Court File and Parties
Citation: Wyderko v. Spers, 2011 ONSC 1650 Divisional Court File No.: 556/10 Date: 2011-03-17 Superior Court of Justice – Ontario
Re: Maria Wyderko, Plaintiff And: Ellen Spers, the Corporation for the Town of Milton and the Regional Municipality of Halton, Defendants
Before: Herman J.
Counsel: Bryan D. Rumble, for the Plaintiff Robin Squires, for the Defendants, the Corporation for the Town of Milton and the Regional Municipality of Halton
Heard: March 8, 2011
Endorsement
[1] The defendants, the Corporation for the Town of Milton and the Regional Municipality of Halton, seek leave to appeal the decision of Roberts J., dated October 15, 2010, in which the motion judge dismissed their motion for summary judgment.
[2] The action arises out of a motor vehicle accident which took place on December 9, 2005. According to the statement of claim, the plaintiff’s vehicle slid on snow and ice and collided with a vehicle driven by the co-defendant, Ellen Spers. The plaintiff alleges that the accident was caused in part by the negligence of the municipal defendants in failing to keep the roadway in a safe state of repair and clear of snow and ice.
[3] The plaintiff, Maria Wyderko, initiated her claim on July 22, 2008, more than two years after the date of the accident.
[4] The defendants sought dismissal of the claim by way of summary judgment because the two-year limitation period had expired. The motion judge dismissed the motion on the basis that the plaintiff had established that there was a genuine issue requiring a trial as to whether she was capable of exercising any due diligence to discover the identities of the defendant municipalities and commence an action before July 22, 2006.
[5] The defendants submit that there is reason to doubt the correctness of the motion judge’s decision and there are conflicting decisions. In particular, they contend that the motion judge made two errors with respect to: (i) the proper period for the consideration of the plaintiff’s due diligence; and (ii) what is required to establish due diligence.
Did the motion judge consider the proper period?
[6] The defendants submit that the motion judge erred in her approach: the motion judge should have focused on what steps the plaintiff could have taken in the two year period immediately following the accident instead of focusing on what the plaintiff could have done during the seven month period between December 9, 2005, the date of the accident, and July 22, 2006, two years before the statement of claim was issued.
[7] The motion judge found that on the day of the accident, Ms. Wyderko did not know which municipality was responsible for road maintenance because she was confused as to the location of the accident (it took place close to the border of Peel and Halton) and she did not receive a copy of the police report.
[8] The motion judge articulated the issue as follows: “Ms. Wyderko must explain why she did not seek the expertise of someone who could obtain the report before July 22, 2006, that is, two years before the issuance of her statement of claim”.
[9] Section 4 of the Limitations Act, 2002 provides that: “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”.
[10] Section 5 deals with when a claim is discovered:
(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 occurred,
(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, and
(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 omission on which the claim is based took place, unless the contrary is proved.
[11] The defendants assert that there is a positive obligation on the plaintiff to demonstrate due diligence during the presumptive two-year limitation period. She is therefore required to show what steps she took in the two years after the date of the accident, not just the steps she took in the period prior to the two years before the issuance of her claim.
[12] The defendants rely, in particular, on the decision of the Court of Appeal in Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd, [2010] ONCA 545 (C.A.). In that case, the plaintiff had a slip and fall accident on February 17, 2000. She did not commence the action against the owner until February 23, 2006 and her action against the maintenance company until September 27, 2006. The motion judge dismissed both claims on the basis that they were commenced after the applicable six-year limitation period.
[13] The appellants in Safai asserted that the time did not run until they knew the names of the owner and the maintenance company or by the exercise of due diligence could have found them out. Armstrong J.A. responded to the assertion as follows:
In my view, counsel for the appellants states the rule too broadly and the above statement from Aguonie [Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.)] does not go as far as he suggests. The proposition of the appellants, taken literally, would mean that in every motor vehicle accident when the ownership of the defendant’s vehicle was not immediately known, the limitation period would be extended until such time as a routine search of the motor vehicle register could be made. Thus, the limitation period would not commence on the date of the accident but on the date that the routine motor vehicle search revealed the owner’s name. This defies common sense and is not what the discoverability rule is intended to accomplish.
[14] The Court of Appeal upheld the dismissal of the claim against the owner, but allowed the appeal with respect to the claim against the maintenance company. Armstrong J.A. concluded that, on the date of the accident, the plaintiff was in a position to ascertain the name of the owner of the property. As a result, there was no reasonable basis upon which to invoke the discoverability rule to postpone the commencement of the limitation period.
[15] However, the plaintiff did not know on the date of the accident that the owner had contracted out the winter maintenance to a third party and there was no simple procedure to find this out. In the circumstances, there was a genuine issue for trial concerning the running of the limitation period.
[16] The defendants cite the statement of Armstrong J.A., above, as support for the proposition that the motion judge should have looked at the two year period after the accident to find out whether the plaintiff could have discovered the name of the municipality at any time during this period. If the plaintiff could have discovered the name at any time within those two years, they submit that there would be no postponement in the running of the limitation period beyond the date of the accident.
