ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, JARVIS & HOWDEN JJ.
B E T W E E N:
WINSOME ELIZABETH SMITH
Plaintiff (Respondent)
- and -
THE CITY OF TORONTO
Defendant (Appellant)
V.F. Francis, for the Plaintiff/Respondent
K. McGivney & K.E. Kirkpatrick, for the Defendant/Appellant
HEARD: March 2, 2005
HOWDEN J.
1The issue in this appeal is whether, in law, knowledge of the significance of an injury delays the running of a limitation period and whether discoverability is a genuine issue for trial in the circumstances of this case. It came before us, with leave, from an order of a motion judge dismissing a motion for summary judgment brought by the appellant.
2On May 8, 2000, the respondent, a pediatric dentist, was walking near her office when she tripped and fell on her right side. She noticed a defect in the sidewalk, what she calls a cutout, and believed that it caused her to fall. She also was aware that repair of the sidewalk was the responsibility of the appellant City of Toronto and that she had sustained a shoulder injury.
3The respondent did not see a lawyer until October, 2000. She commenced this action on November 14, 2000, some six months after her fall. Following exchange of pleadings, the appellant moved under Rule 20 for summary judgment dismissing her action due to passage of the statutory limitation period. The Municipal Act in section 284(2) provides:
- (2) No action shall be brought against a corporation for the recovery of damages occasioned by such default, whether the want of a reasonable state of repair was the result of non-feasance or misfeasance, after the expiration of three months from the time when the damages were sustained.
4In dismissing the motion, the motion judge stated the following:
In this case, the discoverability of the injury, the damage is in issue. On (the respondent’s) version of the facts she believed the dislocated shoulder was relocated on the day of the fall. She returned to work the day of the fall and with the exception of a shorter day on the day of the fall she continued to work every day. She had no reason to believe her injuries were serious and therefore no reason to consider suing until August when she spoke to Dr. Ogilvie-Harris.
The court at trial on this evidence might find that in spite of reasonable diligence she did not discover it was reasonable to consider suing until late August 2000.
While I appreciate that the threshold cases may be distinguishable on the basis that there is no cause of action until the threshold is overcome, it is not entirely clear that the Supreme Court of Canada continues to be of the view that the knowledge of any injury in itself is sufficient and that is completely irrelevant that the injury turns out to be more severe than originally thought.
The Supreme Court of Canada in Peixeiro at page 435 . . . referred to Cartledge v. Jopling, [1963] 1 All E.R. 341 in support of the statement that the exact extent of the loss need not be known for the cause of action to accrue once the plaintiff knows that such damage has occurred. However, Major J. later wrote at para. 46 that the discoverability principle is applicable to personal injuries notwithstanding Cartledge v. Jopling.
It is unclear to me whether, in making that statement the Supreme Court of Canada was modifying the principle in Cartledge v. Jopling cited above i.e.: that the exact extent of the loss need not be known for the cause of action to accrue. If the injury when sustained was so minor or seemed to be so minor that it was reasonable for the plaintiff not to direct his or her mind to bringing an action, he may have been allowing for a situation in which the limitation would not start to run.
5In her affidavit on the summary judgment motion, at paragraph 9, the respondent stated:
Dr. Ogilvie-Harris saw me on August 16, 2000, with the x-rays and he sent me for ultrasound on August 22, 2000. He then told me that I had a torn rotator cuff and I would need surgery. … This was the first time that I learned that I had suffered a significant injury in the fall in May and that it could severely impact my ability to practice dentistry in the future and carry on my activities of daily living. From the date of my fall in May until I received a diagnosis from Dr. Ogilvie-Harris, I had continued to work full-time.
