Limitation Periods and Discoverability in Medical Malpractice Actions

In finding the Ms. Chamberlain’s case was not statute-barred, the court distinguished it from Karsanjii and similar cases in several important respects. First, the plaintiff’s original complaint was that the mistake in the surgery was that Dr. Matanaj inserted the screws in the wrong position, for which she required additional operations. The court noted that although she believed that improper screw positioning indicated negligence, that was not one of the alleged mistakes that now formed the basis of her claim. Likewise, the court found that the consequences that Ms. Chamberlain understood to have flowed from that negligence – namely pain associated with additional operations – were in the past and among the risks that Dr. Matanaj had warned her about, prior to surgery.

The court found that the expert reports did not serve to merely “confirm” Ms. Chamberlain’s views on Dr. Matanaj’s negligence, but rather that “the claim that has since been brought rests on an entirely new footing, involving different allegations of negligence leading to different, and more serious consequences.”¹¹

Conclusion

As the cases above illustrate, while it is sometimes possible to argue that a plaintiff’s limitation period is postponed due to lack of discoverability, this is fact-dependent and open to a high degree of interpretation from the court. If the limitation period may be about to expire, it is always an option to file the claim but hold off on serving and later amend the claim, if necessary, once expert opinions have been obtained, to avoid the risk of a missed limitation period. 

1. Report of the Ontario Law Reform Commission, Report on Limitation of Actions 9, 10 (1969), adopted by the British Columbia Law Reform Commission’s Report on Limitations, (Project No. 6), 1974, Part II, General, at page 8, cited in Vance v. Peglar, 1996 CanLII 1834 (BC CA)
2. Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5^th ed. (Toronto: Thomson Reuters, 2017) at 483.
3. Ibid
4. Borek v. Dr. Derek Stirling Hopkins, 2020 BCSC 304 at para. 25
5. Ibid, at paras. 51-52
6. Bendall v. Goulart, 2017 BCSC 599 at para. 52
7. Moore v. Castlegar District Hospital, 25 BCLR (3d) 188, 1996 CanLII 2564 (BC SC), at para. 49
8. Thomas v. Vancouver Coastal Health Authority, 2006 BCSC 422 at para 18, citing Karsanjii Estate v. Roque, (1990), 43 B.C.L.R. (2d) 234.
9. Chamberlain v. Matanaj, 2026 BCSC 421 at para. 14.
10. Ibid, at para. 15
11. Ibid, at para. 54.