2008 BCSC 552 Lorette v. Thorson Health Centre

Before: The Honourable Madam Justice MacKenzie

Reasons for Judgment

Counsel for the Plaintiff:	M. Kazimirski
Counsel for the Defendants, Thorson Health Centre, 459729 B.C. Ltd., doing business as Thorson Health Centre, Dr. Normandie M.L. Chubra‑Smith and Dr. John Crosby:	K.J. Jakeman M.K. Kinch
Counsel for the Defendant, Lynda Gail Thorson:	M.M. Skorah
Date and Place of Trial/Hearing:	April 7, 8, 10 & 14, 2008
	Vancouver, B.C.

Introduction

[1] The Defendants apply under Rule 18A for the dismissal of this medical malpractice action on the basis that the claims were statute barred under the Limitation Act, R.S.B.C. 1996, c. 266 before the Plaintiff commenced this action on December 31, 2004. They also argue there is no evidence of breach of the standard of care, or of causation. They say there is no evidence the Plaintiff did not give informed consent to the treatment, so the claim in battery must fail.

[2] The Defendants submit the matter is suitable for disposition under Rule 18A of the Rules of Court.

[3] If the claims against the other Defendants fail, then they do so as against the Defendant, Lynda Thorson. In any event, there is no basis for a cause of action with respect to her.

[4] The Plaintiff did not pursue her claims of breach of fiduciary duty, conceding there was little or no evidence to support it. I agree and dismiss that claim against all the Defendants.

[5] These claims arise out of treatment the Plaintiff received at the Thorson Health Clinic (“THC”), a pain clinic, for chronic pain that she suffered after a motor vehicle accident in August, 2000 in Nova Scotia.

[6] Although the Plaintiff has prepared an extensive Statement of Claim, her complaints can be summarized as follows:

(a) She alleges that the injections provided by one or both of Drs. Crosby and Chubra‑Smith were performed in a manner that breached the standard of care causing her injury. Dr. Crosby administered injections to the right sacroiliac joint area on each of January 17, January 28 and February 4, 2002 (Amended Statement of Claim, para. 33). Dr. Chubra‑Smith administered nerve block injections, including “an epidural-like injection in the area of the lower right sacroiliac joint, an occipital nerve block, a brachial plexus block and cervical facet block” (Amended Statement of Claim, para. 43). In particular, the Plaintiff claims that one of the injections went directly into the epidural or intrathecal space or in the sacroiliac joint in a negligent way causing damage.

(b) The Plaintiff claims she did not know that one of the substances used in some of the injections was DepoMedrol, a steroid. She claims she was not given the appropriate information regarding this drug and as a result did not provide informed consent.

(c) The Plaintiff claims that these breaches caused her a variety of disabling physical ailments, including reflex sympathetic dystrophy (“RSD”) or complex regional pain syndrome (“CRPS”).

(d) She claims that she did not know she was receiving nerve blocks, and had an express agreement with THC that she would not receive nerve blocks.

(e) The Plaintiff claims that Dr. Chubra‑Smith failed to disclose her medical condition, multiple sclerosis, to the detriment of the Plaintiff.

(f) She claims, variously, coercion and other forms of duress in her relationship with THC.

[7] Counsel for the Plaintiff submits there are two main issues:

1. Whether there should be postponement of the time when the two year limitation period started to run; and

2. Whether it would be unjust to proceed under Rule 18A.

[8] The Defendants proceeded with their various alternate positions for dismissal of the Plaintiff’s claims, but I have concluded both that the Plaintiff’s claim is statute barred, and that the issue is appropriate for determination under Rule 18A. It is therefore not necessary to address the alternate positions.

Background

The Action

[9] The Writ of Summons was filed December 31, 2004.

[10] Dr. Crosby’s Appearance was filed November 17, 2005, and Dr. Chubra‑Smith’s was filed on November 21, 2005.

[11] An Amended Writ of Summons was filed November 29, 2005.

[12] The Thorson Health Centre’s Appearance was filed December 1, 2005.

[13] The Statement of Claim was filed January 30, 2006.

[14] The Statement of Defence on behalf of Drs. Crosby and Chubra‑Smith and THC was filed February 17, 2006.

[15] The Statement of Defence of Lynda Gail Thorson was filed March 23, 2006.

[16] The Plaintiff was examined for discovery on November 29, 30 and December 1, 2006 and January 22, 2008. The Plaintiff also underwent an independent medical examination within a few days of the discovery.

[17] The Plaintiff applied to amend her Statement of Claim, and this was granted. The Amended Statement of Claim was filed May 14, 2007.

[18] There was a trial scheduled for April 7, 2008. This date had been reserved since the fall of 2006.

[19] The 18A hearing proceeded on the first days set for trial, April 7 and 8, in accordance with the ruling of Groberman J. of March 25, 2008 when he adjourned the hearing in a considered ruling, one and a half hours into the hearing. Counsel for the Plaintiff was not prepared to proceed. He had volunteered to act for the Plaintiff on the 18A application.

