COURT OF APPEAL FOR ONTARIO

DATE: 20030217

DOCKET: C39021

RE: REMEDIOS HARRIS (Plaintiff/Respondent) – and – VIACOM ENTERTAINMENT CANADA INC. and PARAMOUNT CANADA’S WONDERLAND INC.

BEFORE: MORDEN, WEILER and CHARRON JJ.A.

COUNSEL: Todd J. McCarthy for the appellant

Samy Ouanounou for the respondent

HEARD: February 13, 2003

RELEASED ORALLY: February 13, 2003

On appeal from the judgment of Justice Nancy L. Backhouse dated October 2, 2002.

E N D O R S E M E N T

WEILER J.A. (Dissenting):

[1] On October 7, 1995 the respondent was riding on a roller coaster at the appellant’s theme park and hit her head on a metal bracket. When she went to the hospital X-rays were taken and she was informed that a skull X-ray revealed a prominent Sella Turcica, a condition that may not be related to the accident. She was also informed that, on the other hand, the accident may have affected this condition. The respondent saw her family doctor the following week, and was seen by a neurologist later that month. In November 1995, she met with the appellants’ insurance adjuster and provided an authorization for the release of medical reports. Although the adjuster received medical reports in January 1996, the respondent’s counsel did not receive any until the end of March 1996.

[1] The appellants brought a motion for summary judgment on the ground that the six-year limitation statutory period for the respondent to bring her action had expired before February 22, 2002 when the statement of claim was issued.

[2] The motions judge dismissed the motion. In so doing she also held that the limitation period had not expired. In my opinion although the motions judge was correct to dismiss the motion she went too far in her comments. Whether a medical opinion was necessary for the respondent to know that there was a causal connection between the roller coaster ride and her injury such that she would have a cause of action was an issue of fact to be determined at trial. I would dismiss the appeal on the basis that the limitation period issue is one that should be tried.

“Karen M. Weiler”

MORDEN J.A. and CHARRON J.A.:

[3] The jurisdiction of this court to hear this appeal is based on the definitive conclusion of the motions judge, on the issue raised in the notice of motions, that the action was commenced within the limitation period. With respect, in light of the uncontroverted evidence to which we shall refer, we do not think that the motions judge’s reasons justify the conclusion she reached. We observe that promissory estoppel is not relied upon by the plaintiff respecting the delay in commencement of the action.

[4] The plaintiff’s written statement of November 2, 1995, which is not contradicted by the other evidence in any significant respect, clearly shows that in October 1995 the plaintiff knew or at the least reasonably should have known all of the elements of her claim against the defendants. We do not think that the fact that there was a mere possibility that there was no causal connection between the accident and the condition she was suffering from prevented the commencement of the running of the limitation period. The evidence before the motions judge clearly satisfied the requirements of rule 76(14) for the granting of summary judgment.

[5] Accordingly, the appeal is allowed, the judgment of Backhouse J. is set aside, and in its place we grant judgment dismissing the action.

[6] Having heard submissions on costs, we order the costs of the motion, which include the costs of the action, fixed in the amount of $2,000, be paid to the defendants and award the costs of the appeal to the defendants fixed in the amount of $3,500.

“J.W. Morden J.A.”

“Louise Charron J.A.”