ONCA confirms hernia mesh lawsuits are statute-barred if filed years after mesh removal and complications
The Ontario Court of Appeal has drawn a hard line on when the clock starts ticking for a hernia mesh lawsuit, which is earlier than many plaintiffs expect. In Wiebe v. Johnson & Johnson Inc., 2026 ONCA 597, the court dismissed three separate hernia mesh lawsuit appeals from men whose claims were thrown out as statute barred.
When limitation period for the hernia mesh lawsuit starts
All three plaintiffs, namely, William Allyn Wiebe, Sergio Fappiano, and Robert Allan Pelletier, had Johnson & Johnson’s polypropylene hernia mesh implanted during separate hernia repair surgeries.
While each man suffered complications that led to revision surgeries and, ultimately, mesh removal, each waited years before filing a hernia mesh lawsuit claim:
- Wiebe had his mesh removed in May 2011 and did not issue his claim a decade later, or until December 2021
- Fappiano had his final revision surgery in March 2015 and filed in August 2021, which is over six years later
- Pelletier’s mesh was removed in January 2018, and his claim was issued in April 2021, or more than three years later
The Ontario Superior Court dismissed all three claims in July 2025, finding that each plaintiff knew or ought to have known the material facts needed to start a claim within months of their final surgery. The Court of Appeal agreed.
What the ONCA said about the discoverability principle
The Court of Appeal confirmed that the discoverability principle under s. 5(1) of the Limitations Act, 2002, does not require a plaintiff to be certain about liability. Under that provision, and as applied in this case, a claim is discovered when a reasonable person ought to have known:
- that an injury occurred
- that the mesh caused or contributed to it
- that the manufacturer might be responsible
- that a court proceeding was an available remedy
The court noted that identifying the mesh manufacturer was not a barrier either. Medical records, which are available to all three plaintiffs shortly after their surgeries, would have revealed the supplier’s name.
Citing the earlier ruling in Lawless v. Anderson, 2011 ONCA 102, the court said that “the plaintiff need only have in her possession sufficient facts upon which she could allege negligence.”
Why a lawyer’s opinion is not a material fact
All three men retained Preszler Injury Lawyers after seeing an advertisement, hearing about the issue from a friend, or being told the mesh appeared on the firm’s internal list of products it believed were defective. The court rejected the argument that learning this constituted discovery of a new material fact.
As pointed by the court, “[s]imply being advised by a lawyer that a claim is appropriate cannot, without more, constitute a ‘material fact’ that a plaintiff must know before the limitation begins to run.” The court drew a direct parallel to Dale v. Frank, 2017 ONCA 32, where a law firm’s press release naming a doctor as defendant did not reset the limitation clock for that doctor’s former patients.
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