Martin v. Perrie

Chouinard J.‑‑The proceedings leading to this appeal originated in the Supreme Court of Ontario with a motion pursuant to Rule 124, brought by consent of the parties, to determine the following question raised in the pleadings in the underlying action:

Is the action of the Plaintiff as against the Defendant J. Walter Martin, M.D. barred by the provisions of Section 43 of The Medical Act, R.S.O. 1960, Chapter 234 and amendments thereto?

The question was submitted on the basis of the following agreed statement of facts:

1. The Plaintiff, Isobel Margaret Perrie, resides in the City of Burlington, in the Regional Municipality of Halton, in the Province of Ontario.

2. The Defendant, J. Walter Martin, M.D., is a medical practitioner duly licensed to practice [sic] medicine in the Province of Ontario and carries on a practice in the specialty of general surgery in the City of Burlington.

On or about the 7th day of April, 1969, at the Joseph Brant Memorial Hospital, in the City of Burlington, in the Regional Municipality of Halton, in the Province of Ontario, the Defendant, J. Walter Martin, M.D., performed a colon resection and an anastomosis between the lower signoid colon and ascending colon, on the Plaintiff.

That after the post‑operative examination on or about the 15th day of May, 1969, the Defendant, J. Walter Martin, M.D., did not render to the Plaintiff any further medical services whatsoever.

That in or about the month of January 1979 the Plaintiff began to develop serious discomfort in the area of the surgery performed by the Defendant, J. Walter Martin, M.D., on or about the 7th day of April, 1969.

That on or about the 16th day of November, 1979, the Defendant, James W. Watson, M.D., removed a non‑absorbable suture from the area of the incision left by the surgery performed by the Defendant, J. Walter Martin, M.D., on or about the 7th day of April, 1969.

The Plaintiff alleges that the Defendant, J. Walter Martin, M.D., was negligent in performing the surgery on the Plaintiff on or about the 7th day of April, 1969, in that the Defendant, J. Walter Martin, M.D., failed to remove all of the sutures inserted in the Plaintiff's abdomen during the course of the surgery.

The Defendant, J. Walter Martin, M.D., has in his Statement of Defence, raised, inter alia, the provisions of section 43 of The Medical Act, R.S.O. 1960, Chapter 234, which section later became section 48 of The Medical Act, R.S.O. 1970, Chapter 268, and which section was repealed effective July 14, 1975, but which was in effect between the 7th day of April, 1969 and the 14th day of July, 1975, when it was replaced by section 17 of The Health Disciplines Act, 1974, S.O. 1974, Chapter 47.

3. Section 48 of The Medical Act, R.S.O. 1970, c. 268 (formerly s. 43 of The Medical Act, R.S.O. 1960, c. 234), was in the following terms:

48. No duly registered member of the College is liable to any action for negligence or malpractice, by reason of professional services requested or rendered, unless such action is commenced within one year from the date when in the matter complained of such professional services terminated.

4. Section 17 of The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, is in the following terms:

17. No duly registered member of a College is liable to any action arising out of negligence or malpractice in respect of professional services requested or rendered unless such action is commenced within one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which he alleges negligence or malpractice.

5. As was aptly put by Dubin J. who wrote the majority judgment of the Court of Appeal (1983), 42 O.R. (2d) 127, at p. 128:

This represented a marked departure from the previous legislative provision which governed actions against physicians for negligence or malpractice.

The predecessor provision was first enacted on April 23, 1887 (Ontario Medical Act, R.S.O. 1887, c. 148, s. 55), and from that time and until July 14, 1975 (Health Disciplines Act, 1974 (Ont.), c. 47, s. 17), an action against a physician for negligence or malpractice had to be commenced within one year from the date when in the matter complained of the professional services terminated. Although actions for negligence at large have been generally governed by the Limitations Act, R.S.O. 1980, c. 240, which provides for a six‑year period for the commencement of an action in negligence, the special provision of the Medical Act was enacted for the protection of the medical profession.

The clear language of the predecessor statute governing actions for malpractice or negligence permitted of no other interpretation than that the action had to be commenced within one year from the date when the physician's professional services had terminated.

In most cases the fact or facts upon which the allegation of negligence or malpractice is founded and injury discovered would become apparent within the year prescribed. However, there have been many cases where a patient would be completely unaware that there had been anything untoward about his treatment, and no evidence of injury until after the limitation period had expired and would thus be left without any remedy through no fault of his own.

6. However, the question remains whether the new section applies to the plaintiff's claim made admittedly less than one year after she knew the facts giving rise to it but more than ten years after the defendant's services to her terminated while at the relevant time the predecessor section was in force.

7. The trial judge (1982), 135 D.L.R. (3d) 187, decided the issue in favour of the respondent (plaintiff) and his judgment was confirmed by the majority of the Court of Appeal, Thorson J.A. dissenting.

8. In the appellant's submission the plaintiff's claim was barred by the provisions of s. 43 of The Medical Act, R.S.O. 1960, c. 234. The appellant's right to immunity from any claim of the plaintiff was a substantive, vested right prior to the date of the enactment of s. 17 of The Health Disciplines Act, 1974 and, therefore, s. 17 of The Health Disciplines Act, 1974 cannot be construed as retrospective.

The appellant relies on s. 14(1)(c) of The Interpretation Act, R.S.O. 1970, c. 225:

14.‑‑(1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except as in this Act otherwise provided,

...

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, regulation or thing so repealed or revoked;

In the respondent's submission, s. 17 of The Health Disciplines Act, 1974 "was enacted by the Provincial Legislature to protect members of the public at large who are medical patients from time to time against the inability of asserting their rights in the civil courts in circumstances of the absence of knowledge about their case caused by the logical impossibility of knowing (the absence of symptomology) or the intentional non‑disclosure of information by potential defendants."

The respondent relies on s. 10 of The Interpretation Act:

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

On behalf of the respondent, "It is submitted that section 17 of The Health Disciplines Act ... represents a statutory change in the law insofar [sic] as the limitation period as prescribed by the said Health Disciplines Act ... is referable to the date when the putative plaintiff knew or ought to have known the facts upon which he or she alleges negligence or malpractice and is not referable to the date that the professional services claimed of were terminated. It is submitted the statutory change in law must be interpreted in accordance with section 10 of The Interpretation Act ... and that the public interest inherent in the individual's ability to assert his civil rights must be the paramount consideration."

The respondent further submitted that the wording of s. 17 of The Health Disciplines Act, 1974 necessarily and distinctly implies retrospective operation.

On retrospectivity, Dickson J., as he then was, wrote in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 279:

First, retrospectivity. The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively.

At page 282, in the same judgment, he wrote with respect to vested rights:

Second, interference with vested rights. The rule is that a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, at p. 638. The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation. A prospective enactment may be bad if it affects vested rights and does not do so in unambiguous terms. This presumption, however, only applies where the legislation is in some way ambiguous and reasonably susceptible of two constructions.

The High Court of Australia in Maxwell v. Murphy (1957), 96 C.L.R. 261, considered the question of retrospectivity. Under s. 5 of the Compensation to Relatives Act, 1897‑1946 (N.S.W.), an action had to be commenced within twelve months of the death of the deceased. The Act was amended as from December 16, 1953 by replacing the words "twelve months" by the words "six years". On November 30, 1954, an action was commenced by the plaintiff in respect of the death of her husband which had occurred on March 19, 1951. It was held that the amendment did not operate to revive the plaintiff's right to maintain an action which had been barred from March 19, 1952.

At pages 277‑78, Williams J. said:

Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.

This passage was quoted with approval by the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553, at p. 562. In that case a Public Authorities Protection Ordinance was amended to extend the period of limitation after the plaintiffs' right of action had been barred. Section 30(1)(b) of the Malaysian Interpretation Act, 1967, is to the same effect as s. 14(1)(c) of The Interpretation Act, supra. The Privy Council held that an entitlement to plead a time‑bar, acquired by a defendant constituted an accrued right which was protected by s. 30(1)(b) of the Malaysian Interpretation Act, 1967 and that any legislation extending a limitation period (whether or not the legislation was to be classified as procedural) was not to be construed retrospectively so as to deprive a defendant of that defence.

After quoting the above passage of Williams J. in Maxwell v. Murphy, supra, Lord Brightman, who delivered the judgment of the Privy Council, went on to say at pp. 562‑63:

The Federal Court in the present case accepted the reasoning of Williams J., and concluded by saying:

"On the failure of the (plaintiffs) to commence action within the specified period the (defendants) had acquired an `accrued right' which was designed to give them immunity for acts done in the discharge of their public duties. That right was well preserved by the Interpretation Act 1967 .... It therefore seems to us that in the circumstances of this case, the time for the claim was not enlarged by (the Act of 1974). The Act is not retroactive in operation and has no application to a cause of action which was barred before the Act came into operation."

With that conclusion their Lordships entirely agree. They would wish to add only a few observations.

