15 of the Act , it would be necessary to prove significant impairment. It would be unwise to set the requisite standard for establishing disability for the purposes of section 15(5)(

b) in this case, for the issue was not fully argued by the parties due to the roundabout way it came before the Court. However, it is sufficient to say that the evidence of Mrs. Roger’ symptoms of pain, incoherence, etc. requiring bed rest and medication for several days does not approach the level of impairment which must be proved in order to establish disability under the Act . The evidence respecting Mrs. Rogers’ health condition post accident, which condition is not unlike that of many people injured in car accidents, does not demonstrate incapacity to manage her own affairs for the purposes of

section 15 of the Act . [ 35 ] While for the reasons stated in Morgan v. Rogers the Court of Appeal did not want to set the requisite standard for establishing disability for the purpose of section 15(5)(

b) in that case, it is evident that the requisite standard is quite high. [ 36 ] It is my view that the obligation would be on the person claiming the benefit of

section 15 to provide sufficient evidence to the Court to establish the disability. The Plaintiff put forward no evidence to support an argument under

section 15 despite the fact that he had an obligation in response to the application to “put his best foot forward” in the words of Green, J. in the seventh principle from Marco which I set forth earlier. [ 37 ] In addition, while the Plaintiff was no doubt having some medical issues at the time of his appointments with the Second Defendant, he was able to attend those appointments and interact with the Second Defendant and others working in his clinic.

I would note as well that for the first appointment he traveled by bus to Corner Brook and interacted with Margaret Lewis who picked him up and dropped him back to the bus stop. He also interacted with Nancy Lewis who accompanied him to Corner Brook for the second appointment. All of such activity would be inconsistent with a person incapable of managing their own affairs for the purpose of

section 15 of the Limitations Act . [ 38 ] A final point I would make is that during discussion on this point at the hearing the Plaintiff did not request an opportunity to submit further evidence to support a claim for disability for the purposes of

section 15 of the Limitations Act . In fact, he indicated to the Court that he had put all information he had before the Court and would not know where to get information to support a claim that he was incapable of managing his affairs so as to bring into play

section 15. disposition [ 39 ] This is an appropriate case to be decided on the basis of the

summary trial process provided for in Rule 17A. The Limitations Act argument is a genuine issue for trial; however, the record before me on the application is sufficient to make the required findings of fact such that the applicable law can be applied to them. Further, there is no basis for finding that it would be unjust to decide the Limitations Act argument by the

summary trial process. In fact, it is my view that the opposite is true. It would be unjust to force the Second Defendant to continue to defend the claim all the way to a trial.

It would also be unjust to allow the Plaintiff to continue to pursue what he believes to be a meritorious claim all the way to a trial where in my assessment he would have no chance of defeating the Limitations Act defence. [ 40 ] For the reasons stated earlier in this decision, the claims of the Plaintiff against the Second Defendant are subject to a two year limitation period and are barred by virtue of the fact that the Plaintiff did not commence his claim until after the limitation period had expired.

Accordingly, the application of the Second Defendant is granted and claims of the Plaintiff against the Second Defendant are dismissed. [ 41 ] On the issue of costs, the general rule is that costs are awarded to a successful party. I see no reason to depart from the general rule in this case. Therefore, the Second Defendant shall be entitled to party and party costs at Column 3 of the Scale of Costs. _____________________________ George L. Murphy Justice