Court File and Parties
COURT FILE NO.: 17-72731 DATE: 2019-01-02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YASMINE SIDDIQUI, by her litigation guardian, NIZAM SIDDIQUI, NIZAM SIDDIQUI, CHANTAL JACOB-SIDDIQUI and HASAN SIDDIQUI Plaintiffs – and – SAINT FRANCIS XAVIER HIGH SCHOOL and OTTAWA CATHOLIC SCHOOL BOARD Defendants
Counsel: Joseph Y. Obagi, for the Plaintiffs Colin R. Dubeau, for the Defendants
HEARD: November 22, 2018
Reasons for Decision
BEAUDOIN J.
[1] The Defendants bring this Motion for Summary Judgment dismissing all of the claims set out in the Statement of Claim because the underlying action was commenced outside the applicable two-year limitation period set out in the Limitations Act, S.O. 2002, c. 24, Sched. B (“the Act”). The Plaintiffs concur with the Defendants that this is an appropriate issue for final determination by way of a Motion for Summary Judgment on the record currently before the court.
[2] The Plaintiffs seek an order granting partial summary judgment dismissing the Defendants’ limitation defence contained in their Statement of Defence on the ground that this action is not prescribed by the Act.
Facts
[3] On February 25, 2013, the Plaintiff, Yasmine Siddiqui (“Yasmine”), participated in hockey tryouts for the St. Francis Xavier High School girls’ hockey team. St. Francis Xavier High School operates under the Ottawa Catholic School Board (“OCSB”). Yasmine alleges that, during the tryouts, she fell and sustained injuries. At the time of her fall, Yasmine was 12 years-old and a grade 7 student at St. Francis.
[4] Following the accident, Yasmine’s father, Nizam Siddiqui, retained Jamie M. Noel, a lawyer with Quinn Thiele Mineault Grodzki LLP. On April 25, 2013, approximately two months after the incident, Ms. Noel wrote to St. Francis and put both St. Francis and its insurers on notice of a potential action for damages arising from Yasmine’s fall during the hockey tryouts. The letter identifies Yasmine’s father, Nizam Siddiqui, as her litigation guardian. It reads:
We hereby give you notice of our client’s intention to prosecute a claim for damages, a lawsuit arising out of the negligence that occurred on the date indicated. We have yet to issue the claim.
[5] On June 10, 2013, Yasmine, Mr. Siddiqui and Ms. Noel met with the representative assigned to the claim, Michael Saltmarsh, to provide a statement about Yasmine’s fall and injuries.
[6] On May 25, 2017, four years and three months after the incident, the Plaintiffs commenced the underlying action seeking damages for, among other things, personal injuries sustained by Yasmine following the fall on February 25, 2013. On the same day, Mr. Siddiqui swore an Affidavit of Litigation Guardian, agreeing to act as Yasmine’s litigation guardian in the court proceeding.
[7] On June 29, 2017, the Defendants served and filed a Statement of Defence alleging, among other things, that the Plaintiffs commenced their claim outside the applicable limitation period.
The Issue on this Motion
[8] The central issue in this motion is whether the two-year limitation period began to run on the date that a letter was sent to the Defendants wherein Mr. Siddiqui held himself out as the litigation guardian, or alternatively, from the date the action was commenced, and Mr. Siddiqui swore the Affidavit of Litigation Guardian.
[9] Counsel advise that this is the first time a court is asked to determine whether the limitation period begins from the date that an individual holds himself out as the litigation guardian in a notice letter (as the Defendants state) or, alternatively, from the date the litigation guardian files the affidavit required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (as the Plaintiffs state).
[10] Pursuant to s. 4 of the Act, the basic limitation period within which a proceeding must be commenced is the second anniversary of the day on which the claim was discovered.