6The evidence before the motion judge further disclosed that the respondent went for treatment on the day of her fall and was told by a physiotherapist or chiropractor that her right shoulder was dislocated. The shoulder was put back into position. She saw her family doctor because of continuing pain within three days. The doctor noted a markedly reduced range of movement due to pain. She received a prescription for an anti-inflammatory and was told to follow up with physiotherapy. The respondent stated on examination for discovery that she continued to work but the pain persisted. (Transcript, page 51) By mid-July, she complained again to her doctor of continuous worsening shoulder pain and inability to sleep. In late July, on referral to a specialist, who examined her and her X-ray, she was told that she could have an acute aggravation of a possible old rotator cuff injury; an arthroscopic intrusion would be required to confirm this. The pain persisted. On July 31, the respondent again saw her family doctor and requested a second specialist opinion. On August 22, an ultrasound was conducted at the request of a second specialist. It indicated a “significant tear” of the rotator cuff. It was then, or within a short time after August 22 (the doctor’s report does not provide the precise date), that an open surgical repair was recommended. The surgery was performed on November 13, 2000, with an incomplete result. (Discovery Transcript, pages 23-26, 50-53; Reports of Dr. Kessel, October 17, 2001, and Dr. Ogilvie-Harris, March 26, 2001)
7The motion judge concluded that there was a genuine issue for trial as to when the respondent knew, or ought reasonably to have known, the seriousness of her injury and that, in view of uncertainty in the law, that determination could impact on the start of the limitation period so as to bring the commencement of this action within the statutory limitation period.
8The law on this issue was set out by the Supreme Court of Canada in Peixeiro v. Haberman (1997), 1997 325 (SCC), 151 D.L.R. (4th) 429. That was a personal injury case arising from a motor vehicle collision which, unlike this one, was subject to statutory restriction by the Insurance Act. That restriction barred causes of action for personal injury unless the claimant was permanently disfigured or sustained permanent serious impairment of an important bodily function. Before addressing the effect of the statutory threshold, Major J. stated for the Court at paragraph 18, the legal principle relevant here:
It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 57 O.R. (3d) 129, . . . the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.
[emphasis added]
9Three observations flow from this passage. First, in enunciating the law on this subject, it is clear that the Supreme Court of Canada considered and rejected a test similar to that used by the motion judge, namely, that a limitation period is not triggered until the extent and exact nature of the injury is known or ought to have been known. It was only the bar in the form of the statutory automobile insurance threshold limiting personal injury causes of action to certain serious injuries, which led the Court in Peixeiro to its conclusion delaying the running of the limitation period.
10Second, Major J. referred in Peixeiro to the case of Cartledge v. E. Jopling & Sons Ltd. in the above passage and again later. It was the later reference which gave rise to the motion judge’s sense that the law was put in some doubt. That later reference came about as Major J. was considering and rejecting submissions that the discovery rule could not be applied. Major J. wrote at para. 40:
The appellant submitted that as a matter of law, the discoverability principle was inapplicable to personal injury actions. Notwithstanding Cartledge v. E. Jopling & Sons Ltd., supra, there is no principled reason for distinguishing between an action for personal injury and an action for property damage (see Kamloops, Sparham-Souter and M. (K.) v. M. (H.)).
11Cartledge was a personal injury judgment where, like Peixeiro, legislated provisions impinged upon the common law. It was a case of industrially caused disease incurred by workers without their knowledge until symptoms developed years later. The Supreme Court in Peixeiro referred to Lord Reid’s concurring judgment for his summary of the common law. In the course of the decisive judgment, Pearce L.J. distinguished property cases in which a new cause of action accrues as fresh damage occurs, and rejected that analogy as not applicable to personal injury cases. By the time of Sparham-Souter v. Town & Country Developments (Essex) Ltd., [1976] 2 All E.R. 65, a case of a building defect which became evident some years later, the statute and common law in the United Kingdom had changed and the House of Lords concluded that time should not run until the damage is first detected or should, with reasonable diligence, have been discovered. Major J’s excepting of Cartledge discloses no doubt or lack of clarity as to when a limitation period commences tolling in cases not subject to special statutory bars like the no-fault insurance provisions where the claimant is aware of being injured at the time of the tortious incident.(emphasis added)