[17] I do not read the statement in Safai in that way. In my opinion, the approach of the motion judge in the case at hand is not in conflict with the approach of the Court of Appeal in Safai. The Court of Appeal’s conclusions were determined by the facts in the case, not by the application of a different test. The Court dismissed the appeal of one of the claims while allowing the appeal of the other because it was of the opinion that the plaintiff was in a position to find out the name of the owner of the property but not the name of the maintenance company on the date of the accident. In the case before me, the motion judge found that the plaintiff was not in a position to find out the name of the municipality on the date of the accident and there was a genuine issue for trial as to when she was in a position to do so.
[18] I refer to the decision in Alexis v. Toronto Police Service Board, [2009] O.J. No. 376 (S.C.J.), aff’d 2009 ONCA 847, [2009] O.J. No. 5170; 2009 ONCA 847 (C.A.) Based on the facts of that case, the motion judge concluded that the plaintiff had not rebutted the presumption that the claim was discoverable on the day that the alleged acts had occurred. The motion judge dismissed the claim as being statute-barred.
[19] The Court of Appeal dismissed the appeal. Rouleau J.A. noted that, because discoverability requires a factual analysis, “it will often be inappropriate to dispose of the issue on a motion for summary judgment.” However, in the case before the Court:
They [the facts] clearly established that, in excess of two years before the claim was issued, the appellant knew, or with reasonable diligence ought to have known, the injury, loss or damage suffered; the cause of the injury, loss or damage; the persons allegedly responsible; and, having regard to the nature of the injury, loss or damage, that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage she allegedly suffered. [Emphasis added.]
[20] This approach is no different than that used by the motion judge in the case at hand, that is: “Ms. Wyderko must explain why she did not seek the expertise of someone who could obtain the report before July 22, 2006, that is two years before the issuance of her statement of claim.” (Reasons, para. 11). This approach is also in keeping with ss. 4 and 5 of the Limitations Act, 2002, which provide that the limitation period runs from the day on which the claim is discovered, but there is a rebuttable presumption that the plaintiff had the necessary information on the date of the accident.
[21] I conclude, therefore, that the motion judge did not apply an incorrect test nor does her approach conflict with that taken in other cases.
What is required to establish due diligence?
[22] The defendants contend that the motion judge’s decision conflicts with decisions in other cases with respect to what is required to establish due diligence.
[23] The motion judge concluded that the plaintiff had established that there was a genuine issue requiring a trial as to “whether she was physically capable of putting her mind to bringing a claim and seeking legal assistance prior to July 22, 2006”, that is, two years prior to instituting her claim.
[24] The motion judge reached her conclusion based on the following:
(i) The plaintiff did not have all the relevant information, including the identities of the defendant municipalities on the date of the accident. The accident occurred close to the borders of Peel and Halton and she thought the accident had taken place in Peel not in Halton.
(ii) The plaintiff did not receive a copy of the police report at the time of the accident because she was taken to the hospital.
(iii) The plaintiff was badly injured in the accident and in severe pain. She was given medication for pain relief in the hospital. She continued to take medication for two months following the accident.
(iv) The plaintiff had various casts on her ankle until April 2006.
(v) The plaintiff took physiotherapy for about a year starting in January 2006.
(vi) In October 2006, the plaintiff discovered she could not physically manage to return to her job as a nurse. The insurer’s return to work program was stopped in January 2007 because of her inability to resume the gradual return to work program.
(vii) The plaintiff could not reasonably have discovered where the accident occurred and which municipality was responsible for road maintenance without conducting a motor vehicle accident report search.
(viii) There was no evidence before the motion judge as to how and from whom a motor vehicle accident report search would be requested, how long it would have taken or whether it would have involved a simple search of a public registry.
[25] The defendants contend that more is required in order to establish due diligence.
[26] The defendants point, for example, to the decision in Safai, in which the Court of Appeal concluded at para. 19 that the plaintiff was in a position to ascertain the name of the registered owner of the property as of the date of the accident. However, in Safai, the Court also found that the plaintiff was not in a position to know that the property owner had contracted out road maintenance to a third party on that date.
[27] The defendants point to other decisions which, they submit, conflict with the decision of the motion judge with respect to what is required to demonstrate due diligence: Soper v. Southcott (1998), 1998 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) at para. 21; Wong v. Adler (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460, at paras. 6, 7, 15 and 19; Alexis v. Toronto Police Service Board, 2009 ONCA 847, [2009] O.J. No. 5170; 2009 ONCA 847 (C.A.).
[28] “Conflicting cases” must represent a difference in principle, not merely a difference in result (Holt v. Anderson, 2005 38583 (ON SCDC), [2005] O.J. No. 4494 (Div. Ct.)). The determinations in the cases cited by the defendants are all, in my opinion, fact-specific. They do not represent a difference in principle from the case at hand; rather, they represent a difference in facts.
Conclusion
[29] I conclude that there is no reason to doubt the correctness of the motion judge’s decision nor are there conflicting decisions.
[30] Furthermore, the motion judge’s determination is fact-specific. Accordingly, it is my opinion that the decision does not involve matters of such importance that leave should be granted nor would granting leave be desirable.
[31] The motion for leave to appeal is therefore dismissed.
[32] Costs are awarded to the respondent in the amount of $3,500, inclusive of HST and disbursements.
Herman J.
Date: March 17, 2011