[20] Groberman J. denied the Plaintiff’s application of March 28, 2008 to adjourn the conventional trial set for three weeks to commence on April 7.

[21] The Defendants gave notice to apply to set aside the Jury, but that application was not necessary.

[22] This is the fifth time the Defendants’ 18A application has been set for hearing. It was adjourned four times to allow the Plaintiff time to gather her evidence. At this hearing, her counsel ably argued the issue of whether the limitation period should be postponed.

[23] The conventional trial had to be adjourned in any event because, among other reasons, I could not immediately decide this Rule 18A application.

Facts

[24] With the exception of a few disputed facts, counsel for the Plaintiff agrees with the “Background Facts” in the Defendants’ written submissions. Those facts that are in dispute are not relevant to the issue of whether the limitation period was postponed.

[25] The Plaintiff claims the chart of treatment at para. 25 of the Defendants’ submissions omitted the treatments of January 24 and 31, 2002 that are reflected in the MSP billing records as trigger point injections. But the Defendants obtained an affidavit of Dr. Crosby regarding those two days. He explained there was no Medical Services Plan (“MSP”) billing code for intramuscular stimulation (“IMS”) of trigger points, so instead, he used the billing code for trigger point injections. However, IMS treatment does not use any injection of solutions. Therefore, those two treatments contained no steroid or any solution at all.

[26] Also, the March 15, 2002 treatment by Dr. Pavey was missing from the Defendants’ chart of treatment. Therefore, I assumed for the purpose of the 18A hearing that the Plaintiff did have steroid injection on March 15, and on February 15 which is marked as “unknown” on the chart. The Defendants submitted the latter was a billing error as there is no doctor’s record of it. Neither of those two matters affect the outcome of this application.

[27] Subject to the paragraph above and minor editing on my part the Defendants accurately set out the background to the limitation issues.

[28] The Plaintiff attended at THC in January, February and March 2002, for treatment relating to her complaints of chronic pain and headaches resulting from a motor vehicle accident in Nova Scotia in August 2000. Her car was rear-ended.

[29] After the accident, the Plaintiff spent approximately four months off work. She returned to her administrative position on a cruise ship in January 2001. While on the cruise ship, the Plaintiff sought on-board medical treatment, including trigger point injections at least twice using decadron (a steroid) and lidocaine. The treatment note indicates that she requested trigger point injections, which on two occasions were declined by the doctor. She was medically disembarked in April 2001. The Plaintiff confirmed that she attended with the ship’s physician for trigger point injections in the right trapezius muscle.

[30] The Plaintiff returned to Nova Scotia, working part-time at a bank and attending physiotherapy. She moved to the Lower Mainland in August 2001.

[31] Once in British Columbia, the Plaintiff sought treatment from a variety of medical professionals, including a massage therapist, a chiropractor, a work rehabilitation program (KARP), a general practitioner, a neurologist, an anaesthesiologist, and two orthopedic surgeons.

[32] Dr. Baker, an anaesthesiologist, treated the Plaintiff on December 17, 2001. He examined her for chronic neck pain and headaches. On that occasion, he discussed with her the administration of an occipital nerve block, and performed the procedure upon obtaining the Plaintiff’s consent, including her signature on a consent form. Dr. Baker also saw the Plaintiff on May 6, 2002. His discussion of occipital nerve blocks is set out in detail at para. 9 of his Affidavit. It is unnecessary to repeat it here.

Treatment at THC

[33] The Plaintiff first came to THC in January 2002. She wrote a letter to the doctors of THC in January 2002 before she started treatment. It describes her concerns and “unanswered questions” at the time. Importantly, she also describes her symptoms before she even started any treatment at the clinic. For example, she writes at p. 6:

The only treatments that have been a constant lately have been 1) massage and although it is temporary relief, it is something and it comforts me a little and Important>2) I have been to a chiropractor and he understood that I felt lop sided if you will, and he said that it appeared that I carried myself to one side and the right hip and right shoulder were higher than the left so he started adjusting the hip and SI joint and the pain in deep in the hip and groin to crouch or bend has become excruciatingly more painful with every treatment. As well he manipulated my neck any further but the headaches are getting worse by the day and until I know what is going on inside of my neck (a disk has never been ruled out), logic tells me it is best to wait until the catalyst for this neck pain and headache is revealed and under control.

[34] It is common ground the Plaintiff entered the THC with SI (sacroiliac) joint and other problems from her motor vehicle accident in August 2000.

[35] The Plaintiff was initially seen by Dr. Hrabar. She also saw Dr. Feldman, who was a physical medicine and rehabilitation specialist, and Dr. Crosby, an anaesthesiologist. A number of treatments were recommended for her, including exercise, education, anesthesia, counselling, and massage.