12The respondent’s counsel submits that the motion judge applied the correct legal test in finding that the respondent’s cause of action did not accrue, and that the limitation period could not be triggered until the respondent became aware, or ought to have been aware using reasonable diligence, that “significant harm to her well-being” had been caused to her. The motion judge relied for this proposition on passages from the majority judgment of La Forest J. in M. (K.) v. M. (H.) (1992), 1992 31 (SCC), 96 D.L.R. (4th) 289 (S.C.C.) at pages 313 and 304. I have read these passages in context carefully. One, an English case, was explaining the different social context of sexual abuse in the 1970’s and underlined the reasonableness of the plaintiff’s inaction at the time of the abusive conduct in not having “considered the injuries done to her sufficiently serious to justify starting proceedings”. The second reference is to La Forest J.’s adoption as the test in cases of incest, when “such a person came to appreciate that a wrong or wrongs that had occasioned significant harm to her well-being could be established”. The discussion in these cases does not occur in the context of a consideration of change to the law generally as to the discoverability rule or as to the tolling of limitation periods. Nor does it relate to awareness or knowledge of the damage sufficient to trigger a right of action; the Supreme Court majority in these passages was addressing the problem central to most incest cases of the abuse victim not making the causative link between her injuries and her childhood history until she received therapeutic assistance. M. (K.) v. M. (H.), supra, at pages 312-315. At page 304, the Court had re-affirmed the policy reason for the discoverability rule from the perspective of fairness to claimants in these terms:
The foregoing discussion has examined the policy reasons for limitations from the perspective of fairness to the potential defendant. However, this court has also said that fairness to the plaintiff must also animate a principled approach to determine the accrual of a cause of action. In Kamloops (City) v. Nielsen (1984), 1984 21 (SCC), 10 D.L.R. (4th) 641, one of the issues that arose was whether the plaintiff’s action was statute-barred by the British Columbia Municipal Act, R.S.B.C. 1960, c. 255, where the plaintiff first became aware of the damage after the one-year prescription. Wilson J., writing for the majority, observed that the injustice which statute-bars a claim before the plaintiff is aware of its existence takes precedence over any difficulty encountered in the investigation of facts many years after the occurrence of the allegedly tortious conduct. [ emphasis added]
13The majority judgment of the Supreme Court of Canada in Peixeiro clearly reflected an awareness of the reasoning in M.(K.); after citing it in regard to fairness concerns, Major J. concluded in para. 36:
It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury, and therefore before it is possible to raise any action.
14The respondent’s counsel also referred to the Ontario Court of Appeal’s judgment in Bourne v. Saunby (1998), 1998 1394 (ON CA), 158 D.L.R. (4th) 101 to support her contention that the discoverability rule requires delay to the start of a limitation period until the claimant is aware of the seriousness of injury. The Court recited the finding of the motion judge that the limitation period began to run, at the latest, when “the plaintiff was aware of his serious personal injuries”. However, the Court rested its finding of a genuine issue for trial not on that ground but on the delayed availability to legal counsel of a federal transport committee order, the breach of which was the basis for the claim.
15After careful review of the relevant authorities, it is my view that there is no uncertainty in the law applicable to this case.
16The standard of review on a point of law is correctness. Where an entire record before a motion judge consists of written evidence, as in this case, interference by an appellate court with findings of fact is limited to misapprehension or disregard of relevant evidence or findings not reasonably supported by the evidence. Where the question concerns application of a legal standard to a set of facts, one of mixed fact and law, a less deferential standard is required. Algoma Steel Inc. v. Union Gas Limited, 2003 30833 (ON CA), 63 O.R. (3d) 78, at paras. 16-19 (Ont. C.A.); Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 (Ont. C.A.).
17In this case, the motion judge found that there was a genuine issue for trial as to when the respondent knew or ought reasonably to have acquired knowledge of the facts on which her claim was based. That is central to the application of the discoverability rule. Smyth v. Waterfall (2000), 2000 16880 (ON CA), 50 O.R. (3d) 481 (Ont. C.A.). The ruling of the motion judge was based on the following view of the evidence:
On her (the respondent’s) version of the facts she believed the dislocated shoulder was relocated on the day of the fall. She returned to work the day of the fall and with the exception of a shorter day on the day of the fall she continued to work every day. She had no reason to believe her injuries were serious, therefore no reason to consider suing until August when she spoke to Dr. Ogilvie-Harris.
In this case, the plaintiff’s medical advice prior to August 2000 could be found at trial to have been supportive of a perception that her injury was so insignificant that her failure to act immediately was reasonable.
