Elliott et al. v. Canadian Forces Housing Agency Kingston et al.

[Indexed as: Elliott v. Canadian Forces Housing Agency Kingston]

68 O.R. (3d) 661

[2003] O.J. No. 5221

Docket No. C34043

Court of Appeal for Ontario

Abella, Cronk and Armstrong JJ.A.

December 23, 2003

Limitations -- Discoverability -- Plaintiff bringing action for damages for personal injuries allegedly suffered on Canadian Forces base -- [page662] Motions judge granting defendants' motion for summary judgment on basis that action was statute-barred by s. 269(1) of National Defence Act -- Motions judge not considering discoverability issue raised by plaintiff's uncontradicted assertion that he had received erroneous official advice that he could not bring action against Canadian Forces while his claim for military pension was pending -- Genuine issue for trial existing -- Plaintiff's appeal allowed -- National Defence Act, R.S.C. 1985, c. N-4, s. 269(1).

The plaintiff brought an action for damages for personal injuries allegedly suffered on a Canadian Forces base. The Crown's motion for summary judgment was granted on the basis that the action was statute barred by the six-month limitation period in s. 269(1) of the National Defence Act. The plaintiff appealed.

Held, the appeal should be allowed.

In responding to the summary judgment motion, the plaintiff had made the uncontradicted assertion that he was informed by members of the Canadian Forces and his Pensions Advocate that he could not bring an action against the Canadian Forces while his claim for a military pension was pending. The advice which the plaintiff claimed to have received was erroneous. In the circumstances, there was a genuine issue for trial concerning whether the discoverability principle applied to postpone the commencement of the limitation period under s. 269(1) of the National Defence Act and as to whether the plaintiff honestly and reasonably understood, as a result of advice that he had received from representatives of the defendants, that he had no legal recourse against the defendants in civil proceedings for his injuries. Summary judgment should not have been granted.

APPEAL by the plaintiff from a summary judgment dismissing an action.

Cases referred to Clay v. Yassin (2002), 2002 23610 (ON SC), 62 O.R. (3d) 676, 32 M.V.R. (4th) 144, [2002] O.J. No. 5122 (QL) (S.C.J.); Peixeiro v. Haberman, 1997 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

Statutes referred to National Defence Act, R.S.C. 1985, c. N-4, s. 269(1) Occupiers Liability Act, R.S.O. 1990, c. O.2 Pension Act, R.S.C. 1985, c. P-6, s. 21(2)

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)

Frank E. Van Dyke, for appellants/plaintiffs. Catherine A. Lawrence, for respondents/defendants.

The judgment of the court was delivered by

[1] CRONK J.A.: -- This is an appeal from the order of Panet J., of the Superior Court of Justice, dated July 22, 2003, granting the [page663] respondents' summary judgment motion under rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990. Reg. 194, on the basis that the appellants' action was statute barred under s. 269(1) of the National Defence Act, R.S.C. 1985, c. N-4 (the "NDA").

[2] The background facts of this dispute are set out in the motions judge's decision and need not be repeated in detail here. As relevant to this appeal, the following facts are significant: (i) the appellant Jason Elliott allegedly sustained personal injuries on December 26, 1997, in his home at a Canadian Forces base in Kingston, when stairs he was descending collapsed; (ii) as a result of those injuries, Mr. Elliott applied for pension benefits under s. 21(2) of the Pension Act, R.S.C. 1985, c. P-6. His pension claim was denied on June 18, 2002; (iii) Mr. Elliott next appealed the denial of his pension claim to the Entitlement Appeal Division of the Veterans Review and Appeal Board, with the assistance of a Pensions Advocate from the Bureau of Pensions Advocates of the Government of Canada; (iv) on October 9, 2002, Mr. Elliott and his wife, Kerri Elliott, commenced this action against the Canadian Forces Housing Agency Kingston, the agency that provided their housing accommodation on the Canadian Forces base, and the Attorney General of Canada, claiming damages for Mr. Elliott's injuries based on the respondents' alleged negligence and breach of the Occupiers Liability Act, R.S.O. 1990, c. O.2; and (v) the respondents moved for summary judgment concerning the appellants' action on the basis that it was statute barred under s. 269(1) of the NDA because it was not commenced within six months of the act, neglect or default alleged.

[3] The motions judge held that the Crown was entitled to rely on the limitation period defence afforded by s. 269(1) of the NDA, that the appellants' claim against the respondents fell within the ambit of that statutory provision, and that the six-month limitation period applied to bar the appellants' action. Accordingly, he concluded that there was no genuine issue for trial and granted summary judgment dismissing the action.

[4] Although the appellants mount several attacks on that decision, I need address only one of their grounds of appeal. In responding to the summary judgment motion, the appellants filed an affidavit in which Mr. Elliott swore:

I have been told by the Canadian Forces that I was not permitted to bring an action against the military forces as I was entitled to a military pension.

Given the negative decision of the Veteran Review and Appeal Board [dated June 18, 2002], I became concerned that I would not receive a pension. I [page664] therefore retained the services [of a solicitor] on September 27, 2002 and a Statement of Claim was issued on October 9, 2002.

I can indicate that it was my strong understanding throughout that I was not permitted to commence litigation action against the Canadian Forces. This understanding was provided to me by members of the Canadian Forces and my Pension Advocates [sic].

(Emphasis added)

[5] That evidence was not challenged by the respondents, who neither cross-examined Mr. Elliott on his affidavit, nor filed affidavit evidence to the contrary.

[6] Although Mr. Elliott's affidavit evidence did not identify the exact source and timing of the advice that he allegedly received, and thus was not as fulsome as is desirable on a summary judgment motion, absent challenge of that evidence by the respondents, his uncontradicted sworn evidence established that he understood "throughout", based on advice provided, in part, by his Pensions Advocate, that he was unable to sue the Canadian Forces because he was entitled to a military pension.

[7] Mr. Elliott's understanding, and the advice which he claimed to have received, was in error. In fact, he was not precluded from commencing a civil suit because determination of a pension claim was pending. On the record before the motions judge, however, Mr. Elliott was unaware of potential recourse in an action for damages; he had specifically been told both by the Canadian Forces and his Pensions Advocate that it was unavailable and he understood "throughout" that he had no cause of action. No mention of those uncontested facts is made in the reasons of the motions judge.

[8] In those circumstances, there is a genuine issue for trial concerning whether the discoverability principle applies to postpone the commencement of the limitation period under s. 269(1) of the NDA and as to whether Mr. Elliott honestly and reasonably understood, as a result of the advice that he had received from representatives of the respondents, that the appellants had no legal recourse against the respondents in civil proceedings for the injuries that he suffered in December 1997: Clay v. Yassin (2002), 2002 23610 (ON SC), 62 O.R. (3d) 676, 32 M.V.R. (4th) 144 (S.C.J.) and Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429. Although these issues, and their consequences, may ultimately be decided against the appellants, it is not appropriate that they be determined, or that Mr. Elliott's unchallenged evidence be weighed, on a summary judgment motion.

[9] Accordingly, I would allow the appeal and set aside the decision of the motions judge. The appellants are entitled to their costs of this appeal and of the proceedings before the motions judge on a partial indemnity basis, which I would fix in [page665] the total amount of $10,000, inclusive of disbursements and Goods and Services Tax.

Appeal allowed.