[36] With respect to the anaesthetic treatment, trigger point injections and nerve blocks were offered to the Plaintiff at THC. Trigger point injections and nerve blocks are meant to treat trigger points which are described below.

[37] Malalignment as a result of injury in the back “will lead to shortening of some muscles and over stretching of others as well as the potential to compress nerves as they leave the spinal canal. When muscles are overstretched or nerves compressed taut bands in muscles known as trigger points can form. Trigger points can be treated in many ways including manual therapy techniques, stretch and spray, dry needling and injections of saline, local anesthetics and/or steroids”: Report of Dr. Kliffer, January 29, 2007 at p. 3.

[38] Dr. Kliffer explained that trigger points can be treated by injection:

Trigger point injections (TPI) are a long accepted modality for treatment of a myofascial pain syndrome. A needle is inserted into a trigger point while looking for an involuntary muscle twitch. This can be done with a dry needle or with a solution of saline, local anesthetic, and/or steroid such as depomedrol. The advantage of using a local anesthetic with or without steroid is that there is less discomfort for the 24-48 hours following a treatment: Report of Dr. Kliffer, January 29, 2007 at p. 4.

[39] In addition to trigger point injections, Dr. Crosby offered the Plaintiff acupuncture and IMS (intramuscular stimulation using acupuncture needles). Acupuncture needles, which are solid, do not inject substances, and are considerably thinner than conventional needles used for injections.

[40] In summary the objective evidence discloses, and I find, Ms. Lorette received ten injections with DepoMedrol by Dr. Crosby and none of the injections containing solutions were into the muscle around the right sacroiliac area. Dr. Chubra‑Smith performed eleven injections with DepoMedrol and only one of these injections was into the muscle around the sacroiliac area. This one injection was on the right side at the top of the gluteus maximus lateral to the iliac spine, and Dr. Chubra‑Smith’s evidence is that this was not a sacroiliac joint injection.

Other Relevant Treatment

[41] While attending THC, the Plaintiff went to see other doctors, including Dr. Jaworski, from whom she sought trigger point injections. At Dr. Jaworski’s office she completed a McGill Pain Questionnaire dated February 28, 2002. She concedes it is accurate. In the “Pain Description” section, the Plaintiff stated her complaints included:

(a) “constant headache” and “severe base skull cervical C1 C2 C3”

(b) “SI referred to groin, buttock and leg” and “right SI”

(d) “thoracic lumbar pain tight”

[42] The Plaintiff also filled out a word association section with the following:

(e) “torturing” headache and neck

(f) “intense” neck and “unbearable” headache

(g) “cramping” groin and leg

(h) “killing” headache

(i) “sore” and “aching” elbow

[43] After her last visit at THC on March 22, 2002, the Plaintiff experienced a pneumothorax. There is a description of what occurred, based on a history provided by the Plaintiff, at Ex. A, p. 3 of Affidavit #2 of Dr. Chubra‑Smith:

Unfortunately on Mar 22/02 just prior to my holidays – the TPI of (L) thorax resulted in a pneumothorax which required 5 days of O2 Rx & daily CXR’s at Surrey Mem. Hosp. (Pt. refused chest tube) Symptoms came on ~ 8 hours after the block.

[44] The pneumothorax resolved entirely. By at least April 2002 there was no evidence of any residual effect from the pneumothorax. The Plaintiff submits it is fair to say this healed, but that she was still experiencing ongoing chest pain. The Plaintiff was evaluated by Dr. Feige of South Fraser Respirology, whose opinion was that:

There is no evidence of any residual pneumothorax, nor is it likely that there is any residual complication from the previous left-sided small pneumothorax. There does not seem to be any costochondritis. I suspect that the episodes of chest discomfort that Ms. Lorette has experienced were musculoskeletal in nature.

There was a passing reference to muscle atrophy in Dr. Chubra-Smith’s assessment of the Plaintiff on March 20, 2002. However, there was no evidence of muscle atrophy in April or May 2002.

[45] The treatment given at THC was followed by further similar treatment by Dr. Chubra‑Smith at Burnaby Hospital in April 2002, and by Dr. Baker in May 2002. There is evidence that at Burnaby Hospital Dr. Chubra-Smith treated the Plaintiff with mostly “dry-needling” on April 2, 2002. On April 23, 2002, Dr. Chubra-Smith gave the Plaintiff eleven injections using saline and DepoMedrol. On May 6, 2002, Dr. Baker treated the Plaintiff with a nerve block injection containing DepoMedrol.

[46] The Plaintiff disputes receiving further treatment from Dr. Chubra-Smith in April 2002, and says she went instead to Burnaby Hospital in April 2002 to seek from Dr. Chubra-Smith an explanation of: the course of the medical treatment she had received; the wound or depression in her right lower back and increased pain; and new symptomology since the injections at THC. However, based on the records of Dr. Chubra-Smith I find the Plaintiff also had the treatments described.

[47] The Plaintiff went on to receive other consultations and treatments for her pain, including:

(a) Prolotherapy with physicians in British Columbia and in Chicago;

(b) Intravenous vitamin treatments from a naturopath in British Columbia, including intravenous vitamin drips;

(d) Consultations with specialists in physical medicine and rehabilitation, and neurosurgery.

[48] Prolotherapy is a controversial treatment which involves injecting an irritant solution into the body, generally in the region of tendons or ligaments that have been damaged by injury or strain.

[49] In hyperbaric oxygen therapy, 100% oxygen is delivered in a pressurized chamber so that the air pressure within the chamber is 2 to 3 times greater than normal. The combination of increased atmospheric pressure and increased inhaled oxygen allows the lungs to absorb higher concentrations of oxygen. The therapy has been used for chronic pain and for complex regional pain syndrome, but there are few controlled trials in its treatment of CRPS and its role in the treatment of this and other conditions remains unclear.

The Plaintiff’s Condition after Treatment at THC

[50] In 2002, the Plaintiff experienced a severe decline in her health. She was unable to work and relied on social assistance.

[51] She experienced weakness and pain in her right leg, and developed a limp and difficulty walking. In August 2002 she attended the Emergency Department of Surrey Memorial Hospital, reporting pain radiating down her leg, limping, an inability to go to the bathroom and anxiety. Four days later she attended the Emergency Department at Burnaby Hospital, reporting chest pain, difficulty breathing, tinitis, facial numbness, and swelling in her throat.

[52] Also in August, a Dr. Schamberger recommended her for disability benefits, including funding for home care and a wheelchair. Funding was denied.

[53] Her income assistance worker, Ms. Bemisderfer, arranged for the Plaintiff to have a home care assessment. She arranged for the Plaintiff to have access to Handi-Dart transportation. She arranged to provide the Plaintiff with, based on the recommendation of an occupational therapist, a hand-held shower and shower stool so she could safely shower.

[54] Throughout the fall, the Plaintiff made more visits to the Emergency Departments of various hospitals, saw many different doctors, and continued to experience debilitating pain. She was barely able to walk and had to support herself to do so.

[55] The Plaintiff describes her condition:

Throughout the fall of 2002 and early 2003 I was having a difficult time in every aspect of my life. I was unemployed and unable to work, I had no money, my vehicle was repossessed, I was fighting for disability benefits, I was unable to find a family physician, I was incredibly sick and no-one could provide me with a diagnosis, my condition continued to deteriorate rapidly, and I was contemplating suicide because I could not fathom living with this pain. My only concern was to get a diagnosis and obtain treatment.

[56] Ms. Bemisderfer confirms that the Plaintiff was suicidal; her affidavit states that she engaged the Plaintiff in a verbal suicidal contract that the Plaintiff would contact Ms. Bemisderfer prior to ending her life. Her former boyfriend, Richard Helm, confirms that in June 2002 the Plaintiff was much changed. He describes her as a “different person” in terms of her health and wellness. She was unable to engage in activities she used to enjoy and complained of pain everywhere, particularly in her back, pelvis, and legs. When he returned a few months later, he reports she rarely drove, did not really go out, and was almost always in bed. By 2003, she had sold most of belongings and her car had been repossessed.

[57] In January 2003 she saw a neurosurgeon who first mentioned that the Plaintiff might suffer from RSD. In March 2003, Dr. McDonald diagnosed the Plaintiff with CRPS based on a telephone conversation he had with her, and on the documentation of two other doctors. MSP denied her request for funding to receive treatment in the United States. In June 2003, her homecare services were terminated. She describes herself as, at the time, weighing 89 pounds and being “completely debilitated”. In the fall of 2003, she obtained private funding for her treatment in the United States.

[58] The Plaintiff personally addressed the court. The Defendants graciously did not object.

Omissions in the Evidence

[59] Counsel for the Defendants drew my attention to some mysterious discrepancies between the Plaintiff’s copies and the Defendants’ copies of the record of Burnaby Hospital emergency dated November 23, 2002 and in the Fraser Health Authority Emergency/Ambulatory clinical record dated October 23, 2002 (Ex. 4).

[60] The Plaintiff’s copy tendered as exhibits to her affidavit of April 4, 2008 of the Fraser Health Authority record, in the lower right corner under, “DIAGNOSIS:” omits the words, “ACUTE ON CHRONIC BACK” before the word, “PAIN”. Those words do appear in the Defendants’ copy. Thus, the important words, “ACUTE ON CHRONIC BACK” fail to modify or describe “Pain” in the Plaintiff’s copy.

[61] In the Burnaby Hospital Record, dated November 23, 2002, the Defendants’ copy has the words, “pale, warm, dry” to describe the Plaintiff’s skin condition. However, those words have been removed from the Plaintiff’s copy.

[62] Also, the words “pt. had MVA in 2000. has” which comes immediately before the words, “suffered from lower back pain since”, have been removed from the Plaintiff’s copy but are present in the Defendants’ copy of the same record.

