Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240209 DOCKET: COA-23-CV-0019

Hourigan, Roberts and Coroza JJ.A.

BETWEEN

Siavash Sanei Plaintiff/Responding Party (Appellant)

and

Marcelaine Debarros Defendant/Moving Party (Respondent)

Counsel: Martin P. Forget and Suhasha Hewagama, for the appellant Dennis Ong, John Lea and Jordan Conway, for the respondent

Heard: November 8, 2023

On appeal from the judgment of Justice Hugh K. O’Connell of the Superior Court of Justice, dated November 30, 2022, with reasons reported at 2022 ONSC 6758.

Roberts J.A.:

Overview

[1] The appellant appeals the dismissal of his personal injury action. The summary judgment motion judge found that the appellant’s action was statute-barred because it was commenced beyond the applicable two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] At the conclusion of the appellant’s submissions, the panel dismissed the appeal without calling on the respondent, with reasons to follow. These are those reasons.

Background

[3] On February 2, 2013, the appellant was injured in a motor vehicle accident. On March 2, 2016, the appellant commenced an action against the respondent. In his statement of claim, the appellant pleads that the respondent caused the accident and claims several hundred thousand dollars in damages for the “permanent and serious injuries” that he alleges were caused by the accident and that constitute a serious and permanent impairment of his physical and psychological functions. The appellant also pleads that he did not discover “until recently” that his injuries would meet the threshold in the Insurance Act, R.S.O. 1990, c. I.8.

[4] The respondent defended the action, denying responsibility for the accident and for the appellant’s injuries and pleading that the appellant’s action was statute-barred. The respondent subsequently brought a motion for summary judgment to dismiss the appellant’s action as statute-barred.

[5] The motion judge allowed the respondent’s motion. He concluded that, based on the medical evidence and the appellant’s own evidence of his injuries since the accident, which he accepted, the appellant “had serious and permanent injuries discoverable well within the two-year limitation period.” Consequently, he dismissed the claim, finding that “[t]here is no genuine issue requiring a trial, given that the claim was discoverable within the two-year time period, and as such the action is barred by the Limitations Act.”

Issues

[6] The appellant submits that the motion judge made several reversible errors and asks that this court set aside his dismissal of the action, declare that the action was commenced in time, or, in the alternative, remit the limitations defence to trial.

[7] The appellant’s principal argument on this appeal is that the motion judge erred by failing to make a specific finding as to when the appellant discovered, or reasonably ought to have discovered his injuries and, in consequence, when the limitation period started to run. In the appellant’s submission, the motion judge’s conclusion that the claim was discoverable within two years of the accident is distinct from the necessary determination of whether the action was commenced within two years of discovery.

[8] Relatedly, the appellant argues that there was no evidence demonstrating that the appellant discovered that he had a serious and permanent impairment prior to March 2, 2014, and, in any event, the motion judge applied the wrong threshold test, characterizing the appellant’s injuries as “serious and permanent injuries” rather than considering whether they constituted “serious and permanent impairment”.

[9] For the reasons that follow, I am not persuaded that appellate intervention is required. I start my analysis of the appellant’s submissions with reference to the governing principles and relevant statutory provisions and then consider the motion judge’s reasons in light of that context and the evidence before him.

Analysis

(a) General principles and statutory provisions

[10] 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 meet the statutory deductible and threshold of serious and permanent impairment under s. 267.5 of the Insurance Act: Everding v. Skrijel, 2010 ONCA 437, 100 O.R. (3d) 641, at paras. 9-11; Fennell v. Deol, 2016 ONCA 249, at para. 28.

[11] Section 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 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.

[12] 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: Fennell, at para. 26. Where this presumption is rebutted, the limitation period begins to run on the earlier of the two dates contemplated in s. 5(1)(a) and (b): Fennell, at paras. 20-21. Unlike s. 5(2), s. 5(1)(b) imports the “reasonable person” standard and requires consideration of whether the claimant exercised due diligence: Fennell, at paras. 22-24.