[11] Section 6 of the Act provides that no limitation runs against a minor who is not represented by a litigation guardian:
- The limitation period established by s. 4 does not run during any time in which the person with the claim, (a) is a minor; and (b) is not represented by a litigation guardian in relation to the claim. [1]
Position of the Defendants
[12] The Defendants submit that the text, purpose and context of the Act lead to the conclusion that a limitation period begins from the date that an individual holds himself out as a litigation guardian for a minor plaintiff.
[13] As this issue requires this Court to interpret s. 6 of the Act, the parties agree that the modern approach to statutory interpretation as set out in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 requires the court to take the following three steps: (1) it must examine the words of the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within; and, (3) it must consider the purpose of the legislation or statutory scheme in which the language is found.
[14] The Defendants cite the Federal Court of Appeal’s decision in Canada v. Cheema, 2018 FCA 45, 420 D.L.R. (4th) 534. At para. 80, the court said that there is only one way to discern what a piece of legislation authentically means, and that is:
…to cast aside any personal views and predispositions and, instead, to examine the text, context and purpose of the legislation dispassionately and objectively. Doing this might lead to a result that some might call sensible and practical and in accordance with common sense. But if that happens, it is because that is the authentic meaning of the legislation—not because some judge has made it so.
[15] In this legislation, “Litigation Guardian” is not a defined term. A “claim” is a defined term pursuant to the s. 1 of the Act:
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; (“réclamation”)
[16] The Defendants say that the reference to a claim is broader than a “proceeding” which engages the Rules of Civil Procedure. According to the Defendants, the term “represented” includes holding oneself out as a litigation guardian to the defendants in a claim and that it is possible for a litigation guardian to represent a minor with respect to a claim even if the litigation guardian has not signed an affidavit of litigation guardian.
[17] They maintain this is consistent with the Ontario Court of Appeal’s decision in Azzeh (Litigation Guardian of) v. Legendere, 2017 ONCA 385, 135 O.R. (3d) 721, where the court held that the failure to file an affidavit of litigation guardian is a mere “irregularity” and does not render a proceeding a “nullity.” The court concluded that a limitation period cannot be tolled indefinitely by a failure to file an affidavit of litigation guardian.
[18] The Defendants refer to the history of the current legislation and cite the work of a consultation group which produced a paper for the Attorney General on the proposed Act. That consultation group also made a distinction between a claim and a proceeding. [2]
[19] While the Act does not contain its own statement of purpose, the Defendants submit that the context in which it was enacted demonstrates the intention to simplify the applicable limitation periods in Ontario. They add that the Act contains provisions to protect minors and that these protections must be balanced against the general purpose of limitation periods which they say are intended to provide certainty to litigants. They submit that there comes a time when a potential defendant should be secure in the reasonable expectation that they will not be liable for past obligations.
[20] According to the Defendants, once an individual holds themselves out as a litigation guardian with respect to a claim, as Mr. Siddiqui did in this case, and then takes steps to protect the interests of the party under disability, it is just and reasonable that a limitation period should begin to run from the date of that representation. This ensures that the minor’s interests are protected by pursuing their claim in a timely fashion while also providing a defendant with a degree of certainty and finality.
[21] While the Defendants raised the issue of discoverability in their Factum, I have concluded that my decision does not turn on that principle.
Position of the Plaintiffs
[22] The Plaintiffs submit that the term “litigation guardian” is a term of art under the Act and under the Rules of Civil Procedure and that these provisions serve to inform and direct the meaning and interpretation given to the phrase “represented by a litigation guardian.”
[23] They argue that until such time as a proceeding is formally commenced on behalf of a minor or person under disability by a “litigation guardian”, or alternatively, a “litigation guardian” is appointed by the court, either under the Rules of Civil Procedure or pursuant to the Act, a minor or person under disability cannot be said to be “represented by a litigation guardian.” They say that this is the common sense meaning and interpretation of s. 6(b) of the Act.
[24] The Plaintiffs emphasize the common law’s interest in protecting the rights of minors and persons under disability, which can be determined from a contextual review of the provisions of the Act and the Rules of Civil Procedure.