[63] The Plaintiff’s copies therefore are missing the words that could clearly be considered prejudicial to her position. No explanation was offered for this interesting discrepancy in the records.

Discussion

Postponement of the Limitation Period

[64] All the parties agree that section 3(2) of the Limitation Act contains the time limit which governs the Plaintiff’s claim for personal injury on the basis of negligence and her claim in battery. Section 3(2) provides:

3 (2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:

(a) subject to subsection (4) (k), for damages in respect of injury to person or property, including economic loss arising from the injury, whether based on contract, tort or statutory duty;

…

[65] In this case, the treatment that the Plaintiff alleges caused her injury, CRPS, occurred at THC between January and March of 2002. The Plaintiff filed her writ of summons on December 31, 2004.

[66] She relies on the postponement provision in section 6(3), which postpones the running of time for personal injury and professional negligence. Absent postponement, the limitation period commences when the cause of action arose: Thomas v. Vancouver Coastal Health Authority, 2006 BCSC 422 at para. 17; Levitt v. Carr (1992), 66 B.C.L.R. (2d) 58 (B.C.C.A.).

[67] Section 6(3) provides:

6 (3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4):

(a) for personal injury;

…

[68] Section 6(4) qualifies s. 6(3), providing:

(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and

(b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action.

[69] Section 6(5) defines “appropriate advice” and “facts” within the meaning of s. 6(4):

(5) For the purpose of subsection (4),

(a) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,

(b) "facts" include

(i) the existence of a duty owed to the plaintiff by the defendant, and

(ii) that a breach of a duty caused injury, damage or loss to the plaintiff,

…

[70] Finally, section 6(6) provides that the burden of proving the running of time has been postponed is on the person claiming the benefit of the postponement.

[71] In Ounjian v. St. Paul’s Hospital, 2002 BCSC 104, the court considered the components of s. 6(4) of the Limitation Act. It reiterated the three components Lambert J.A. articulated in Vance v. Peglar (1996), 138 D.L.R. (4th) 711 (B.C.C.A.) and found, at para. 21, that there is also a fourth component of s. 6(4):

1. The identity of the defendant is known to the plaintiff.

2. The plaintiff has certain facts (including the facts set out in s. 6(5)(b)) within her means of knowledge.

3. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success.

4. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action.

[72] All four components must be satisfied before time begins to run. The Plaintiff commenced her action on December 31, 2004. Therefore, all four components must have been satisfied by December 31, 2002 in order for the limitation period to have expired before the commencement of the action.

First Component

[73] In this case, it is common ground that the Plaintiff knew the identity of the Defendants during the period she received treatment at THC, from January to March 2002.

Second Component

[74] When the Plaintiff had certain facts within her means of knowledge is a more difficult issue. In this case, there can be little doubt and I find that the Plaintiff knew the doctors who treated her at THC owed her a duty of care. Rather, the issue is when she had within her means of knowledge the “fact” that the Defendants had breached their duty, causing her the injury, CRPS.

[75] The Plaintiff argues that she did not know what was wrong with her until March 2003 when she was diagnosed with CRPS. She argues that no causal connection was made between her treatment at THC and her injury, CRPS, until January 2004 when Dr. Neubauer, a Florida physician who treated the Plaintiff, confirmed the diagnosis. The Plaintiff submits that, among other reasons, the limitation period did not begin to run until she was diagnosed with CRPS.

[76] In Levitt, our Court of Appeal held at p. 69 that the “facts falling within the plaintiff's means of knowledge are, firstly, those actually known, and secondly, those which would become known if he took such steps as would have been reasonable for him to take in his circumstances”.

[77] In Thomas, Pitfield J. considered the second component of the test at para. 23:

As I appreciate the applicable jurisprudence, it is not necessary that all available information necessary to prove the cause of action actually be in the plaintiff's possession before the limitation period begins to run. What is important is that the claimant be in a position to gain access to the material information.

[78] In Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234 (B.C.C.A.) Taylor J.A. considered the second requirement of s. 6(4) at pp. 263-264:

I have concluded that where, as here, the fact that injury has been suffered -- surgery which "backfired totally" -- is known to the prospective plaintiff, and where a reasonable person in his position would have appreciated that this may reasonably have resulted from a breach of duty on the part of a person whose identity is known to the prospective plaintiff, and where the fact that it was so caused could reasonably be discovered by obtaining advice available to the prospective plaintiff (even though the assistance of a lawyer or other intermediary might be required in order to obtain such advice) then the relevant "facts" should be regarded as falling within his "means of knowledge" for the purpose of section 6(3)(i).

I say this because to hold that time does not start to run in such circumstances until the prospective plaintiff happens to receive expert advice confirming that the relevant breach of duty is a possible explanation for the problem -- let alone a probable or likely explanation -- would in my view unreasonably expose prospective defendants to 'stale' claims.

