COURT OF APPEAL FOR ONTARIO
Simmons, Miller and Wilson JJ.A.
BETWEEN
Joanne Lloyd
Plaintiff (Respondent)
and
William Baker
Defendant (Appellant)
Stefanie Pereira and William West, for the appellant
Kristian Bonn and Rebecca Patten, for the respondent
Heard: December 12, 2025
On appeal from the order of Justice Gary W. Tranmer of the Superior Court of Justice, dated February 25, 2025.
REASONS FOR DECISION
Overview
1The underlying dispute in this matter relates to a motor vehicle accident which occurred in November 2015. Six years later, in November 2021, the respondent, Joanne Lloyd, commenced an action against the appellant, William Baker, claiming damages for injuries sustained in the accident. Mr. Baker brought a summary judgment motion arguing that the action was not timely under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The motion judge dismissed the motion, finding that the claim was commenced within two years from the date Ms. Lloyd knew that there was a reasonable chance that her injuries from the accident met the “permanent serious impairment” threshold under the Insurance Act, R.S.O. 1990, c. I.8. The motion judge found that “there was not a sufficient body of evidence for the plaintiff to have known that there was a reasonable chance of persuading a judge, on a balance of probabilities, that her injuries met the threshold” before July 12, 2020. Mr. Baker appeals from the dismissal of the summary judgment motion and asks that the action be dismissed. We agree that the motion judge erred in his analysis. We grant the appeal and dismiss the action.
Background
2Ms. Lloyd was injured in a motor vehicle accident that occurred on November 24, 2015. The vehicle that she was a passenger in was struck by Mr. Baker, causing her to hit her head and suffer a concussion. At the time, she was recovering from a previous concussion sustained during a workplace accident in April 2015. Having largely recovered from this first concussion, she was scheduled to return to work on November 26, 2015. However, the second concussion resulting from the motor vehicle accident postponed this return date.
3Ms. Lloyd initially believed that she would recover from the second concussion and that her life would return to normal. However, this did not occur. Her symptoms largely persisted. Medical records from the years following the motor vehicle accident indicate that Ms. Lloyd reported continuously of physical and cognitive problems which affected her on a daily basis. She was treated for these issues by both family doctors and specialists without much success. Although she returned to work in January 2016, she did so working only reduced hours and performing modified duties and never returned to full-time regular duties.
4Shortly after the accident, her treating physician opined in a clinical note that the second head injury had aggravated the initial concussion. Ms. Lloyd was diagnosed with post-concussion syndrome, a diagnosis that was confirmed by a number of medical practitioners who assessed or treated her. In a note dated December 1, 2016, a little over a year post-accident, one of her treating physicians recorded that he had counselled her “re: potential prognosis and never reaching 100% or previous baseline”. In a March 13, 2018 letter to the rehabilitation company retained by Ms. Lloyd’s employer following her workplace injury (“Acclaim”), one of her treating physician’s opined it was “unlikely” there would be a treatment that would “suddenly ‘cure’ her post-concussion syndrome.”
5In a report dated July 5, 2018 requested by Acclaim, a neurologist noted that Ms. Lloyd suffered “a direct injury to the brain as a result of the events of 2015.” In addition to other symptoms and their causes, he reported that some of her symptoms were consistent with “mild-moderate concussion with persistent symptoms”. In response to a question about the permanence of Ms. Lloyd’s symptoms he stated, “a response to the question is deemed premature in the absence of MR imaging of the brain and cervical spinal cord.”
6The recommended imaging was completed in January 2019. Counsel acknowledged before the motion judge that the imaging results “showed no significant findings with respect to the brain or spinal cord attributable to the motor vehicle collision.”
7Medical notes dated March 4, 2019 indicate Ms. Lloyd’s symptoms continued and that on that date her treating family doctor referred her to an acquired brain injury clinic. The doctor later determined there was a three-year wait list for the clinic. A further note dated October 28, 2019, indicated Ms. Lloyd had been “symptomatically ‘bad’ lately” and off work since June.
8On November 28-29, 2019, Ms. Lloyd was assessed by a neuropsychologist, Dr. Day. In a report dated March 12, 2020, Dr. Day diagnosed Ms. Lloyd with a “mild neurocognitive disorder due to a traumatic brain injury”. Dr. Day met with Ms. Lloyd to discuss the report on July 12, 2020. Ms. Lloyd stated that, during this meeting, Dr. Day informed her that she would never be “100% better” and that she had suffered “permanent damage”. Dr. Day denied ever providing any such prognosis.