[13] As this court instructed in Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 30, in considering reasonable discoverability of a claim, “[t]he court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined.” Moreover, it is insufficient for the court to say that the claim “was discoverable ‘before the expiry of the limitation period’, without explaining why”: Morrison, at para. 30.

[14] A new medical imaging result or a specific diagnosis can constitute evidence necessary to support a claim for serious and permanent impairment, especially where the impairment worsens over time or where the initial prognosis was that symptoms would improve: see e.g., Peixeiro v. Haberman, [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. However, when there is no evidence of a change in the plaintiff’s condition, delayed discovery of a permanent impairment may instead be because they failed to make reasonable inquiries: Yasmin v. Alexander, 2016 ONCA 165, at para. 12.

(b) Principles and provisions applied

[15] The appellant pleaded in his statement of claim that his serious and permanent impairment arising from the accident met the statutory threshold under the Insurance Act. The appellant maintains that he did not reasonably know that his injuries had met the statutory threshold or the $30,000 statutory deductible applicable in this case, prior to March 2, 2014, two years prior to commencing his action. He submits that the motion judge erred in failing to make a specific finding as to the date on which the appellant discovered or ought to have discovered that his injuries amounted to a serious and permanent impairment that met the statutory deductible, which marked the start of the limitation period.

[16] I agree that the motion judge failed to make a specific finding of the discovery date, alluding only to a general time period, namely, “within the two-year time period”. As I explain below, I am not persuaded, however, that this error amounted to reversible error that tainted the entirety of the judgment.

[17] First, although he did not mention a specific date for the commencement of the limitation period, the motion judge referenced the correct analysis. He cited to Peixeiro, noting that time under the Limitations Act does not run until it is reasonably discoverable that the alleged injuries meet the threshold within the Insurance Act and that to meet this statutory threshold, the appellant must have a permanent and serious impairment. He correctly instructed himself that discoverability in this context refers to when the appellant first knew or ought to have known that a claim would be an appropriate remedy for the loss.

[18] Moreover, in reading the motion judge’s reasons generously, as I am required to do, the foundation for his decision is clear because he tethers his conclusion to the timing of the evidence of the appellant’s serious and permanent impairment. The evidence relied upon by the motion judge supports the conclusion that the appellant knew or reasonably ought to have discovered that he had a serious and permanent impairment that potentially met the statutory deductible prior to March 2, 2014.

[19] I also reject the appellant’s arguments that the evidence could not have established that the appellant’s pleaded impairment was serious and permanent, or that he ought to have discovered it was serious and permanent more than two years before the claim was filed. The motion judge did not misapprehend the evidence that informs the requisite analysis under the Limitations Act for discoverability or under the Insurance Act for serious and permanent impairment.

[20] The motion judge detailed in his reasons the uncontroverted evidence that recounted the consistent history, severity and permanence of the appellant’s injuries following the accident. This evidence included the appellant’s self-reports of his injuries to the various physicians and psychologists who examined him for insurance purposes, and to his own family doctor, and the appellant’s evidence on his examination for discovery. In particular, the motion judge noted the December 19, 2013 report of psychiatrist Dr. Azadian, which concluded that the appellant suffered from a serious psychological disorder, and the “remarkably similar” September 12, 2014 report of Dr. Sedighdeilami.

[21] This evidence sets out physical injuries that the appellant says emerged almost immediately following the accident and persist to the present day. It also details psychological injuries documented in 2013. These are the same injuries that are particularized as serious and permanent in his statement of claim, for which he claims hundreds of thousands of dollars in damages that clearly surpass the applicable $30,000 statutory deductible. Importantly, the evidence does not establish any change in the appellant’s condition: he claims that his impairment is as serious and permanent now as it was immediately following the accident. The appellant confirmed on his examination for discovery that he had suffered from his various injuries since the accident, and there was no medical evidence that differed from the opinions given prior to March 2, 2014. [1]

[22] I disagree with the appellant’s contention that the limitation period did not start to run as he did not have medical opinions in the form required under s. 4.3 of Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996 (“O. Reg. 461/96”). Accepting without deciding that he did not have medical opinions in the form required under s. 4.3 for the purposes of a threshold motion or trial before March 2, 2014, the appellant, nonetheless, had medical opinions and his own evidence of injuries that were sufficient to trigger the discovery of his claim and the commencement of the limitation period.