[79] In Karsanjii, the plaintiff had back surgery on two occasions, and alleged that the surgeon had performed the surgeries negligently. Taylor J.A. found that the time would have started to run once Mr. Karsanjii knew the operation was unsuccessful and a reasonable person in Mr. Karsanjii’s position could discover the reason by proper inquiry. This was so because Mr. Karsanjii had obviously suffered damage, “in the sense of a failed operation” (p. 264) and it might obviously have been caused by negligence on the doctor’s part.

[80] The Plaintiff argues the facts of Karsanjii are distinguishable from the case at bar. In Karsanjii, specific surgery was had, on two certain dates, on a discrete, injured area of the body. On the other hand, the injury the Plaintiff suffered in this case is CRPS, the symptoms of which are more generalized. Further, she did not get a diagnosis until March 6, 2003. The possibility that she had CRPS was not mentioned to her until January 20, 2003.

[81] I agree with the Plaintiff that the facts of Karsanjii are distinguishable from the case at bar. The connection between her generalized symptoms of pain and the treatment she received at THC is less obvious than the connection between back surgery that “backfired totally” and subsequent back pain.

[82] The question this Court must answer is when the Plaintiff had certain facts within her means of knowledge.

[83] In this case, I find the Plaintiff had the necessary facts within her means of knowledge when she declined to return to THC for treatment. Her last treatment was on March 22, 2002. It is true that was the day of the accidental pneumotharax, but the Plaintiff wrote on p. 3 of her letter of May 4, 2002, to THC, referring to her pneumotharax that, “…sometimes things happen, I have not, nor will I make a big deal out of this….”.

[84] In her Amended Statement of Claim at para. 61, the Plaintiff states that she made two visits to Dr. Chubra‑Smith at her practice at Burnaby General Hospital in April 2002. The purpose of the visits was to “seek some accounting or explanation” of the course of treatment she had received from Dr. Chubra‑Smith. She wanted an explanation for the depression in her lower back, and for “the increase in pain and new symptomology since the injections” at THC. These visits show that the Plaintiff had connected her symptoms to her treatment at THC in April 2002.

[85] That the Plaintiff suspected the treatment she received at THC was a possible cause of her declining health is apparent in the Plaintiff’s own evidence. For example, she reports that in April 2002 she consulted Dr. Hershler about burning pain she was experiencing in her legs; she notes that prior to attending to THC she had never experienced burning pain in her legs.

[86] The Plaintiff’s letter of May 4, 2002 to THC outlines numerous issues and complaints she had with the treatment she had received. She asked that THC refrain from contacting her as she was going to try to get well on her own.

[87] The Plaintiff submits that the Defendants did not advise her that she had received steroid injections at THC. However, the evidence of Dr. Baker indicates the Plaintiff told him in May 2002 that she had received steroid injections at THC. She made a similar comment to her boyfriend Richard Helm in June 2002.

[88] Also, there is evidence that on December 3, 2002 the Plaintiff indicated to Beate Desroches, the Nursing Supervisor at Bayshore Home Health, that she was “looking into legal action against pain clinic due to them not f/u on report from RN that tissue show signes [sic] of atrophy and cont with cortisone injection causing her present condition”.

[89] In this case, I find that the Plaintiff had the necessary facts within her means of knowledge to link her treatment at THC to her subsequent pain when her cause of action arose. In fact, I find on the evidence that she did in fact make a connection between the treatment and her injuries in April 2002. The Plaintiff’s own pleadings disclose that she had made this link, and that she visited Dr. Chubra‑Smith to get an explanation or “accounting” of her new symptoms. That she went to Dr. Chubra‑Smith to have her account for her symptoms supports my finding that she had connected her injury to her treatment at THC by April 2002.

[90] While I find that the Plaintiff had the necessary facts within her means of knowledge when her cause of action arose I note there is other evidence that this criterion was satisfied well before December 31, 2002. For example, the Plaintiff claims she did not have a copy of her Assessment Report from THC until November 2002, and that the Report was necessary for her to learn the details of her treatment. However, I find the Plaintiff had access to her Assessment Report as early as May 4, 2002. On that date, she wrote a letter to THC to express various complaints and issues she had with their treatment and conduct. The letter contains nearly direct quotes from the Assessment Report. I infer that the Plaintiff did have access to the Report by May 2002 in spite of her position that she did not receive it until November 2002.

[91] Further, I note that it is not necessary for the Plaintiff to have a diagnosis of her injury in order have the requisite facts within her means of knowledge. As the court in Karsanjii noted at p. 264, to wait for time to run until the plaintiff has expert evidence confirming that the breach of duty may have caused the injury would “unreasonably expose prospective defendants to 'stale' claims”. In these circumstances, it was not necessary for the Plaintiff to have a diagnosis in order to have the facts within her means of knowledge. To satisfy the second condition, it is sufficient to find, as I have found, that she had connected the treatment she received at THC with her injuries and had all other necessary facts within her means of knowledge.

