Pereira et al. v. Contardo

[Indexed as: Pereira v. Contardo]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Perell J.

November 27, 2014

123 O.R. (3d) 271 | 2014 ONSC 6894

Case Summary

Civil procedure — Summary judgment — Defendant moving for summary judgment dismissing personal injury action as statute-barred — Defendant placing plaintiff's discovery evidence and medical history into evidentiary record — Plaintiff filing no responding material — Plaintiff entitled to rely on evidence filed by defendant and not failing to put his best foot forward — Motion judge not failing to apply rules 20.02(2) and 39.04 in dismissing defendant's motion — Leave to appeal denied — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.02(2), 39.04.

Limitations — Discoverability — Plaintiff aggressively pursuing medical treatment for pain after motor vehicle accident but not obtaining expert report until his doctor told him that his pain might be permanent — Expert report indicating that plaintiff suffered from chronic pain that might meet threshold in s. 267.5(5) of Insurance Act — Plaintiff commencing personal injury action more than four years after accident — Motion judge dismissing defendant's motion for summary judgment dismissing action as statute-barred — Motion judge finding that plaintiff did not fail to exercise reasonable diligence in waiting three and a half years to obtain medical report and that action was commenced within two years of discovery of claim — No reason existing to doubt correctness of motion judge's decision — Leave to appeal denied — Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5).

The plaintiff was injured in a motor vehicle accident in December 2008. He complained persistently of pain, saw his family doctor regularly and sought treatment from a chiropractor. He retained counsel within two months of the accident and applied for statutory accident benefits. In 2012, his doctor referred him to pain specialists who diagnosed him with chronic pain that might meet the threshold in s. 267.5(5) of the Insurance Act. The plaintiff commenced a personal injury action in March 2013. The defendant brought a motion for summary judgment dismissing the action as statute-barred. He placed the plaintiff's discovery evidence and medical history into the evidentiary record. The plaintiff filed no responding material. The motion was dismissed. The motion judge found that it was reasonable in the circumstances for the plaintiff to delay three and a half years before arranging to obtain expert reports and that the action was commenced within two years of the discovery of the claim. The defendant moved for leave to appeal.

Held, the motion should be dismissed.

There was no good reason to doubt the correctness of the motion judge's order because he failed to apply rule 20.02(2) and rule 39.04, which obliged the plaintiff to put his best foot forward to support his argument that the discoverability principle allowed the claim to go forward. The plaintiff was entitled to rely on the evidence adduced by the defendant, and did not fail to put his best foot forward by failing to file responding material. [page272]

There were no conflicting decisions with respect to the applicability of the discoverability principle, and it was not desirable that leave be granted to appeal what was essentially a fact-based determination. There was no reason to doubt the correctness of the motion judge's decision that the plaintiff had rebutted the presumption in s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B that he knew he had a claim on the day of the accident.

If a threshold claim is timely, it is just that all claims go forward. The plaintiff's claims for income loss and other economic claims were not statute-barred.

Chenderovitch v. John Doe, 2004 20029 (ON CA), [2004] O.J. No. 681, 183 O.A.C. 284, 8 C.C.L.I. (4th) 1, 44 C.P.C. (5th) 243, 48 M.V.R. (4th) 190, 129 A.C.W.S. (3d) 596 (C.A.); Liu v. Silver, [2010] O.J. No. 4636, 2010 ONCA 731, affg (2010), 101 O.R. (3d) 702, [2010] O.J. No. 1608, 2010 ONSC 2218 (S.C.J.); Ng v. Beline (2008), 2008 51931 (ON SC), 95 O.R. (3d) 71, [2008] O.J. No. 5686, 75 M.V.R. (5th) 166, 69 C.C.L.I. (4th) 83, 169 A.C.W.S. (3d) 1139 (S.C.J.) [Leave to appeal refused 2009 31601 (ON SCDC), [2009] O.J. No. 2557, 75 C.C.L.I. (4th) 231, 86 M.V.R. (5th) 204, 178 A.C.W.S. (3d) 457 (Div. Ct.)]; Yelda v. Vu, [2014] O.J. No. 2168, 2014 ONCA 353, 64 M.V.R. (6th) 177, 240 A.C.W.S. (3d) 465, affg [2013] O.J. No. 3683, 2013 ONSC 4973, [2013] I.L.R. I-5484 (S.C.J.), consd

