Simon's Legal Resources

Limitations - Reasons

. Wiebe v. Johnson & Johnson Inc.

In Wiebe v. Johnson & Johnson Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a medical product liability plaintiff's appeal, here brought against "the dismissal of their actions as statute-barred under the Limitations Act, 2002".

Here the court considers the date-specificity that a trial judge must state in their reasons for decision regarding the several LA s.5(1) discoverability elements:

2. The motion judge was not required to make a specific finding as to when the claim was discovered

[41] The appellants argued that the motion judge committed a reviewable error by failing to make specific findings as to precisely when each element of the s. 5(1) test of the Limitations Act, 2002 was met. In support of that submission, the appellants rely on Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, where this court found that the motion judge had erred as she “did not make findings of fact as to when the appellants knew of the matters listed in s. 5(1)(a) of the Limitations Act”: at para. 3.

[42] In my view, Morrison does not stand for the proposition that the appellants advance. The underlying concern in Morrison was that the motion judge did not explain the basis for finding that a reasonable person ought to have discovered the claim more than two years before the issuance of the claim. This court held that “[i]t is not sufficient for the court to say that the claim was discoverable ‘before the expiry of the limitation period’, without explaining why”: at para 30. The essence of the error in Morrison therefore was not the absence of a precise date but the lack of any evidence suggesting “how the potentially relevant information about suspected diagnoses could reasonably have been obtained before it was in fact discovered”: at para. 62.

[43] This is to be contrasted with the present case, in which the motion judge explained what each appellant knew or ought to have known within months of their revision surgery and that the claims were issued well beyond the two-year limitation period. At the time of their final revision surgeries, the only material fact then unknown was the identity of the manufacturer of the mesh. The motion judge made specific findings with respect to each of the three appellants that the medical records could, with reasonable diligence, have been obtained within a few months and, as a result, all of the s. 5(1)(a) elements were, or with reasonable diligence ought to have been known more than two years prior to the issuance of their claims. In the circumstances of these cases, this was sufficient.