[25] The Plaintiffs states that the Plaintiff, Nizam Siddiqui, first met the pre-conditions to be appointed as litigation guardian for his daughter when he formally became the litigation guardian under judicial supervision and that this is the earliest date on which a limitation period could be said to start running under the Act.
[26] According to the Plaintiffs, the Defendants have misinterpreted the Court of Appeal’s decision in Azzeh, which they say is entirely supportive of their position in this action. They submit that the fact that the court was prepared to overlook a procedural irregularity in holding that the plaintiff in that case was “represented by a litigation guardian”, is a far cry from supporting the proposition that the mere delivery of a notice letter satisfies the criteria in s. 6(b) of the Act.
[27] The Plaintiffs cite the protections afforded to minors and persons under disability which are crystallized under rr. 7 and 15.01 of the Rules of Civil Procedure once an action is formally issued. They submit that the interpretation advanced by the Defendants does not bring certainty to the application of limitation periods in Ontario. If the Defendants’ submissions are correct, the Plaintiffs say that the mere giving of a notice would require the courts to enter into an analysis of all of the circumstances surrounding any purported notice letter to determine whether a limitation period had, in fact, been triggered.
[28] They note that the Act provides defendants with a means to seek finality while preserving legislative protections for minors. Section 9 of the Act allows a potential defendant with the means to formally trigger the running of a limitation period against a minor or person under disability.
[29] The Plaintiffs submit that when s. 9 is read in context with rr. 7 and 15.01 of the Rules of Civil Procedure, it is evident that the Legislature’s first priority is the protection of the rights of minors and persons under disability.
The Law
The Limitations Act - A Historical Context
[30] Protection for minors was previously contained in s. 47 of the Limitations Act, R.S.O. 1990, c. L.15. This section suspended limitation periods for minors until they reached the age of majority.
[31] While there was no issue that s. 47 applied to limitation periods established under the previous legislation, significant judicial debate arose as to whether the protection of minors contained in s. 47 applied to limitation periods contained in other statutes in the Province of Ontario.
The Limitations Act, 2002
[32] The more recent legislation introduced the changes referred to earlier. As noted, section 9 of the Act provides a mechanism for a potential defendant to trigger the running of a limitation period by bringing a motion to a judge to formally appoint a litigation guardian for a minor. Section 14 provides a similar protection for defendants with regard to all other possible claimants where no litigation guardian needs to be appointed.
[33] The Rules of Civil Procedure govern the appointment of litigation guardians in proceedings before the Superior Court of Justice. Rule 7.02(2) provides the following:
7.02 (2) No person except the Children’s Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person, (a) consents to act as litigation guardian in the proceeding; (b) confirms that he or she has given written authority to a named lawyer to act in the proceeding; (c) provides evidence concerning the nature and extent of the disability; (d) in the case of a minor, states the minor’s birth date; (e) states whether he or she and the person under disability are ordinarily resident in Ontario; (f) sets out his or her relationship, if any, to the person under disability; (g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and (h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.
[34] Rule 7 protects minors and persons under disability from any and all forms of settlements and/or defaults under the Rules of Civil Procedure by requiring leave of a Superior Court Judge in respect of any default proceeding, settlement or discontinuance against or on behalf of a minor or person under disability.
[35] Further protection is provided to minors and persons under disability under rr. 7.05(3) and 15.01 which require that minors and persons under disability be represented by a lawyer in respect of any proceeding brought or defended on their behalf.
Analysis and Conclusion
[36] For the reasons that follow, I am persuaded that the arguments of the Defendants must fail and that I should grant partial summary judgment as requested by the Plaintiffs.
[37] Historically, there was a tension between s. 47 of the previous legislation and the limitation periods set out in other statutes. This issue was ultimately resolved by the Court of Appeal in Papamonolopoulos v. Toronto (City) Board of Education (1986), 56 O.R. (2d) 1. In holding that the protection afforded by s. 47 applied to limitation periods in other statutes, the Court of Appeal recognized the need to protect minors during the period of their infancy. In particular, the court stated at p. 7:
I think the provisions of a statute of limitations should be liberally construed in favour of the individual whose right to sue for compensation is in question. Where two interpretations of the statute are possible, reason favours the one which enables the plaintiff to bring his action.
