The court noted that s.6 of the Limitation Act, which applied to all of the claims being advanced by Ms. Borek, set a two-year limitation period from the date the claim was discovered. The court also referred to s. 8 of the Limitation Act, which set out how the date on which a claim is discovered is determined:
8. Except for those special situations referred to in section 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:
- (a) that injury, loss or damage had occurred;
- (b) that the injury, loss or damage was caused by or contributed to by an act or omission;
- (c) that the act or omission was that of the person against whom the claim is or may be made;
- (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.
The court agreed with Dr. Hopkins that under s. 8(a) of the Limitation Act, he need only establish that Ms. Borek knew that she had suffered some kind of injury, but she did not need to know the extent or type of injury or that it had a tortious cause.⁴ The court found that Ms. Borek knew she was experiencing an extraordinary amount of pain and other symptoms, including an inability to chew as early as January 2014. As this was the primary injury and loss she claimed in the action, the court found that she was aware of this loss more than two years before the claim was filed.
The court also found that, by January or February 2014, Ms. Borek believed that the temporary crowns installed by the defendant were causing her pain and other losses, and it did not matter for the purposes of s. 8(b) whether she believed that the pain was an unavoidable aspect of treatment or whether it was due to some departure from the standard of care.
With respect to s. 8(d) whether the plaintiff knew, or ought to have known, that having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury loss of damage, the court considered the extent of Ms. Borek’s understanding of the reasons for her pain and intentions with respect to completing her treatment with Dr. Hopkins.