Whether a statute has a retrospective effect cannot in all cases safely be decided by classifying the statute as procedural or substantive....

Their Lordships consider that the proper approach to the construction of the Act of 1974 is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations....

In their Lordships' view, an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.

Further, on p. 563, Lord Brightman said:

The briefest consideration will expose the injustice of the contrary view. When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone. That is the whole purpose of the limitation defence.

Similar principles were applied by this Court in Upper Canada College v. Smith (F.J.) (1921), 61 S.C.R. 413, and likewise by the Ontario Court of Appeal in Kearley v. Wiley, [1931] 3 D.L.R. 68.

In Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, Duff C.J. wrote at p. 638:

A legislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" (Main v. Stark, (1890) 15 App. Cas. 384, at 388), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.

The majority of the Court of Appeal distinguished the earlier cases on the basis that in those cases the limitation period was merely extended or abridged, whereas in this case it is the starting point which has been changed. The majority reasons state at pp. 133‑34:

In the cases heretofore referred to, the amendment to the limitation period under consideration merely extended or limited the time to commence an action from the date at which the accident had occurred. The fact or facts upon which the actions were founded related to events which had already passed and were known or ought to have been known within the then prescribed limitation period....

In this case the plaintiff had no cause of action to assert within the repealed limitation period. The fact upon which this action is based was the discovery on November 16, 1979, that a non‑absorbable suture had not been removed during the surgical procedure which was conducted in 1969, and this action was commenced within one year from discovery of that fact. To permit this action to proceed therefore would, in my opinion, not give a retrospective effect to the new provision of the Health Disciplines Act. It is true that the action is founded upon malpractice or negligence which occurred in 1969, but a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.

With respect, I do not agree. That distinction alone is not sufficient in my view to set aside the effect of the predecessor section which had already operated. Under that section "No ... member of the College is liable ... unless such action is commenced within one year from the date when in the matter complained of such professional services terminated." By May 15, 1970 then the appellant was declared by law not liable to any action for negligence or malpractice, by reason of professional services rendered prior to May 15, 1969 or on that date.

I adopt the following passage at p. 138, in the reasons for judgment of Thorson J.A., dissenting in the Court of Appeal:

The services performed in this case are an altogether different matter. The right to bring an action in respect of them had become statute‑barred long before July 14, 1975, and the defendant in this case had every right to assume that he was "no longer at risk from a stale claim" in respect of them. The prescribed one‑year period since the services were fully performed having gone by, this defendant, in common with all other medical practitioners who performed services at a time when the old law was in effect, was thus fully entitled to assume that he could "part with his papers" and "discard any proofs" which might have been taken, and could otherwise "order his affairs on the basis that his potential liability has gone".

His accrued legal right to order his affairs on the above basis is, in my opinion, the single most telling argument against any construction of the new legislation which either ignores, or treats as a matter of no significance, the consequences of any actual such ordering of affairs by a medical practitioner in the position of this defendant.

It was further stated in the majority judgment of the Court of Appeal at p. 135:

I see nothing in the new provision which would limit the right of action only to those cases which have not yet been statute‑barred pursuant to the repealed section of the Medical Act at the time of the new enactment, which was the position taken by counsel for the appellants. If the legislative assembly intended such a limitation, the section, in my opinion, would have been so worded.

In my respectful view a complete answer to this proposition is to be found in the following passage at pp. 138‑39, in the reasons of Thorson J.A., which I adopt:

My brother Dubin in his reasons concludes that if the Legislature had intended to limit the right of action referred to in s. 17 of the new Act only to those actions which had not yet become statute‑barred at the time of the new enactment, the section would have been so worded. With great respect, I would put the matter the other way around and say that if the Legislature had intended to annul previous existing and accrued limitations defences and to revive to full life and being for an indefinite future time rights of action that had ceased to be capable of being asserted at all under the law as it was before 1975, the section would surely have been worded in such a way as to make manifest that intention.

Leave to appeal in this case was granted "on condition that the costs of the Respondent for this application and of the appeal shall be paid by the Applicant in any event of the cause".

For these reasons, I would allow the appeal, set aside the judgments of the Court of Appeal and of the Supreme Court, and declare that the action of the plaintiff as against the defendant, J. Walter Martin, M.D., is barred by the provisions of s. 43 of The Medical Act, R.S.O. 1960, c. 234, and amendments thereto. The appellant will pay the respondent's costs in this Court. The appellant is entitled to his costs in the Court of Appeal and in the Supreme Court of Ontario.