9On November 8, 2021, Ms. Lloyd issued a statement of claim against Mr. Baker seeking damages for injuries sustained in the 2015 motor vehicle accident. Mr. Baker defended the action and pleaded that it was statute-barred. The claim moved forward to examinations for discovery, following which Mr. Baker brought a motion for summary judgment, arguing that the claim was brought outside of the limitation period and should be dismissed.
10The motion judge dismissed the summary judgment motion, finding that it wasn’t until July 2020 – when Ms. Lloyd met with Dr. Day to discuss his report – that Ms. Lloyd knew that she had suffered an injury that would meet the “permanent serious impairment” threshold under the Insurance Act and that, therefore, her claim was commenced within the two-year limitation period.
Positions of the Parties
11Mr. Baker argues that the motion judge erred in failing to consider whether Ms. Lloyd ought to have been aware that her injuries met the threshold prior to July 2020, either on the basis of the information already provided to her or through exercising reasonable diligence in seeking out more information. Mr. Baker argues, further, that the motion judge ignored medical records and Ms. Lloyd’s own statements which indicated that the head injury she had suffered during the motor vehicle accident had immediately and continuously adversely impacted her daily life and ability to function.
12Ms. Lloyd argues that the motion judge correctly set out the law and made no reviewable error in his application of it. The motion judge made a finding that Dr. Day provided new information which allowed her to conclude that her injuries met the threshold. This finding, Ms. Lloyd argues, is owed deference.
Analysis
13Section 4 of the Limitations Act prohibits commencement of a proceeding in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 5 deals with discoverability of claims. In the context of actions for personal injuries arising out of a motor vehicle accident, s. 5 must be considered in conjunction with the statutory deductible1 and the threshold of “serious permanent impairment” under s. 267.5 of the Insurance Act.
14In general, the limitation period in an action for personal injuries arising out of a motor vehicle accident starts to run when the claimant knows, or reasonably ought to have known, that their injuries exceed the statutory deductible and the threshold of serious and permanent injury: Sanei v. Debarros, 2024 ONCA 104, at para. 10, citing Everding v. Skrijel, 2010 ONCA 437, 100 O.R. (3d) 641, at paras. 9-11 and Fennell v. Deol, 2016 ONCA 249, at para. 28.
15Section 5 of the Limitations Act defines discoverability as follows:
5 (1) a claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occured,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made,
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) a person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or a mission on which the claim is based took place, unless the contrary is proved.
16As noted in Sanei, to overcome the presumption in s. 5(2) of the Limitations Act, a person with a claim need only prove that they did not know of their permanent and serious impairment on the date of the accident, not that they exercised due diligence: at para. 12. Where the presumption in s. 5(2) is rebutted, the limitation period begins to run on the earlier of the two dates contemplated in ss. 5(1)(a) and (b). Unlike s. 5(2), s. 5(1)(b) imports the “reasonable person” standard and requires consideration of whether the claimant exercised due diligence: Sanei, at para. 12, citing Fennell, at paras. 22-24.
17The law is settled that a plaintiff need not know the full extent of the injuries suffered in order for the limitation period to start to run. A cause of action is established for damages arising from a motor vehicle accident when it is “reasonably discoverable that the injury meets the threshold”: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549.
18Moreover, a plaintiff need not be certain of success on a claim; the threshold is not that high. The Limitations Act “does not distinguish between meritorious and non-meritorious claims.”: Andrews v. Pattison, 2022 ONCA 267, at para. 8. The evidence required to be successful at trial is different than the evidence necessary to trigger the limitation period. A plaintiff need not have an opinion from an expert indicating that the threshold under the Insurance Act has been met in order for the limitation period to be triggered: Sanei, at para. 25.
19While Ms. Lloyd pleaded that her injuries from the accident of 2015 met the statutory threshold, before the motion judge she asserted that, based on her understanding of what a concussion was and her prior experience with a workplace concussion, she expected to recover from her injuries and it was not until she met with Dr. Day, in July 2020, that she understood that her injuries were permanent. Following that discussion, she contacted a lawyer, and the claim was issued on November 8, 2021, almost six years after the accident.
