Case was filed by the nursing student who accompanied the physician on his rounds
The Ontario Superior Court of Justice has rejected defamation and negligent misrepresentation claims against a physician due to the expiry of the limitation period.
In Filippova v Cross, et al., 2023 ONSC 3777, Galina Filippova was a nursing student at McMaster University. She attended a long-term care home in September 2020 and accompanied Dr. George Heckman on his rounds. The court noted that Dr. Heckman appeared to have reported to the university that Filippova had disagreed with him about a diagnosis and that she did so in the presence of a patient. Dr. Heckman also observed that Filippova was “showing off” her knowledge of medications during the rounds.
In November 2020, McMaster University removed Filippova from the nursing program. She appealed that decision to the senate board for student appeals, which ruled that her “cumulative behaviour,” including disagreeing with a physician’s diagnostic assessment in front of a resident and contacting the physician after hours to discuss their feedback, necessitated her removal from the nursing course.
Following her removal from the college, Filippova commenced a lawsuit against the college, its employees, and the long-term care home. She later sought leave to amend her statement of claim, proposing adding Dr. Heckman as a defendant for defamation and negligent misrepresentation claims.
The Ontario Superior Court of Justice noted that on a motion for leave to amend pleadings, the court should grant leave unless the responding party would suffer non-compensable prejudice, the amended pleadings are scandalous, frivolous, vexatious or an abuse of process, or if the pleading discloses no reasonable cause of action.
Dr. Heckman argued that insofar as they made claims of defamation and negligent misrepresentation against him, the proposed pleadings disclosed no reasonable cause of action. Dr. Heckman asserted that the plaintiff was out of time and barred by the Limitations Act. He said that the elements of the alleged defamation and negligent misrepresentation were known to the plaintiff by September 28, 2022, when she emailed Dr. Heckman to discuss his feedback. The email demonstrates that she knew that Dr. Heckman had reported to the college about her conduct and that because of that report, the college was taking the position to fail her in the nursing course. The plaintiff was removed as a student, at least in part because of Dr. Heckman’s feedback.
The court noted that all the relevant facts pled against Dr. Heckman in the draft amended statement of claim were known to the plaintiff and discovered on September 28, 2020. Accordingly, the limitation period, as against Dr. Heckman, expired on September 28. 2022. Filippova sought to add Dr. Heckman on March 15, 2023, well after the expiry of the limitation period.
The court held that the plaintiff was out of time and that, as a result, there was no reasonable cause of action against Dr. Heckman. The court explained that in determining when the limitation period begins, “the question to be posed is whether the prospective plaintiff knows enough facts to base an allegation of negligence against the defendant. If the plaintiff does, the claim has been ‘discovered’, and the limitation begins to run.”
The court rejected Filippova’s contention that her claim against Dr. Heckman was discoverable only when she received the reasons and order of the McMaster University appeal tribunal on March 4, 2022. The court said that to the extent that those reasons made it clear that the college had relied on Dr. Heckman’s feedback about the plaintiff in deciding to remove the plaintiff, that information was known to the plaintiff in some form already no later than September 28, 2020.
Furthermore, the decision to “fail” the plaintiff from the nursing program was known to have been based on Dr. Heckman’s feedback which he had forwarded to the college and which the plaintiff, according to her, at the time, knew to be false. Her removal from the program followed shortly in November. The court said that in these circumstances, the tribunal reasons received by the plaintiff in March 2022 do not “restart the limitation period.”
The court further said that the claims made against Dr. Heckman were not derivative of the claims made against the defendants and did not depend in any way on the plaintiff having sued the college or the long-term care home. Accordingly, the court found no delay to the start of the limitation period was justified because the plaintiff needed to sue the defendants first or because the damages alleged to have been suffered by virtue of Dr. Heckman’s alleged wrongs were discoverable at a later date.
The court ultimately concluded that Filippova’s claims against Dr. Heckman are out of time and are statute barred.