Third Component

[92] The Plaintiff argues that she was not in a position to seek legal advice in 2002 because she did not yet have a diagnosis of her injury. As indicated above, it is not necessary for the Plaintiff to have a diagnosis; the test for the third component of s. 6(4) “requires one to assume that the claimant obtained notional advice from a notional advisor at the time that the facts were known to the claimant or within her means of knowledge”: Thomas at para. 24.

[93] In Ounjian at para. 28, the court held:

The abstraction of notional advice by notional advisors means that the actual advice or the absence of advice is not relevant. As pointed out by McEachern C.J.B.C. in Vance v. Peglar at p. 261, appropriate advice is deemed to be competent advice, which may be different from actual advice or no advice. He also pointed out that the limitation period is not postponed until the plaintiff obtains a favourable opinion.

[94] In this case, I find that a reasonable person in the Plaintiff’s position, knowing that she had new symptoms and increased pain since receiving treatment, having connected those injuries to her treatment, and having taken the appropriate advice, would regard those facts as showing that an action would have a reasonable prospect of success. While I find that the third component was satisfied when her cause of action arose, I note that there is additional evidence that the Plaintiff was contemplating pursuing litigation against THC in December 2002. She told Ms. Desroches on December 3, 2002 that she was considering taking legal action against THC.

Fourth Component

[95] Section 6(4)(b) provides that time does not begin to run until the Plaintiff, in her own interests and taking her circumstances into account, ought to be able to bring an action.

[96] The Supreme Court of Canada in Novak v. Bond, [1999] 1 S.C.R. 808 considered how the court should construe s. 6(4)(b) of the Limitation Act. Writing for the majority, McLachlin J. (as she then was) held at para. 90 that the limitation period will be postponed if:

[T]he individual plaintiff's interests and circumstances are so pressing that a reasonable person would conclude that, in light of them, the plaintiff could not reasonably bring an action at the time his or her bare legal rights crystallized. The task in every case is to determine the point at which the plaintiff reasonably could bring an action, taking into account his or her own interests and circumstances.

[97] She held at para. 85 that “the reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff's own interests and circumstances were serious, significant, and compelling”.

[98] McLachlin J. gave the following examples of when a plaintiff might not be able to reasonably bring an action at para. 85:

[A] plaintiff may not reasonably be able to bring an action when, viewed objectively but with regard to the plaintiff’s own situation, the costs and strain of litigation would be overwhelming to him or her, the possible damages recoverable would be minimal or speculative at best, or other personal circumstances combine to make it unfeasible to initiate an action.

[99] The Plaintiff relies heavily on the Novak decision to support her position that based on her interests and circumstances, she could not have reasonably brought an action at the time her cause of action arose. She submits that after she received treatment at THC and throughout 2002 she was focussed on regaining her health through obtaining medical advice and treatment. Indeed, her MSP record reflects that she saw 37 health professionals in 2002. She points to the following passage at para. 40 in Novak, where the court’s approach to section 6(4)(b) of the Limitation Act is discussed:

It recognizes that in some cases, the plaintiff’s own circumstances and interests may be so compelling that it cannot be reasonably said that he or she could bring an action within the prescribed limitation period. Finally, it makes practical sense. People ought to be encouraged to take steps short of litigation to deal with their problems. They should not be compelled to sue when to do so runs counter to a vital interest, such as the need to maintain their health in the face of a life-threatening disease.

[100] Additionally, the Plaintiff relies on the decision in Lusignan v. Coleman, 2007 BCSC 1811 at para. 32 where the court found that the plaintiff’s focus on regaining his health and sustaining his belief that he was cured of his injury was a serious and compelling concern sufficient to postpone the running of the limitation period.

[101] However, in my opinion, the facts in Novak and Lusignan are distinguishable from those before me. Rather, I find the facts similar to those in Cowen v. Gray, 2001 BCSC 487. In that case, the defendant doctor recommended that the Plaintiff take Gravol tablets for her dizziness and nausea. The plaintiff did not read the instructions on the Gravol package which instructed the user about dosage, and cautioned against driving or consuming alcohol. The plaintiff took the medication, consumed alcohol, and then drove. She lost consciousness while behind the wheel and her car left the road. The plaintiff suffered a closed head injury, a cranofacial injury, post-traumatic stress, headaches, anxiety, sleeplessness and shock. Two and a half years after the accident, she sued the defendant. Evidence was led at trial that she had memory loss, chronic pain syndrome, headaches, and was unable to work.

[102] The trial judge held that although the plaintiff suffered from a mental disability and several physical illnesses, her circumstances did not meet the requirements of s. 6(4)(b). The court accepted at para. 52 that “she suffered considerable pain and discomfort in the years following the accident”, but found that “her interests and circumstances were not so ‘serious, significant, and compelling’ as to warrant the postponement of the running of time….” The court went on to find at para. 53:

At no time was her hold on life "tenuous", either physically or mentally. The costs and strains of litigation would likely have been difficult for her, but there is no evidence to suggest they would have been "overwhelming". Nor do I believe that her circumstances combined to make it "unfeasible" for her to initiate an action earlier than she did.