18Reviewing and accepting the evidence of the respondent for purposes of this appeal, and with the greatest respect to the motion judge, I am driven to conclude that she misapprehended that evidence. The respondent described what she knew the day of the fall at her examination-for-discovery in these terms:
…my right arm was at an odd angle, it was turned almost backwards. When I looked at my right shoulder, I discovered that the head of the ball was pressing through my blouse.
(Discovery Transcript, pages 23-24)
The report of her doctor indicates that she told him that she could not move her right shoulder and she knew her shoulder was dislocated on May 8 2000, the day of her fall The dislocation was corrected that day, but three days later, her doctor noted, her arm showed “a markedly reduced range of movement due to pain”. She was continued on an anti-inflammatory. She attended for physiotherapy a number of times following the medical appointment in May but the shoulder did not improve. The pain continued without let-up and worsened (Discovery Transcript, page 51). She saw her doctor next on July 19 complaining that the pain was so severe she could not sleep. Her range of movement was the same. She saw Dr. Seligman shortly after July 19, 2000. There is no report from him and the plaintiff failed to mention her visit to him in her affidavit on the summary judgment motion. However, she told her doctor of Dr. Seligman’s tentative diagnosis of an aggravated rotator cuff injury, in July 2000.
19At this point, the respondent knew she had suffered a dislocated shoulder. She had been in pain as a result since the fall. She could not sleep due to pain by July. And she was told in late July that she may have an aggravated rotator cuff injury.
20This is not the case found by the motion judge of a claimant whose injury was “so insignificant that her failure to act immediately was reasonable”. This was not the de minimis injury referred to by Lord Reid in his summation of the common law in Cartledge. Within three days of the fall, her range of movement was affected and the pain was continuing. The pain continued through May and June. The injury had failed to respond to physiotherapy treatments in May. And her range of motion continued to be affected by the pain throughout this period. By July, the respondent knew that she had a continuing injury of such seriousness that the pain was preventing sleep. By late July, she knew from a specialist that it was probably related to her rotator cuff. The only change in August was that she got a second opinion as to the more extended and severe nature and effect of the injury.
21Accepting the evidence of the respondent, I am unable to find that this is a case where damage beyond the de minimis level was not apparent on the day, or certainly within days, of the fall on May 8. Even if the test were awareness of significant injury, by July she knew that she had such an injury and yet no action was brought within the statutory period. A second opinion and the result of the surgery revealed a greater extent of injury but does not operate to delay the running of the limitation period. (emphasis added)
22In Fortier v. Timmins [1999] O.J. No. 3923 (Div.Ct.), this Court held that the reasoning in Peixeiro which invoked the discoverability rule to postpone running of a limitation period did not apply to claims where the plaintiff knows on the day of the accident that she suffered injury. As in Fortier, the respondent knew on the day of the accident that she had suffered a shoulder injury. I see no distinction in fundamental principle here from the holding in Fortier. Following Fortier, there is no genuine issue for trial in this case. Reliance on cases where damage was not apparent at or shortly after the tortious event occurred is misplaced.
23I am very conscious of the significance and sad effect of this judgment on the respondent. It is not arrived at without serious consideration of the law and fairness to her as well as what the Supreme Court of Canada in Peixeiro referred to as the uncertainty to others to hold otherwise. As the Ontario Court of Appeal stated in Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737, at page 744:
Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring the facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based.
24If our interpretation of the law were to give effect to the position of the respondent, it would effectively give her, and other injured persons like her, the right to extend any applicable limitation period repeatedly from time to time, without any apparent limit, as she gained greater knowledge of the increasing severity of their injury and its consequences. For obvious reasons, such an interpretation would negate the purpose of limitation periods and cause unwarranted confusion to those affected.
25For these reasons, the appeal is allowed and the respondent’s action is dismissed.
26Written submissions regarding costs may be exchanged and delivered to the president of the panel, in triplicate, within thirty days.
HOWDEN J.
MATLOW J.
JARVIS J.
Released: 20050422
COURT FILE NO.: 230/04
DATE: 20050422
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, JARVIS & HOWDEN JJ.
B E T W E E N:
WINSOME ELIZABETH SMITH
Plaintiff (Respondent)
- and -
THE CITY OF TORONTO
Defendant (Appellant)
JUDGMENT
HOWDEN J.
Released: 20050422