Other cases referred to

Ash v. Lloyd's Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282, [1992] O.J. No. 894 (Gen. Div.); Bains v. Wolski (2009), 2009 10984 (ON SC), 95 O.R. (3d) 601, [2009] O.J. No. 1054, 72 C.C.L.I. (4th) 288 (S.C.J.); Benincasa v. Agostino, [2008] O.J. No. 4172, 170 A.C.W.S. (3d) 37 (S.C.J.); Brownhall v. Canada (Minister of National Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672, 146 A.C.W.S. (3d) 10 (S.C.J.); CIBC Mortgages Inc. v. Vieira, [2013] O.J. No. 4961, 2013 ONSC 6789 (S.C.J.); Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652, 55 O.A.C. 316, 6 C.P.C. (3d) 271, 32 A.C.W.S. (3d) 1026 (Div. Ct.); Friend v. Watters, [2012] O.J. No. 188, 2012 ONSC 435, 93 C.C.L.T. (3d) 71 (S.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525, 30 O.A.C. 53, 28 C.P.C. (2d) 294, 10 A.C.W.S. (3d) 13 (Div. Ct.); John Doe v. Ontario, [2007] O.J. No. 3889, 162 C.R.R. (2d) 186, 161 A.C.W.S. (3d) 236 (S.C.J.); Judson v. Mitchele (2011), 108 O.R. (3d) 129, [2011] O.J. No. 4914, 2011 ONSC 6004 (S.C.J.); Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 2000 16845 (ON CA), 50 O.R. (3d) 97, [2000] O.J. No. 3261, 190 D.L.R. (4th) 340, 136 O.A.C. 71, 50 C.P.C. (4th) 244, 99 A.C.W.S. (3d) 422 (C.A.); Lawless v. Anderson, [2010] O.J. No. 2017, 2010 ONSC 2723 (S.C.J.); Minnema v. Archer Daniels Midland Co., [2000] O.J. No. 1685, 142 O.A.C. 17, 47 C.P.C. (4th) 344, 97 A.C.W.S. (3d) 26 (S.C.J.); Muirhead v. Coulas, [2011] O.J. No. 4908, 2011 ONSC 6281 (S.C.J.); Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 2003 SCC 54, 231 D.L.R. (4th) 385, 310 N.R. 22, J.E. 2003-1843, 217 N.S.R. (2d) 301, 4 Admin. L.R. (4th) 1, 28 C.C.E.L. (3d) 1, 110 C.R.R. (2d) 233, 125 A.C.W.S. (3d) 542; Oberlander v. Canada (Attorney General), [2004] O.J. No. 1574, [2004] O.T.C. 332, 130 A.C.W.S. (3d) 683 (S.C.J.); Peart v. Peel (Regional Municipality) Police Services Board, [2003] O.J. No. 2669, [2003] O.T.C. 599, 126 A.C.W.S. (3d) 46 (S.C.J.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380, 13 C.P.C. (2d) 192, 2 A.C.W.S. (3d) 104 (H.C.J.); Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (Div. Ct.) [page273]

Statutes referred to

Family Law Act, R.S.O. 1990, c. F.3 [as am.]

Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5)

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5, (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.02, (2), 31.11, 39.04, (1), (2), 62.02(4), (a), (b)

MOTION for leave to appeal an order dismissing a motion for summary judgment.

Martin Zatovkanuk, for plaintiffs.

Harry P. Brown and Philip Ghosh, for defendant.

PERELL J.: —

A. Introduction

[1] The defendant, Giani Contardo, moves for leave to appeal, to the Divisional Court, Justice Belobaba's order dated May 12, 2014.

[2] In his order, Justice Belobaba dismissed Mr. Contardo's motion for summary judgment, and in his endorsement, he concluded that the plaintiff Jose Pereira, who was injured in a car accident, did not fail to exercise reasonable diligence in discovering that his chronic pain claim might meet the seriousness threshold for a tort claim established by s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.

[3] Mr. Contardo submits that Justice Belobaba made three errors that would justify granting leave to appeal. The first submitted error is procedural and evidentiary and is the failure to apply rules 20.02 and 39.04(2) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], which govern the use of evidence on a summary judgment motion.

[4] The second submitted error is substantive and is said to be the failure to properly apply the law about the discoverability of a claim. It is submitted that Justice Belobaba erred by failing to recognize that where chronic pain is manifest and diagnosable after six months of a motor vehicle accident, then a reasonably diligent plaintiff ought to have discovered his or her claim, and, accordingly, Mr. Pereira has not rebutted the presumption that the limitation period began to run from the date of the accident.