[103] In this case, the criteria in s. 6(4)(b) was satisfied at least by April 2002. At that time, a reasonable person with the Plaintiff’s own interests and circumstances, ought to have been able to bring an action. As McLachlin J. commented in Novak at para. 84:

Section 6(4)(b) therefore refers to a time at which, in light of the plaintiff’s particular situation, the bringing of a suit is reasonably possible, not when it would be ideal from the plaintiff’s perspective to do so.

[104] In this case, while I appreciate that the Plaintiff was preoccupied with obtaining a diagnosis for her symptoms, and that it was perhaps not an ideal time for the Plaintiff to commence an action, it was clearly “reasonably possible” for the Plaintiff to do so in spite of her symptoms.

[105] I find on the evidence that in late August 2002, the Plaintiff’s condition worsened. She saw many health care professionals throughout the fall of 2002. Her evidence is that “throughout the fall of 2002 and early 2003 I was having a difficult time in every aspect of my life”. She was struggling to obtain disability benefits, very ill, undiagnosed, and contemplating suicide.

[106] However, there is a dearth of evidence about the Plaintiff’s activities following her treatment at THC and throughout the summer of 2002. There is evidence that she saw two doctors in April and two doctors in May, but then there is a gap in her evidence until August 19, at which point she attended at the Emergency Department of Burnaby General Hospital complaining of anxiety, an inability to go to the bathroom, and pain radiating through her leg and into her foot. There is evidence that when the Plaintiff’s boyfriend visited her in June 2002, her health had changed, she had pain, and she could not do the things they used to do. He stayed with her for a few weeks. Several months later he returned. At this time, he often had to drive the car and the Plaintiff did not go out much anymore.

[107] The evidence about her interests and circumstances from the time she was treated at THC until late August 2002 is scant and unpersuasive. It is insufficient to discharge her burden of proving that a reasonable person, with the Plaintiff’s interests and circumstances, could not have brought an action against the Defendants. It may have been difficult for her to pursue litigation. However, I am not persuaded that it would have been overwhelming for her to do so. Nor has the Plaintiff proved that it was unfeasible for her to start an action because of her circumstances. Simply put, a reasonable person would not find her interests and circumstances serious, significant and compelling so as to warrant the postponement of the running of time.

[108] If there was any postponement of the running of time with respect to the limitation period, it was not postponed beyond late April 2002 when she confronted Dr. Chubra‑Smith about her treatment. The limitation period expired at the latest in late April 2004, eight months prior to the commencement of the action on December 31, 2004. The action was statute barred prior to its commencement and should not have been brought.

Suitability of Rule 18A

[109] The Plaintiff argues this case is not suitable for determination under Rule 18A because there are material conflicts in the evidence which cannot be resolved. She also submits it would be unjust to proceed under Rule 18A. The Plaintiff submits that such a finding would give her time to marshal expert evidence to support her claim, conduct examinations for discovery and generally, she would have all the advantages of the “usual” procedures.

[110] Rule 18A(11) provides:

On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to decide the issues on the application,

…

[111] I have found it possible to find the facts necessary to grant judgment under Rule 18A. There is little contradiction in the evidence on this issue. Instead, the dispute arises on the application of the law to the facts, but I have rejected the Plaintiff’s position as being contrary to the law.

[112] Indeed I have found the necessary facts from the Plaintiff’s own affidavit evidence filed at this hearing, including the affidavits of her former boyfriend, Richard Helm, the Plaintiff’s own detailed affidavit sworn April 4, 2008, that of Ms. Bemisderfer, Beate Desroches and the Plaintiff’s mother. Paragraph 61 of the Plaintiff’s Amended Statement of Claim is also pertinent.

[113] The Defendants did not dispute that in the fall of 2002 and early in 2003, the Plaintiff was very ill. There were no serious evidentiary conflicts to be resolved on the limitation issue. This matter is clearly suitable for disposition under Rule 18A. There is ample undisputed evidence filed by the Plaintiff herself to decide the issue on application of the law.

[114] The Plaintiff had counsel on this issue and he capably argued it on her behalf.

[115] This hearing date was the fifth time the Defendants’ 18A application had been set down. Each time, the Plaintiff was accommodated with an adjournment to better prepare. Her evidence on this issue will not improve.

[116] In view of my conclusion that the Plaintiff’s claims were statute barred before she commenced her action, it is not necessary to address her claims.

[117] I dismiss the action with costs to the Defendants at Scale B.

“The Honourable Madam Justice MacKenzie”

Citation:	*Lorette v. Thorson Health Centre,*
	2008 BCSC 552