[23] Section 4.3 of O. Reg. 461/96 sets out the evidence a plaintiff must adduce, in addition to “any other evidence”, to prove a permanent serious impairment of an important physical, mental or psychological function for the purposes of s. 267.5 of the Insurance Act: s. 4.3(1). The plaintiff’s evidence must include the evidence of one or more physicians: s. 4.3(2) to (4). In addition to the physician’s evidence, the plaintiff’s evidence must include corroborative evidence of the change in function alleged to be a permanent serious impairment: s. 4.3(5). The corroborative evidence may come from the plaintiff: Gyorffy v. Drury, 2015 ONCA 31, 380 D.L.R. (4th) 330, at paras. 33-44.

[24] The evidentiary proof set out in s. 4.3 that a plaintiff is required to produce on a threshold motion or at trial is different from the evidence sufficient to trigger a plaintiff’s discovery of a cause of action and the commencement of the limitation period for bringing an action. When an action progresses, a total absence of medical evidence and a lack of intention to adduce such evidence can be a basis for summary dismissal: see, e.g. Halley v. TTC, 2018 ONSC 6093. However, there is no statutory requirement that a plaintiff must have the exact form of evidence outlined under s. 4.3 to commence an action.

[25] As this court stated in Everding, at para. 11, “[c]learly it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have a substantial chance to succeed in recovering a judgment for damages” (emphasis added). A physician’s evidence that meets the strict and elevated requirements in s. 4.3 is not necessary for a plaintiff to have reasonable knowledge of a substantial chance of success. Delaying the commencement of a limitation period until a plaintiff obtains a physician’s evidence in the particular form required by s. 4.3 would “move the needle too close to certainty”, which is not the standard required to trigger discovery of a claim and the commencement of the limitation period: see, e.g., Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at paras. 47-48, citing K.L.B. v. British Columbia, 2003 SCC 51, [2003] 3 S.C.R. 403, at para. 55.

[26] In this case, the appellant had his own self-reports, as well as medical opinions obtained prior to March 2, 2014, that are consistent with the later medical opinions. He filed his statement of claim based on what he knew as of March 2, 2016. At the very latest, by December 19, 2013, he had Dr. Azadian’s report that stated he had a serious psychological disorder, which triggered the limitation period. Though the specific forms of evidence the appellant had to support his claim continued to develop, the record indicates that he had equivalent knowledge supporting the same substantial chance of success more than two years earlier.

[27] In my view, this body of evidence was sufficient to trigger the commencement of the limitation period.

[28] Finally, that the motion judge in his reasons sometimes interchanged “serious and permanent injuries” with “serious and permanent impairment” is of no moment and reflects the wording used in the appellant’s statement of claim. The motion judge’s reasons demonstrate that he was alert to the alleged nature and extent of the appellant’s injuries and to the correct standard under the Insurance Act of “permanent serious impairment”.

Disposition

[29] As a result, there is no basis to interfere with the motion judge’s decision. The appeal is dismissed.

[30] The respondent is entitled to payment of her partial indemnity costs by the appellant in the all-inclusive amount of $15,000.

Released: February 9, 2024 “C.W.H.” “L.B. Roberts J.A.” “I agree. C.W. Hourigan J.A.” “I agree. S. Coroza J.A.”

[1] As noted, there was no substantive difference between the December 19, 2013 report of Dr. Azadian and the September 12, 2014 report of Dr. Sedighdeilami.