[38] The Court of Appeal left open the possibility that clear wording in a statute could exclude the suspension of the limitation period contained in s. 47 of the previous Act. As a result, in a subsequent decision, Murphy v. Welsh (1991), 3 O.R. (3d) 182, the Court of Appeal addressed the application of s. 47 of the previous Act to the limitation period contained in s. 180 of the Highway Traffic Act, R.S.O. 1990, c. H.8. It was determined that the specific wording of the provision, as well as the history of the Highway Traffic Act legislation, indicated that the Legislature must have intended that the limitation period for infants be the same as the limitation period for adults and that the limitation period overrode s. 47.
[39] In reversing the decision in Murphy v. Welsh, [1993] 2 S.C.R. 1069, the Supreme Court of Canada said this at pp. 1080-1081:
The s. 180(1) limitation period favours the defendant by serving both the certainty and evidentiary rationales. The diligence rationale cannot be used to support s. 180(1). Implicitly, diligence requires awareness of one's rights. Those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters. Whatever interest a defendant may have in the universal application of the two-year motor vehicle limitation period must be balanced against the concerns of fairness to the plaintiff under legal disability. If s. 180(1) excludes s. 47, an individual under legal disability would be deprived of any remedy unless the disability ends within two years of the accident. Only infants over the age of 16 and individuals suffering from short term mental incompetence would be able to pursue their remedies. The prejudice to plaintiffs under legal disability outweighs the benefits of providing a procedural defence to liability.
[40] In short, the courts have sought to protect the interest of minors and have found that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.
[41] The 2002 legislation was in issue in Socha v. Peninsula Towing & Recovery Inc., 2015 ONSC 5076, 127 O.R. (3d) 57. In that case, a proceeding had been commenced on behalf of a minor plaintiff who was represented by a litigation guardian who was then replaced by another litigation guardian who then attempted to amend the claim to add two new defendants outside the limitation period. The issue in that case was discoverability. While the defendants rely on this decision in support of their argument on the meaning of the word “claim”, the court said this at paras. 16-20:
16 The effect of the appointment of a litigation guardian in the Limitations Act, 2002 is a departure from the effect of the appointment of litigation guardians under the Limitations Act, R.S.O. 1990, c. L.15. In respect of claims governed by the old Act, the limitation period would not commence to run until the minor attained the age of 18. The appointment of a litigation guardian had no effect on the potential claim. The new Act specifically provides the limitation period will run when a litigation guardian represents a minor in relation to the claim. 17 There is no mechanism for the self-appointment of a litigation guardian in the Act. There is a provision for the appointment of a litigation guardian by a proposed defendant in section 9(3). This allows for a potential defendant to commence the running of limitation period against a minor or incapable person. 18 A litigation guardian may be self-appointed under the Rules of Civil Procedure. Rule 7.02(2) addresses the requirements of the contents of the affidavit to be filed by the litigation guardian, which includes 19 The litigation guardian has a duty to diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (R.7.05(2)). The litigation guardian shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding (R. 7.05(3)). 20 A litigation guardian is appointed under the Rules of Civil Procedure in the context of a particular proceeding. The Act refers to the minor being represented by a litigation guardian in relation to the claim. The claim is defined as “a claim to remedy an injury, loss, or damage that occurred as a result of an act or omission”. A proceeding is defined under the Rules of Civil Procedure as an action or an application. The term “claim” is broader than proceeding. (Emphasis added; citations omitted).
[42] I conclude that the court in Socha recognized the term “litigation guardian” as a term of art when it identified the lack of any mechanism of self-appointment under the Act and then referred to the process for appointment of a litigation guardian under the Rules of Civil Procedure.