20The motion judge accepted Ms. Lloyd’s testimony. He found that she reasonably expected to recover from what she understood to be concussion injuries and symptoms, just like she had from the workplace concussion, and that “Dr. Day confirms that that was a reasonable expectation.” He also found that there was not a sufficient body of evidence for Ms. Lloyd to have known that there was a reasonable chance of persuading a judge that her injuries met the threshold before the meeting with Dr. Day. The motion judge treated these findings as dispositive of the motion. They were not. Although Dr. Day confirmed, as the motion judge had noted, that most concussions would be expected to resolve within a matter of months, nowhere did he confirm Ms. Lloyd’s apparent continuing belief that her symptoms would resolve was reasonable. The motion judge was obligated to consider, as set out under s. 5(1)(b) of the Limitations Act, whether Ms. Lloyd reasonably ought to have known that her injuries met the threshold. We agree with Mr. Baker that the motion judge erred in not doing so.
21Ms. Lloyd described serious problems immediately following the accident that affected her in many aspects of her life. These problems continued without abatement for years before Ms. Lloyd’s meeting with Dr. Day. Medical records indicate that one of her family doctors noted early on that Ms. Lloyd had suffered a head injury which had aggravated her previous concussion. Significantly, she was informed by one of her family doctors in December 2016 that she might never return to 100% or to her previous baseline.
22In assessing the reasonableness of Ms. Lloyd’s understanding of her condition, Ms. Lloyd’s testimony that it wasn’t until Dr. Day told her that her head injury was likely permanent that she knew her injuries likely met the threshold must be viewed in the context of the prior medical notes of Ms. Lloyd’s family doctors, which indicate that Ms. Lloyd had previously been informed that she might never fully recover from her injuries, and her own evidence about the nature and duration of her symptoms. While Ms. Lloyd asserts that she did not know that her injuries were permanent and serious before her meeting with Dr. Day, this was not a reasonable view of the matter based on the evidence.
23Unlike other cases, there was no change in condition, unexpected complication, or new diagnosis that changed the nature of Ms. Lloyd’s problems from minor to serious: see e.g., Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 43; Dubreuil v. Lalande, 2014 ONSC 7433, at para. 19; Rockford v. Haque, 2019 ONSC 474, at para. 24. From the outset, Ms. Lloyd’s injuries were debilitating. While Dr. Day may have helped to clarify things for her, his opinion did not change the nature of her problems or her prognosis – indeed, Dr. Day denied ever offering a prognosis. Rather, during his re-examination, he clarified that there “may have been use of terms, such as, ‘[w]e don’t know how far you’ll recover yet. […] Don’t know if it will be back to a hundred or somewhat less than a hundred; we just don’t know.’” Such terms were not dissimilar to those used by her family doctor in December 2016.
24Given the persistence of her significant symptoms and having been counselled in December 2016 that she may never reach “100% or [her] previous baseline”, Ms. Lloyd was obligated to make inquiries about her rights. Although the neurologist equivocated in 2018, one of her treating doctors had opined that same year that it was “unlikely” there would be a treatment that would “suddenly ‘cure’ her post-concussion syndrome.” As noted at para. 14 of Sanei, citing Yasmin v. Alexander, 2016 ONCA 165, at para. 12, “when there is no evidence of a change in a plaintiff’s condition, delayed discovery of a permanent impairment may instead be because they failed to make reasonable inquiries”. Here, nothing her doctors had previously said would suggest that Ms. Lloyd’s prospects for full recovery were good.
25Considering the evidence as a whole, we find that Ms. Lloyd ought to have known that her injuries likely met the threshold before her meeting with Dr. Day in July 2020. The body of evidence sufficient to trigger the limitation period was available to Ms. Lloyd at a much earlier date had she acted with due diligence. Ms. Lloyd’s family doctors and other specialists had offered medical opinions not dissimilar from that of Dr. Day, beginning in 2016. And Ms. Lloyd had her own day-to-day experience with her debilitating injuries, stretching over the course of several years. Her claim was discoverable more than two years before it was commenced. It is not timely and ought to be dismissed.
Disposition
26The appeal is allowed and the action is dismissed. As agreed between the parties, Mr. Baker is entitled to costs of the appeal in the amount of $15,000. He is also entitled to his costs below of $26,000, comprised of the motion costs of $15,000 and the costs of the action agreed at $11,000. All amounts are inclusive of applicable taxes and disbursements.
“Janet Simmons J.A.”
“B.W. Miller J.A.”
“D.A. Wilson J.A.”