The court found that the plaintiff knew when she awoke that she suffered an injury that may well have been caused by negligence on the part of the doctors and nurses. She knew that something had occurred that should not have occurred. The surgery was in her uterus and nothing was supposed to have been done with respect to her feet or the nerves affecting her feet. Based on when the plaintiff ought to have discovered the claim, the court found that the action was not brought within the required time.
Access to Medical Records
Moore v. Castlegar District Hospital, 25 BCLR (3d) 188, 1996 CanLII 2564 (BC SC), involved a plaintiff who was paralyzed following a severe motor vehicle accident. The question before the court was whether the spinal cord injury was caused by the accident or the plaintiff’s intervening medical care. The defendant physicians also raised a limitation defense based on when the plaintiff ought to have discovered the material facts underlying the action.
While the action was ultimately dismissed on the issue of causation, the court accepted that the limitation period was postponed while the plaintiff was in hospital with no access to his medical records and no way of knowing that there was a reasonable prospect of a successful action:
It was on the evening of December 11, 1989, that the plaintiff had the first inkling of a possible problem with respect to his care, and the practical realities are that the collection of even the most basic facts would take time, a notional medical advisor needs at least those basic facts to provide any opinion and a notional legal adviser requires both the facts and a medical opinion before any advice can be given. On the evidence, it could not be said that an individual acting reasonably and diligently could have accomplished even that much by March 13, 1990.⁷
Availability of Supportive Expert Opinions
Several cases have dealt with the issue of whether the limitation period is similarly postponed until the plaintiff obtains supportive expert opinions. In Thomas v. Vancouver Coastal Health Authority et al., 2006 BCSC 422, the court echoed the comments of the BC Court of Appeal in Karsanjii Estate v. Roque, for the proposition that “to hold that time does not start to run… 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… unreasonably expose prospective defendants to “stale” claims.”⁸
Recently, in the case of Chamberlain v. Matanaj, 2026 BCSC 421, the defendant relied on the conclusions of Karsanjii and Thomas for the proposition that the running of the limitation period will not be postponed while the plaintiff waits to obtain a confirming expert report, and that the plaintiff therefore did not bring her claim within the limitation period.