[43] Similarly in Azzeh, Azzeh’s lawyers brought a motion to amend the pleadings to add the City of Sudbury as a defendant and to increase the amount of damages sought. The City unsuccessfully opposed the motion on two grounds: first, the claim against the City was statute-barred and second, the claim was barred because there was a failure to give the City notice within ten days of the accident, as required under s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25.
[44] The issue before the Court of Appeal was the identification of the precise date on which the plaintiff could be said to be “represented by a litigation guardian” for purposes of s. 6(b) of the Act. A number of dates were considered by the Court of Appeal based on the arguments advanced before them and the court ultimately accepted the date on which the plaintiff issued a Statement of Claim naming the minor’s mother as her litigation guardian. It was only then that a proceeding had been commenced.
[45] In dismissing the City’s appeal on the issue of the missed limitation period, the court said this at paras. 29 and 30:
29 On appeal, the City’s primary argument is that the motion judge erred in finding that the claim against it was not statute-barred under the Limitations Act, 2002. The City submits a minor is represented in relation to a claim as soon as someone takes steps on the minor’s behalf in relation to the claim, not when a statement of claim is issued. Neville was representing Bayden when she signed the contingency fee agreement or, in any event, when she signed the application for statutory accident benefits in 2011. Neville knew, or ought to have known, of the claims against the City in 2011 at the latest. Thus, the City submits the limitation period had expired by the time this motion was brought. 30 I would reject the City’s submission. The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made. Where the person with a claim is a minor, the Act requires that the minor be “represented by a litigation guardian in relation to the claim”. The word “represented” signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do (r. 7.05(1)). [2] Where the litigation guardian enters into a solicitor and client relationship, the solicitor is the agent of the litigation guardian. The solicitor owes a fiduciary duty to the litigation guardian and acts on her behalf. The solicitor is therefore an extension of the litigation guardian – they are one and the same and allied in interest. This conclusion is supported by the requirement in rr. 7.05(3) and 15.01(1) of the Rules of Civil Procedure that a litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee must be represented by a lawyer.
[46] In my view, the court was once again using the term “litigation guardian” as a term of art when it referred to the Rule 7.05 when it interpreted the meaning of the word “represented.”
[47] While the Defendants seek to distinguish a “claim” from a “proceeding”, s. 2(1) of the Act provides:
“This Act applies to claims pursued in court proceedings other than…” (Emphasis added).
As such, the legislation does not provided the clear distinction relied upon by the Defendants.
[48] I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient. The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.
[49] I agree that that the determination of a minor’s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability.
[50] This conclusion is reinforced by the other provisions of the Act; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the Act.
[51] Section 9(2) provides:
Appointment of litigation guardian on application or motion by potential defendant (2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.
Effect of appointment (3) Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period if the following conditions are met:
- The appointment is made by a judge on the application or motion of a potential defendant.
- The judge is satisfied that the litigation guardian, i. has been served with the motion, ii. has consented to the appointment in writing, or in person before the judge, iii. in connection with the claim, knows of the matters referred to in clause 5(1)(a), iv. does not have an interest adverse to that of the potential plaintiff, and v. agrees to attend to the potential plaintiff’s interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.
Non-expiry (4) The limitation period shall be deemed not to expire against the potential plaintiff until the later of, (a) the date that is six months after the potential defendant files, with proof of service on the litigation guardian, i. a notice that complies with subsection (5), and ii. a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and (b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).
Notice (5) The notice, (a) shall not be served before the first anniversary of the appointment; (b) shall identify the potential plaintiff, the potential defendant and the claim; and (c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced. 2002, c. 24, Sched. B, s. 9(5).
[52] Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.
[53] The parties have agreed that the costs of the motion are fixed in the amount of $8,500 payable to the winning party and these are so ordered paid by the defendants.
Mr. Justice Robert N. Beaudoin Released: January 2, 2019
Footnotes: