Whalen et al. v. Hillier a.k.a. Carrol et al.

[Indexed as: Whalen v. Hillier]

53 O.R. (3d) 550

[2001] O.J. No. 926

Docket No. C33974

Court of Appeal for Ontario

Goudge, MacPherson and Simmons JJ.A.

March 20, 2001

Civil procedure--Summary judgment--Defendants brought motion for summary judgment dismissing plaintiff's action as statute barred--Motions judge had jurisdiction to grant summary judgment on limitation issue in favour of plaintiff even though motion brought by defendants--Motions judge did not err in concluding that there was no genuine issue for trial and in determining limitation issue in favour of plaintiff--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.04(2), (4).

The plaintiff was injured in a motor vehicle accident on March 27, 1994. His injuries were originally diagnosed as fairly superficial and he was expected to make a full recovery. That diagnosis and prognosis proved to be overly optimistic and the plaintiff commenced an action for damages for personal injuries on May 1, 1996. The defendants brought a motion for summary judgment dismissing the action on the ground that it was commenced 34 days after the expiration of the two-year limitation period prescribed by s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The motions judge reviewed the medical evidence and concluded that it was not reasonable that the plaintiff should have concluded that he had suffered a serious impairment of an important physical function within the 35-day period after the accident. The motions judge granted summary judgment on the limitation issue in favour of the plaintiff. The defendants appealed.

Held, the appeal should be dismissed.

Rules 20.04(2) and (4) permit a judge, where there is no genuine issue for trial, or where the only issue is a question of law, to determine the question and grant judgment accordingly. Logically, in such a situation, it is entirely possible for the motions judge to determine the question for or against the moving party. The motions judge had jurisdiction to grant summary judgment on the limitation issue in favour of the plaintiff even though the motion for summary judgment was brought by the defendants.

The diagnosis and prognosis for the plaintiff's injuries during the first 35 days after the accident, the treatment prescribed for his injuries and the contents of the various doctors' communications with the plaintiff would not even remotely have suggested to the plaintiff, in the relevant 35- day period, that his injuries were causing him serious impairment of an important physical function. The motions judge was entitled to assume that there would be no additional evidence at trial to assist the defendants in establishing their limitation defence. In the absence of crucial evidence from the defendants about the loss of a physical function and its impact on the plaintiff, the motions judge was entitled to conclude that the limitation defence failed.

APPEAL from a summary judgment on an issue of law.

Ash Temple Ltd. v. Croney (2000), 2000 CanLII 1416 (ON CA), 46 O.R. (3d) 561, 2000 C.L.L.C. 210-015 (C.A.); Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 S.C.R. 415, 30 O.R. (3d) 577n, 139 D.L.R. (4th) 426, 203 N.R. 81, 30 B.L.R. (2d) 1, 6 R.P.R. (3d) 1, apld Other cases referred to Ioannidis v. Hawkings (1998), 1998 CanLII 14822 (ON SC), 39 O.R. (3d) 427, 37 M.V.R. (3d) 17 (Gen. Div.); Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.) [Leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi, 172 N.R. 160n]; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429, 217 N.R. 371, 30 M.V.R. (3d) 41, 12 C.P.C. (4th) 255; Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.) Statutes referred to Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1) Insurance Act, R.S.O. 1990, c. I.8, ss. 266(1)(b), 267.1(2) [as am. 1993, c. 10, s. 25; 1996, c. 21, s. 28] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 20.01(3), 20.04(2), 20.04(4), 25.07(4)

No one appearing for plaintiffs/respondents. Alan L. Rachlin, for appellants. John F. Graham, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.:--

A. Introduction

[1] When a defendant brings a motion for summary judgment pursuant to rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, there are two common dispositions. If the motions judge agrees with the defendant, the judge will grant summary judgment. If the motions judge disagrees with the defendant, the judge will dismiss the motion and send the matter on for trial on the basis that there is a genuine issue for trial.

[2] As provided for in Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 S.C.R. 415, 139 D.L.R. (4th) 426, there is a third potential result. It is theoretically possible for the motions judge to agree with the defendant that there is no genuine issue for trial, but disagree with the defendant's proposed resolution of the identified issue. This result is possible because of rules 20.04(2) and (4) which provide:

(2) Where the court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the court shall grant summary judgment accordingly.

(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.

[3] This appeal invites consideration of this third category. The motions judge in this case heard a motion for summary judgment brought by two defendants. The basis for the motion was an allegation that the plaintiffs' action failed to comply with a limitation period and therefore could not proceed. The motions judge decided, in effect, that on the basis of the record there was no genuine issue for trial. However, he disagreed with the defendants' legal position respecting the limitation period. As a result, he granted summary judgment on that issue in favour of the plaintiffs (who had not requested such relief) and against the defendants. The principal question on this appeal is whether the motions judge erred in making this determination.

B. Factual Background

[4] On March 27, 1994, John Whalen was a passenger in a Toyota pick-up truck being driven by William Hillier. Hillier lost control and the truck skidded off the highway and landed on its side. Whalen was injured and was taken by ambulance to University Hospital in London for treatment. He was released three days later.

[5] On May 1, 1996, Whalen and Jennifer Arcand, his common- law spouse, commenced an action against Hillier and Shelly Rastin, the owner of the Toyota truck. The defendants formed the view that the action could not proceed because it had been commenced 34 days after the expiration of the two-year limitation period prescribed by s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. Accordingly, they brought a motion for summary judgment.

[6] The motion was heard by McGarry J. He recognized, correctly, that the plaintiff's action could proceed only if the accident had caused Whalen "serious impairment of an important physical, mental or psychological function": Insurance Act, R.S.O. 1990, c. I.8, s. 267.1(2). He also recognized, again correctly, that the two-year limitation period would commence to run only after it was reasonably discoverable by Whalen that his injuries came within this statutory definition: see Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429.

[7] The motions judge reviewed the medical evidence and concluded that it was not "reasonable that Whalen should have concluded that he had suffered a serious impairment of an important physical function within the 35-day period after the accident". Accordingly, he dismissed the defendants' motion for summary judgment.

[8] After the release of his reasons, counsel were unable to agree whether the motions judge had referred the limitation issue on for trial or had decided it against the defendants. Counsel corresponded with the motions judge who then released supplementary reasons stating: "It was intended by me that the decision was not limited to there being a genuine issue for trial but rather the ultimate issue of whether or not the limitation period was in fact missed."

[9] The appellants appeal the motions judge's decision. They do not challenge his decision not to grant summary judgment to them. They are prepared to agree that the question of the timing of Whalen's knowledge that his injuries might come within s. 267.1(2) of the Insurance Act raises a genuine issue for trial. However, the appellants do challenge the result that flows from the motions judge's supplementary reasons; they say that he erred in finding that there was no genuine issue for trial and in deciding the limitation issue against them on the merits.

C. Issue

[10] The sole issue on the appeal is whether the motions judge erred by granting summary judgment to the plaintiffs on a motion brought by the defendants.

D. Analysis

(1) Jurisdiction

[11] In their Notice of Appeal and in their factum the appellants contended that the motions judge exceeded his jurisdiction by granting summary judgment to the plaintiffs on the limitation issue. As expressed in their factum:

By in effect granting summary judgment against the appellants, the judge granted relief that was not sought by the moving parties and in doing so made an error of law. If he was not prepared to grant the relief sought, he should have simply dismissed the motion.

[12] In oral argument, the appellants conceded that this position was not available to them. Rules 20.04(2) and (4) permit a judge, where there is no genuine issue for trial, or where the only issue is a question of law, to determine the question and "grant judgment accordingly". Logically, in such a situation, it is entirely possible for the motions judge to determine the question for or against the moving party. Indeed, the Supreme Court of Canada interpreted rules 20.04(2) and (4) in precisely this fashion in Manulife Bank of Canada v. Conlin, supra, wherein Iacobucci J.[^1] stated at p. 448 S.C.R.:

. . . Rules 20.04(2) and (4) gave Killeen J. the jurisdiction to dismiss the action against the [moving party] respondent. The motions court judge could either have found that there was no genuine issue for trial or he could have found that the only genuine issue was an issue of law. In either case, it would have been within his jurisdiction . . . to dispose of the matter by dismissing [the moving party] Manulife's claim.

See also: Ash Temple Ltd. v. Croney (2000), 2000 CanLII 1416 (ON CA), 46 O.R. (3d) 561 at pp. 569-70, 2000 C.L.L.C. 210-015 (C.A.).

[13] In the present case, the motions judge dealt with a single issue that involved both the plaintiffs' claims and a defence (the two-year limitation period). The moving party defendants sought summary judgment against the plaintiffs' claims based on the limitation period defence. Instead, the motions judge granted summary judgment against the defendants' limitation defence. In light of Manulife Bank of Canada v. Conlin and Ash Temple Ltd. v. Croney, and bearing in mind that rule 20.04(2) expressly authorizes a judge to grant summary judgment "with respect to a claim or defence", in my view it was open to the motions judge, as a matter of jurisdiction, to grant summary judgment against the moving party defendants with respect to their limitation defence. There is nothing in the wording of rules 20.04(2) and (4) or in the case law to restrict such an order to a case in which the plaintiffs seek this relief in their own motion or cross-motion. Moreover, in this case the motions judge had before him the medical records from the first 35 days after the accident and Whalen's evidence relating to the same period. The record relevant to the limitation issue would be no better at trial.

(2) The merits

[14] The real question then becomes: on the merits, was the motions judge correct to grant summary judgment against the appellants on the limitation issue? The appellants suggest that the motions judge made two errors.

[15] First, the appellants submit that the motions judge focused on a materially different standard than the one set out in s. 267.1(2) of the Insurance Act. The standard in s. 267.1(2) is "serious impairment of an important physical, mental or psychological function". Section 267.1(2) replaced the former s. 266(1)(b) which framed the standard as "permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature".

[16] The appellants contend that there are important differences between the two standards: under s. 267.1(2), unlike under s. 266.1(b), the injuries suffered by the plaintiff need not be physical or continuing or permanent. In short, the standard is lower under the new provision. I agree.

[17] The appellants then assert that the motions judge used language and referred to case authority that indicate that he was applying the old, and therefore wrong, standard. In support of this assertion, they point to his observation that the medical reports indicated that Whalen's injuries were "temporary" and his framing of the question in terms of whether Whalen should have concluded that he had suffered a serious impairment of an important "physical" function within the 35-day period after the accident. The appellants also state that the motions judge relied on a case, Ioannidis v. Hawkings (1998), 1998 CanLII 14822 (ON SC), 39 O.R. (3d) 427, 37 M.V.R. (3d) 17 (Gen. Div.), dealing with the standard in the former regime. Combining these points, the appellants assert that the motions judge set the bar too high. If he had set it properly, namely at the s. 267.1(2) level, he would have recognized that it was reasonable for Whalen to have discovered that he had a qualifying injury in the 35 days after the accident.

[18] I disagree. The motions judge discussed both regimes and explicitly acknowledged the defendant's submission that "the statutory bar contained in s. 267.1 is substantially softer and lower when compared with the threshold under s. 266 of the previous [Act] . . . ." He used the word "temporary" in a descriptive context when he was reviewing the medical reports. There is nothing in his use of "temporary" to suggest that he misunderstood the standard, including the possibility that a temporary injury could qualify. Similarly, I cannot fault his use of the word "physical" in the sentence where he framed the question which governed the motion. Although s. 267.1(2) includes physical, mental and psychological functions, the only injuries which were really in play in the 35-day period relevant to the limitation issue were physical injuries. Indeed, the appellants concede as much: in Mr. O'Brien's affidavit in support of the motion for summary judgment the appellants admit that Whalen sustained serious impairment "of bodily functions" during the five weeks following the accident. Finally, the motions judge's reliance on Ioannidis v. Hawkings was not inappropriate in the context of the record before him. The passage from this case cited by the motions judge dealt with a general point of interpretation relating to the standard of proof with respect to qualifying injuries.

[19] In summary, on the appellants' first point, the motions judge stated early in his reasons that "the plaintiffs may not successfully bring an action for damages unless they can prove that Whalen sustained 'a serious impairment of an important physical, mental or psychological function' in accordance with the Insurance Act . . . s. 267.1". This is a correct statement of the standard. In my view, in the remainder of his reasons the motions judge did not stray from this standard.

[20] The second error made by the motions judge, the appellants submit, was his conclusion that there was no genuine issue for trial on the limitation issue. He reached this conclusion on the basis that it was not "reasonable that Whalen should have concluded that he had suffered a serious impairment of an important physical function within the 35-day period after the accident".

[21] The appellants assert that there is some evidence that might suggest that Whalen should have realized that his injuries met the s. 267.1(2) standard in the 35-day period after the accident. They point to the fact that when Whalen left the hospital he was unable to walk without the aid of crutches. They also point to certain answers Whalen gave at his discovery:

146 Q. Now I want to talk a little about that period of time, Mr. Whalen, the first couple of months after the accident. Can you tell me how your injuries were affecting your ability to do your daily activities?

A. I couldn't do anything. I didn't even know where I was half the time.

147 Q. Why was that?

A. 'Cause I was so whacked out on drugs.

148 Q. You were taking Percocet, as I understand it?

A. Yes, Percocet, Talwins, many, many--any and many derivatives of pain killers.

Taking these points together, the appellants submit that it would be open for a court to find that at some time before May 1, 1994 (two years before he commenced the action) Whalen knew that he had a serious impairment of an important physical function within the meaning of s. 267.1(2) of the Insurance Act. Thus the motions judge erred when he resolved the limitation issue in Whalen's favour on a summary judgment motion.

[22] I disagree, essentially for three reasons. First, the medical evidence about Whalen's injuries in the 35 days after the accident is, as the motions judge recognized, overwhelming. All of the doctors who treated Whalen during that period provided diagnoses and prognoses which did not suggest a serious impairment of an important physical function.

[23] When Whalen was discharged from the hospital on March 30, 1994, Dr. Vandersluis prepared a discharge summary dealing with both diagnosis and treatment:

Mr. Whalen . . . complained of diffuse pain in his back and his left leg. He was assessed by the Emergency physicians and subsequently felt to have isolated orthopedic injury. Multiple x-rays which included femur, pelvis, chest x-ray, right shoulder, left tib fib, left knee, left femur revealed there were no fractures. He had a contusion over the medial aspect of the proximal medial head of the gastrocs. There seemed to be a defect here at least in the subcutaneous tissue. He was felt to have a medial head gastroc rupture . . . MRI revealed that there was no disruption of the muscle. There was a haematoma in this area. This was discussed with Dr. Rorabeck. It was felt that this gentleman required no further orthopedic treatment than physiotherapy. Also of note is the fact that he was assessed by the General Surgery Service and his abdomen was felt to be benign. While in hospital he was eating and there were no difficulties. He had a cervical spine assessed . . . we cleared his C-spine both radiographically and clinically. He was absolutely nontender. He did have some tenderness on the right AC joint. There was no evidence of distraction between the coracoid and the clavicle and this was felt to be a grade 1 AC injury [i.e. minor sprain]. The patient will be treated symptomatically with anti-inflammatories for this. Other than that there were no injuries discovered.

There is nothing in this summary to suggest the s. 267.1(2) standard -- serious impairment of an important physical function -- has been met.

[24] Whalen saw his family physician, Dr. Awde, on March 31 and April 4, 1994. Dr. Awde referred to tenderness and pain and prescribed physiotherapy and Percocet for pain control. Whalen did not see Dr. Awde again until July 7.

[25] Twice more in April 1994, Whalen returned to the orthopedic clinic at the hospital for follow-up assessments. On April 28, just three days before May 1, 1994, the date that is relevant for purposes of the limitation issue, Dr. Mulliken wrote:

ASSESSMENT: Multiple soft tissue injuries from a MVA with left medial head of gastrocnemius rupture and Grade I A/C joint injury of the right shoulder.

PLAN: The patient was reassured that his soft tissue injuries will gradually heal and he should have an improvement in his symptoms.

Again, there is nothing in Dr. Mulliken's diagnosis or treatment plan to suggest that Whalen's injuries were producing the effects of the statutory standard.

[26] In summary, the diagnosis and prognosis for Whalen's injuries during the first 35 days after the accident, the treatment prescribed for his injuries, and the contents of the various doctor's communications with Whalen would not have even remotely suggested to Whalen, in the relevant March 27 [to] May 1 period, that his injuries were causing him serious impairment of an important physical function. Indeed, Whalen would have had no reason to think anything other than that he would soon experience a complete recovery from his injuries and any impairment they might cause to his physical functions.

[27] Second, the evidence relied on by the appellants as contradicting the medical evidence is, in a word, trivial. Simply requiring the assistance of crutches in leaving the hospital after three days admission does not, in itself, suggest serious impairment of an important physical function. Moreover, Whalen's answer at his discovery that "I couldn't do anything" was immediately and graphically explained in terms of the drugs he was taking. It was not an assertion of serious impairment of all or any important physical functions. Further, the appellants, who brought the motion for summary judgment, failed to specify the loss of a physical function within the 35-day period which they say met the standard. They also failed to demonstrate how it would have mattered to Whalen. Whether an impairment of a physical function is a serious impairment of an important physical function requires an individualized assessment of both the injured person and the effects of any injuries on his condition a nd activities: see Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 at pp. 138-40, 110 D.L.R. (4th) 354 (C.A.). There was nothing in the record placed before the motions judge by the defendants to assist in making this individualized assessment. A limitation period is a defence which must be specifically pleaded and proven: see rule 25.07(4) and Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.). The motions judge was entitled to assume there would be no additional evidence at trial to assist the defendants in establishing their limitation defence. In the absence of crucial evidence from the defendants about the loss of a physical function and its impact on Whalen, the motions judge was entitled to conclude that the limitation defence failed.

[28] Third, it is worth noting that the appellants, with full knowledge of the medical reports, initially took the position that Whalen had not suffered effects from his injuries that brought him within the statutory standard. They said this explicitly in their Statement of Defence on March 26, 1997. More than two years later, on July 23, 1999, the appellants formally abandoned this position and conceded that the effects of Whalen's injuries came within the standard. My observation about this chronology is that if the appellants did not acknowledge that Whalen's injuries had produced serious impairment of an important physical function until July 23, 1999, it renders unpersuasive their assertion that there is a genuine issue about whether Whalen should have reached the same conclusion before May 1, 1994.

(3) Summary

[29] In summary, in my view the motions judge had jurisdiction to grant summary judgment on the limitation issue in favour of the plaintiffs even though the motion for summary judgment was brought by the defendants. Moreover, on the merits, the motions judge was correct to conclude that there was no genuine issue as to material facts and to determine the limitation issue in favour of the plaintiffs. In Manulife Bank of Canada v. Conlin, supra, at p. 448, Iacobucci J. explicitly linked his interpretation of rules 20.04(2) and (4) to rule 1.04(1) which provides: "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."

[30] In my view, the motions judge's analysis and conclusion in this case were faithful to the jurisdictional and substantive strictures of rule 20.04 and to the spirit of rule 1.04. He correctly concluded that there were no material facts in dispute and he correctly resolved the substantive issue concerning the limitation period. His correct conclusions resulted in a just, expeditious and inexpensive determination of an important issue in this action.

E. Disposition

[31] I would dismiss the appeal with costs.

Appeal dismissed.

[^1]: In dissent, but not on this point. Cory J., writing for the majority, expressly agreed with Iacobucci's J.'s analysis on this point: see p. 421.