[5] In other words, Mr. Contardo submits that Mr. Pereira, assisted by counsel, could and should have obtained a definitive medical report about his persisting pain at any time more than six months after the accident, and had Mr. Pereira done so, he [page274] would have been diagnosed with the same chronic pain injury caused by the accident upon which he advanced his action four years later.

[6] Mr. Contardo submits that applying the presumption that the limitation period begins to run at the date of the accident and the objective test for the commencement of a limitation period, Mr. Pereira failed to commence his action within two years after he could and should have known about his chronic pain diagnosis. Mr. Contardo submits that the conclusion in the immediate case that the presumption had been rebutted conflicts with Liu v. Silver (2010), 101 O.R. (3d) 702, [2010] O.J. No. 1608, 2010 ONSC 2218 (S.C.J.), affd [2010] O.J. No. 4636, 2010 ONCA 731, a medical malpractice claim, and Yelda v. Vu, [2013] O.J. No. 3683, 2013 ONSC 4973 (S.C.J.), affd [2014] O.J. No. 2168, 2014 ONCA 353, a motor vehicle accident claim, both of which cases recognize a duty on plaintiff's counsel with respect to obtaining medical reports within the two-year limitation period.

[7] The third submitted error is a failure to apply the law from the Court of Appeal's decision in Chenderovitch v. John Doe, 2004 20029 (ON CA), [2004] O.J. No. 681, 183 O.A.C. 284 (C.A.). Mr. Contardo's argument is that Chenderovitch establishes that a motor vehicle negligence claim gives rises to separate causes of action, some of which are subject to the seriousness threshold established by s. 267.5(5) of the Insurance Act and some of which that are not subject to any seriousness threshold. Thus, Mr. Contardo submits that Mr. Pereira's claims for income and other economic losses should have been treated separately from his chronic pain claim and these claims should have been dismissed on the basis that they were discovered on the date of the accident.

[8] For the reasons that follow, I dismiss the motion for leave to appeal.

B. The Test for Leave to Appeal

[9] The test for leave to appeal from the interlocutory orders of a motion judge to the Divisional Court is set out in rule 62.02(4) of the Rules of Civil Procedure, which states:

62.02(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [page275]

[10] In order for leave to be granted under rule 62.02(4)(a), the moving party must show both (a) a conflicting decision; and also (b) the desirability of leave to appeal being granted. A conflicting decision is one in which different legal principles are chosen to decide a comparable legal problem or to guide the exercise of the court's discretion: Benincasa v. Agostino, [2008] O.J. No. 4172, 170 A.C.W.S. (3d) 37 (S.C.J.), at para. 12; Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652 (Div. Ct.).

[11] If leave to appeal is to be granted on the grounds of conflicting decisions, the court must be satisfied not only that there is a conflicting decision, but also that it is desirable that leave to appeal be granted having regard to such factors as what is at stake in the order being challenged, the likelihood of the appeal being successful, the sufficiency of the record for the purposes of deciding the issues on the appeal, and the problems of expense and delay: Minnema v. Archer Daniels Midland Co., [2000] O.J. No. 1685, 142 O.A.C. 17 (S.C.J.), at paras. 34-42.

[12] In order for leave to be granted under rule 62.02(4)(b), the moving party must show both (a) good reason to doubt the correctness of the order; and also (b) a matter of general importance. In order to show that that there is good reason to doubt the correctness of the order, the moving party need not show that the order is wrong or probably wrong, but rather that the soundness of the order is open to very serious debate: Ash v. Lloyd's Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282, [1992] O.J. No. 894 (Gen. Div.), at pp. 284-85 O.R.; Oberlander v. Canada (Attorney General), [2004] O.J. No. 1574, [2004] O.T.C. 332 (S.C.J.), at paras. 8-9; Brownhall v. Canada (Minister of National Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672 (S.C.J.), at para. 30; Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (Div. Ct.); Judson v. Mitchele (2011), 108 O.R. (3d) 129, [2011] O.J. No. 4914, 2011 ONSC 6004 (S.C.J.).

[13] In order to show that a matter is of general importance, the moving party must show that the matter is of importance to the public or to the development of the law or to the administration of justice and that the importance of the order transcends the importance of the matter to the particular parties: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525 (Div. Ct.), at p. 112 O.R.; Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380 (H.C.J.), at p. 575 O.R.; Brownhall v. Canada (Minster of National Defence), supra, at para. 29. [page276]

C. Factual and Procedural Background

[14] On December 21, 2008, Mr. Pereira and Mr. Contardo were involved in an automobile accident.

[15] As a result of the accident, Mr. Pereira suffered headaches, a left shoulder injury, a lower left back injury and a left leg injury. He sustained soft tissue injuries to his neck, shoulders and back.

[16] Within two months, Mr. Pereira had retained legal counsel, and in March 2009, applied for statutory accident benefits.

[17] With the assistance of counsel, Mr. Pereira applied for statutory accident benefits by way of an application for accident benefits form (OCF-1), dated March 30, 2009. An activities of normal life (OCF-12) form dated March 30, 2009 stated: "I can't sleep due to the pain . . . I don't have patience and it is effecting [sic] my home life and my job . . . I had to hire an extra worker to perform the duties that I am not able to do at this time."

[18] On November 26, 2009, 11 months after the accident, Mr. Pereira was diagnosed by chiropractor Michael Moreira with chronic post-traumatic headaches. Chiropractor Moreira completed Mr. Pereira's disability certificate form (OCF-3) and made arrangements for an MRI, EMG and other assessments.

[19] From the date of the accident, Mr. Pereira consistently complained of soft tissue injuries and chronic pain to his family physician, Dr. Joana Goncalves, whom he visited on January 22, 2009, February 17, 2009 and December 14, 2009.

[20] At the request of Mr. Pereira's then lawyer, Wendy Sokoloff, on August 26, 2010 occupational therapist Sophie Bielawski performed an in-home assessment. She prepared a report that indicated that Mr. Pereira's son had taken over the running of Mr. Pereira's business and that Mr. Pereira required full-time attendant care. The report requested that medical assessments be obtained including a neuro-psychological assessment, driving assessment, orthopaedic assessment, neurology assessment, physiatry assessment, and an ophthalmology assessment as well as referrals to a psychologist, pain management program and marital/family therapy. The report indicated that the attendant care needs of Mr. Pereira were $6,816.43 per month, which would be in the category of catastrophic.

[21] Mr. Pereira's pain from his injuries persisted from the date of the accident and was a constant source of complaint to his treating practitioners, medical assessors and accident benefits insurer, and by December 2010, Mr. Pereira was concerned that his pain would never go away. [page277]

[22] In 2012, Mr. Pereira was referred to see pain specialist Dr. Howard Jacobs and orthopaedic surgeon Dr. Khal Efala. These experts each diagnosed him with chronic pain.

[23] The multidisciplinary and musculoskeletal chronic pain assessment of Dr. Efala and DC Owliaei dated October 17, 2012 notes that Mr. Pereira "has been experiencing significant pain that has progressed from an acute pain state to a chronic pain state/syndrome".

[24] Mr. Pereira's statement of claim was issued on March 28, 2013. The plaintiff Laura Da Mota, who was not involved in the accident, brings her derivative claim pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[25] The issuance of the statement of claim occurred more than four years after the accident, and outside of the two-year limitation period set by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24 Sch. B.

[26] In para. 7 of his statement of claim, Mr. Pereira pleads that he could not have reasonably discovered through the exercise of due diligence that his impairments would be permanent until he obtained Dr. Jacobs' report.

[27] The statement of defence was filed May 15, 2013.

[28] The defendant's examination for discovery was completed on May 29, 2013.

[29] The examination of Mr. Pereira began on May 29, 2013, but has not been completed.

[30] On July 12, 2013, with a new lawyer of record, Mr. Pereira issued a statement of claim alleging negligence against Wendy Sokoloff and Wendy Sokoloff Professional Corporation for failure to issue a statement of claim in the immediate action within the two-year limitation period.

[31] After the examination for discoveries, Mr. Contardo brought a motion for a summary judgment pursuant to Rule 20 to dismiss Mr. Pereira's action on the ground that it was statute-barred.

[32] In his motion record for the summary judgment motion, Mr. Contardo included, among other things, (a) the discovery transcript of Mr. Pereira; (b) Mr. Pereira's application for accident benefits dated March 30, 2009; (c) the clinical notes and records of Dr. Goncalves from January 2005 to October 2012; (d) the activities of normal life (OCF-12) form dated March 30, 2009; (e) the disability certificate (OCF-3) dated November 26, 2009; (f) the home occupational therapy assessment report dated October 22, 2010; (g) the medical-legal report of Dr. Howard Jacobs dated October 22, 2012; and (h) the multidisciplinary and [page278] musculoskeletal chronic pain assessment of Dr. Efala and DC Owliaei dated October 17, 2012.

[33] Mr. Pereira filed no responding motion material.

[34] Justice Belobaba dismissed the summary judgment motion. He concluded that Mr. Pereira had acted reasonably and received medical treatment in a timely fashion and it was reasonable to delay three and a half years before arranging to obtain the reports about the chronic pain.

[35] I set out Justice Belobaba's endorsement in full:

Motion by Defendant for summary judgment dismissing the action because statute-barred by Limitations Act -- Motor vehicle accident December, 2008 -- Claim issued more than four years later in March, 2013 -- JP had continuing and constant pain following accident -- but JP says he only realized he had permanent and serious Chronic Pain that could clear the "threshold" under s. 267.5(5) of the Insurance Act when he received the two medical opinions from Dr. Efala and Dr. Jacobs in October, 2012 -- JP therefore argues that the action is not statute-barred because it was commenced within two years of discoverability -- D says JP should have known by the middle of 2009 that he had chronic pain (using the "six months" definition) and that he was not reasonably diligent in getting the two medical opinions.

Analysis:

It is one thing to know you have constant pain. It is quite another thing to be told that the pain has been medically diagnosed as Chronic Pain that could clear the "permanent and serious" Threshold under the Insurance Act. As Justice Langdon noted in Ionnidis v. Hawkings (a case relief on by the Defendant):

In practical terms, the question is not whether the plaintiff believes that her injury meets the criteria but whether there is a sufficient body of evidence available to be placed before a judge that, in counsel's opinion, has a reasonable chance of persuading a judge, on the balance of probabilities that the injury qualifies. When such a body of material has been accumulated, then and only then should the limitation begin to run.

Both sides [agree] that the issue here is reasonable diligence. To track the language in Yelda v. Vu, the question is whether JP exercised due diligence in investigating the possibility that he had a pain claim that could clear the Threshold. It is common knowledge that pain is highly subjective and one's response to pain or capacity to handle pain depends very much on the individual. And most of us, in JP's position, at least in the first year or so, would have continued to hope that the pain would diminish or disappear.

Did JP fail to exercise reasonable diligence by waiting three and a half years, until mid-2012 to have the medical assessments done? In my view, based on the material before me, JP did not act unreasonably. I say this for the following reasons:

He sought out medical care immediately after the accident and pursued it aggressively; he saw his GP regularly over calendar year 2009 and he began a rigorous schedule of chiropractic visits, averaging two or three times a week, over calendar years 2009, 2010 and 2011 (these may well be continuing -- the evidence ends at 2011); [page279]

At no time did any of these doctors (and JP referred to both his GP and the chiropractors as "doctors") suggest that his pain could well be permanent;

It is true that JP's occupational therapist, who conducted a home assessment in 2010, noted in her report that JP "would benefit" from having some medical assessments -- but again, nothing about the possibility that the pain could well be permanent;

The first time that any of his doctors told JP that his pain could well be permanent and that he "might never get better" was when his GP told him this "around 2012 or so" -- most likely in the April to July, 2012 time period (based on the GP's office notes);

The medical assessments with Dr. Efala and Dr. Jacobs were arranged shortly thereafter and the two medical opinions were completed in October, 2012;

The tort action herein was commenced in March, 2013, well within the two-year limitation period even if one takes April, 2012 as the discoverability date when JP learned from his GP that he "might never get better."

In sum, I am satisfied that acting reasonably, JP undertook the medical assessments in a timely fashion -- in particular within months of being told by one of his doctors (for the first time) in 2012 that he "might never get better." In a chronic pain case, (which for almost everyone will have elements of hope and despair), and particularly on the facts herein, a delay of three and half years from date of accident to date of arranging expert medical assessments, is not unreasonable.

The defendant's motion for summary judgment based on the limitations period does not succeed.

D. Discussion and Analysis

1. The alleged summary judgment motion evidentiary errors

[36] Mr. Contardo submits that there is good reason to doubt the correctness of Justice Belobaba's decision because of a failure to apply rules 20.02 and 39.04(2).

[37] These rules, along with the related rules 39.04(1) and 31.11, state:

Evidence on Motion

20.02(1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. [page280]

Adverse Party's Examination

39.04(1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the adverse party, and rule 31.11 (use of discovery at trial) applies with necessary modifications.

Party's Examination

(2) On the hearing of a motion, a party may not use in evidence the party's own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the other parties consent.

Reading in Examination of Party

31.11(1) At the trial of an action, a party may read into evidence as part of the party's own case against an adverse party any part of the evidence given on the examination for discovery of,

(a) the adverse party; or

(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,

if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.

Impeachment

(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.

Qualifying Answers

(3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.

[38] Mr. Contardo submits that there is good reason to doubt the correctness of Justice Belobaba's order dismissing the motion for summary judgment because he failed to apply rule 20.02(2) and rule 39.04, which obliged Mr. Pereira to put his best foot forward to support his argument that the discoverability principle allowed the claim to go forward.

[39] Mr. Contardo submits that Mr. Pereira did not provide evidence on the motion and he breached rule 20.02(2) by not setting out in affidavit material or other evidence, specific facts showing that there was a genuine issue requiring a trial and, [page281] therefore, an adverse inference ought to have been drawn against him.

[40] In my opinion, there is no merit to Mr. Contardo's submission about a misuse of evidence or of an absence of evidence from Mr. Pereira.

[41] It was Mr. Contardo who placed Mr. Pereira's discovery evidence and medical history and procedural history into the evidentiary record, and Mr. Pereira was entitled to rely on and attempt to meet the evidentiary onus on him from the evidence that was before the court.

[42] As Justice David Brown notes in Lawless v. Anderson, [2010] O.J. No. 2017, 2010 ONSC 2723 (S.C.J.), at para. 12, when a party on a motion places his opponent's discovery testimony into evidence, the evidence is available to be used by either party. See, also, Peart v. Peel (Regional Municipality) Police Services Board, [2003] O.J. No. 2669, [2003] O.T.C. 599 (S.C.J.), at para. 236; at Friend v. Watters, [2012] O.J. No. 188, 2012 ONSC 435 (S.C.J.), at paras. 42-49.

[43] A responding party to a motion for summary judgment does not automatically lose the motion because of a failure to deliver an affidavit or other evidence, and there is no automatic adverse inference for failing to deliver an affidavit or other evidence on a motion. A responding party remains entitled to rely on the evidence put before the court by the moving party.

[44] Justice Belobaba was not obliged to close his ears to Mr. Pereira's arguments about the evidence put before the court by Mr. Contardo, and Mr. Pereira was entitled to rely on his own discovery evidence when it was placed before the court by Mr. Contardo.

[45] The purpose of rule 39.04(2) is to prevent a party from relying on his or her discovery evidence when the opposing party has not submitted discovery evidence under rule 39.04(1).

[46] The policy rationale behind rule 39.04 is that in the context of a motion, it is appropriate for a moving party to use a discovery transcript in the same way as a plaintiff might use it at a trial. The moving party, like a plaintiff at trial, may put in his or her opponent's discovery testimony into evidence, but once it becomes part of the record, the responding party, like the defendant at trial, can ask that qualifying answers also be part of the evidentiary record and, in any event, once the discovery evidence is in the record for the motion, it may be used by either party.

[47] What is not permitted on a motion is for a party to attempt to avoid being cross-examined by unilaterally tendering his or her discovery testimony. See Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 2000 16845 (ON CA), 50 O.R. (3d) 97, [2000] O.J. No. 3261 (C.A.), at para. 20. [page282] It may be noted that rule 39.04(2) is not offended when the party examined for discovery incorporates his or her discovery evidence into an affidavit upon which he or she may be cross-examined: John Doe v. Ontario, [2007] O.J. No. 3889, 162 C.R.R. (2d) 186 (S.C.J.); CIBC Mortgages Inc. v. Vieira, [2013] O.J. No. 4961, 2013 ONSC 6789 (S.C.J.), at paras. 21-22.

[48] There is no good reason to doubt the correctness of Justice Belobaba's order dismissing the motion for summary judgment based on the argument that he failed to apply rule 20.02(2) and rule 39.04.

2. The alleged threshold and limitation period errors

(a) Mr. Contardo's argument

[49] In the case at bar, the motor vehicle accident occurred on December 21, 2008, but Mr. Pereira's statement of claim was not issued until March 28, 2013, four years and three months after the accident, and, thus, pursuant to the reverse onus of s. 5(2) of the Limitations Act, 2002, the claim is presumptively beyond the two-year limitation period and is statute-barred.

[50] Sections 4 and 5 of the Limitations Act, 2002 state:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

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 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).

Presumption

(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. [page283]

[51] In Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 2003 SCC 54, at para. 1, the Supreme Court defined "chronic care" as "pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques". Mr. Contardo submits that since Mr. Pereira suffered pain from his injuries from the accident and since that pain persisted for more than six months beyond the normal healing time or was disproportionate to the nature of the injuries suffered, he could have been diagnosed with chronic pain within two years of the accident. Mr. Contardo submits that Mr. Pereira, assisted by counsel, could have obtained a report diagnosing chronic pain at any time more than six months after the accident, and that they should have done so before the expiry of the two-year presumptive limitation period. In other words, Mr. Contardo submits that applying the objective test for the commencement of a limitation period, Mr. Pereira ought to have commenced his action within two years after he could have known about his chronic pain diagnosis.

[52] Mr. Contardo submits that Justice Belobaba's decision conflicts with Justice B.A. Allen's decision in Liu v. Silver, supra, Justice Arrell's decision in Yelda v. Vu, supra, and Justice Mackinnon's decision in Muirhead v. Coulas, [2011] O.J. No. 4908, 2011 ONSC 6281 (S.C.J.), which is a medical malpractice case.

[53] Mr. Contardo submits that Justice Belobaba failed to apply the reverse onus of s. 5(2) of the Limitations Act, 2002 and failed to consider whether Mr. Pereira's former lawyer exercised the standard of reasonable diligence that would have led to the discovery of a cause of action within the two-year limitation period. Mr. Contardo submits that if the reverse onus had been properly applied, then it is likely that the court would have considered that Mr. Pereira's injuries were permanent and serious within the two years post-accident or, in the alternative, that plaintiff's counsel should have obtained the appropriate reports to determine that issue within the two years, as recommended by the plaintiff's own occupational therapist.

(b) Application of the reverse onus triggering discoverability

[54] In Liu v. Silver, which was a medical malpractice not a motor vehicle accident case, at paras. 9 and 10 of her decision, Justice Allen described what state of knowledge triggers the commencement of the running of the limitation period; she stated: [page284]

Section 5(1)(a) contains a subjective test that speaks to the plaintiff's actual knowledge of the types of facts enumerated under that provision. The second test under s. 5(1)(b) is objective and requires the plaintiff to be measured according to the standard of the steps a reasonable person would take to obtain the knowledge. Section 5(2) extends the time for the triggering of the limitation period until the point at which the party making the claim discovers they have a cause of action. Such a determination is fact driven, to be decided based on the particular circumstances of each case. [Gaudet et al. v. Levy et al., 1984 2047 (ON SC), [1984] O.J. No. 3312 577, at p. 582 (H.C.J.)].

Section 5(2) places the burden on the plaintiff to rebut the presumption they knew they had a claim on the day of the incident. Courts have held the plaintiff has the evidentiary burden to prove the claim was issued within the limitation period. [Findlay v. Holmes, 1998 5488 (ON CA), [1998] O.J. No. 2796 (C.A.) at para. 25; McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076 at para. 37 (C.A.)]. The limitation period is not activated when [the] plaintiff knows the legal significance of the facts of their case but rather when the plaintiff's lawyer believes a meritorious claim exists.

[55] As Justice Allen notes, s. 5(2) of the Limitations Act extends the time for the triggering of the limitation period until the point at which the party making the claim objectively discovers they have a cause of action. In the context of motor vehicle accident claims, the analysis of when a claim ought to be discovered is significantly complicated by the factor that the requisite knowledge includes knowledge that the cause of action satisfies a statutory threshold of seriousness imposed by the Insurance Act. Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31 establishes that there is no cause of action until the injury meets a statutory threshold of seriousness. In Peixeiro, at para. 30, the court stated that the cause of action does not exist until sufficient severity of injury exists. The limitation period does not begin to run until it is reasonably discoverable that the injury meets the threshold.

[56] Mr. Contardo submits that in the circumstances of the case of bar and pursuant to s. 5(1) and (2) of the Limitations Act, Mr. Pereira is presumed to objectively know that he had a chronic pain claim that would satisfy the statutory threshold of seriousness and, therefore, since he did not rebut the presumption, he ought to have commenced his action within two and a half years of the date of the accident and not four years and three months after the accident.

[57] Underlying Mr. Contardo's submission is the premise that Mr. Pereira's lawyer knew or ought to have known that the chronic pain claim would satisfy the seriousness threshold around the time of occupational therapist Sophie Bielawski's report.

[58] As Justice Allen noted in Liu v. Silver, the determination of what a reasonable person would be taken to know about his or her claim, which in the immediate case would have to exceed [page285] a seriousness threshold, is fact-driven, to be decided based on the particular circumstances of each case. It is a question of fact whether the plaintiff, assisted by a lawyer, made a reasonably diligent investigation and then if the investigation was reasonably diligent whether the investigation had reached the point where a reasonably prudent lawyer would and should have determined that there was a claim that met the seriousness threshold of the Insurance Act. Yelda v. Vu, supra, is an example where the fact-driven analysis led to the conclusion in a motor vehicle accident claim that the plaintiff had ample information and ought to have commenced an action long before she did so with the result that her action was statute-barred.

[59] In the circumstances of the immediate case, Mr. Contardo's submission that there ought to have been objective knowledge that the threshold had been exceeded is diffident and somewhat coy because he is reserving the right to challenge that the threshold has been satisfied and there is no evidence and only argument about whether Mr. Pereira's lawyer failed to meet the standard of a reasonable competent lawyer and ought to have commenced an action based on the information that was available.

[60] The evidence that was tendered on the motion established that medical inquiries were made and apparently Mr. Pereira's experienced lawyer did not feel confident enough about the chronic pain claim until after the medical assessments of Dr. Efala and Dr. Jacobs, which assessments Mr. Contardo's equally experienced lawyer has reserved the right to challenge as not demonstrating a serious enough claim to satisfy the threshold. Justice Belobaba, however, was satisfied based on the evidence that the claim was timely and ought not to have been brought earlier.

[61] On the summary judgment motion, Justice Belobaba weighed the evidence and referred to Yelda v. Vu, which is consistent with Liu v. Silver, and concluded that Mr. Pereira had exercised due diligence and that, accordingly, Mr. Pereira had rebutted the presumption that he knew he had a serious enough claim from the date of the accident so as to trigger the running of the limitation period.

[62] There is nothing here about the triggering of limitation periods that indicates that Justice Beloboba was departing from established jurisprudence. Liu v. Silva, supra, Yelda v. Vu, supra, and Muirhead v. Coulas, supra, are all fact-driven applications of the principles that courts use when it is not immediately apparent whether the plaintiff has sufficient information to know that there is a claim to pursue. They are not conflicting decisions by another court, and it is not desirable that leave to [page286] appeal be granted to what is essentially a fact-based determination. There is nothing here that causes me to doubt the correctness of the order or to conclude that the proposed appeal involves matters of such importance that leave to appeal should be granted.

3. The Chenderovitch v. John Doe principle

[63] Mr. Contardo submitted that the decision of the Court of Appeal in Chenderovitch v. John Doe, supra, is authority that in motor vehicle personal injury claims there are two limitation periods: one for claims involving the threshold of seriousness and one for claims not subject to the threshold. Therefore, it is submitted that even if Mr. Pereira's chronic pain claim is not statute-barred, his income loss and other economic claims are statute-barred because the presumption would be that the limitation period for those claims would begin to run from the date of the accident.

[64] There are no decided cases that support Mr. Contardo's proposition but there are cases that reject it, including Justice Milanetti's decision in Bains v. Wolski (2009), 2009 10984 (ON SC), 95 O.R. (3d) 601, [2009] O.J. No. 1054 (S.C.J.) and my own decision in Ng v. Beline (2008), 2008 51931 (ON SC), 95 O.R. (3d) 71, [2008] O.J. No. 5686 (S.C.J.), for which leave to appeal to the Divisional Court was denied 2009 31601 (ON SCDC), [2009] O.J. No. 2557, 75 C.C.L.I. (4th) 231 (Div. Ct.).

[65] In Ng v. Beline, I accepted that an effect of the Chenderovitch judgment is that it recognized that there are separate causes of action for pecuniary and non-pecuniary losses under the Insurance Act scheme for automobile accident claims. However, in my opinion, it did not follow from the Chenderovitch judgment that each cause of action receives an independent limitation period analysis. I held that if the threshold claim is not timely, then all the claims should be statute-barred and, conversely, if the threshold claim is timely, then it is just that all claims should go forward.

E. Conclusion

[66] For the above reasons, I dismiss Mr. Contardo's motion for leave to appeal.

[67] If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with Mr. Pereira's submissions within 20 days of the release of these reasons for decision followed by Mr. Contardo's submissions within a further 20 days.

Motion dismissed.

End of Document