Philion, by Her Litigation Guardian, Philion v. The Estate of Lemieux, Deceased, et al. [Indexed as: Philion (Litigation Guardian of) v. Lemieux (Estate of)]

85 O.R. (3d) 1

Court of Appeal for Ontario,

Gillese, Blair and MacFarland JJ.A.

April 17, 2007

Limitations -- Minors -- Litigation guardian -- Minor injured in motor vehicle accident which occurred before new Limitations Act came into effect -- Transition provisions in s. 24(5) of new Limitations Act applying -- "Former limitation period" for purposes of s. 24 to be reckoned from date minor attained age of majority -- "Former limitation period" not having expired when new Act came into effect -- Provisions of s. 9 of new Act not available to potential defendant -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 9, 24.

Limitations -- Practice -- Potential defendants bringing motion under s. 9 of new Limitations Act for appointment of litigation guardian for minor in respect of whom no action had yet been commenced -- Motion judge making order sought but order set aside on appeal on basis that s. 9 was not available to potential defendants in circumstances -- Sealing of documents filed on motion not appropriate -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 9.

Under s. 9 of the Limitations Act, 2002 (the "new Act"), a potential defendant may have a litigation guardian appointed for a potential minor plaintiff, and that appointment can cause the limitation period to begin to run immediately, instead of when the minor reached the age of majority, as was the case under the former Limitations Act, R.S.O. 1990, c. L.15 (the "former Act"). A was seriously injured in a motor vehicle accident in October 1999. A number of lawsuits were commenced as a result of the accident, but no action had yet been commenced by A. The insurer of one of the defendants brought a motion pursuant to s. 9(2) of the new Act for an order appointing a litigation guardian for A. The motion was granted. A's mother appealed.

Held, the appeal should be allowed.

The transition provisions in s. 24 of the new Act applied. The conditions in s. 24(2) were met as A's claim was based on an accident which took place before January 1, 2004, and no proceeding in respect of A's claim had been commenced. For the purpose of determining whether the "former limitation period" expired before January 1, 2004, "former limitation period" was not to be strictly interpreted as meaning, in this case, the two-year limitation period in the Highway Traffic Act, R.S.O. 1990, c. H.8, taken in isolation from s. 47 of the former Act, which had the effect of postponing the running of the limitation period in the case of a minor until the minor reached the age of majority. Rather, "former limitation period" was to be interpreted so that the limitation period was to be reckoned from the date when A attained the age of majority. Accordingly, s. 24(5) governed [page2 w]hether the former or the new Act applied to A's claim. In accordance with s. 24(5)2 of the new Act, the former limitation period applied, and s. 9 of the new Act was not available for use by the respondents.

The documents arising from the motion ought not to be sealed, despite the fact that the motion judge did not have the power under s. 9 of the new Act to make the order. The respondents had the right to make the motion, if only to have a determination as to the applicability of s. 9. It followed that the court had the right to hear it and to receive any evidence filed in relation thereto. A motion is a legal proceeding. Thus, the evidence was produced in a legal proceeding, even though no proceeding had been commenced with respect to A. Documents filed in a civil proceeding are normally available to the public, pursuant to s. 137(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 137(2) of the Courts of Justice Act gives the court the authority to make a sealing order, but it is up to the person seeking the sealing order to demonstrate a public interest that outweighs the public interest in openness. The appellant had failed to provide evidence to meet that burden.

APPEAL from the order of Karam J. of the Superior Court of Justice, dated August 4, 2006, amended and made effective September 8, 2006, granting a motion appointing a litigation guardian for a minor.

Cases referred to CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 41398 (ON CA), 59 O.R. (3d) 18, [2002] O.J. No. 1141, 163 C.C.C. (3d) 321, 17 C.P.C. (5th) 252, 5 C.R. (6th) 189 (C.A.), apld Papamonolopoulos v. Toronto (City) Board of Education (1986), 1986 2688 (ON CA), 56 O.R. (2d) 1, [1986] O.J. No. 753, 16 O.A.C. 249, 30 D.L.R. (4th) 269, 38 C.C.L.T. 82, 10 C.P.C. (2d) 176 (C.A.) (sub nom. Papamonolopoulos v. Board of Education of Toronto); TD Insurance Home and Auto v. Sivakumar (2006), 2006 17246 (ON CA), 80 O.R. (3d) 671, [2006] O.J. No. 2053, 211 O.A.C. 316, 38 C.C.L.I. (4th) 27, 29 C.P.C. (6th) 359 (C.A.), consd Other cases referred to Hare v. Hare (2006), 2006 41650 (ON CA), 83 O.R. (3d) 766, [2006] O.J. No. 4955, 277 D.L.R. (4th) 236, 218 O.A.C. 164 (C.A.); Murphy v. Welsh, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, 14 O.R. (3d) 799n, 106 D.L.R. (4th) 404, 156 N.R. 263, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1 (sub nom. Stoddard v. Watson); York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., [2007] O.J. No. 240, 220 O.A.C. 311, 59 C.L.R. (3d) 15, 30 M.P.L.R. (4th) 161, 2007 ONCA 49, supp. reasons [2007] O.J. No. 1143, 59 C.L.R. (3d) 29, 2007 ONCA 225 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137 Highway Traffic Act, R.S.O. 1990, c. H.8 Limitations Act, R.S.O. 1990, c. L.15, s. 47 Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 6, 9, 24 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 36 [as am.]

John B. Gorman, Q.C., for appellants Nathalie Miron and Minor Alexandra Miron-St-Georges. Michael P. O'Hara, for respondent Richard St-Georges. [page3 ]

The judgment of the court was delivered by

[1] GILLESE J.A.: -- Section 9 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "new Limitations Act") enables a potential defendant to have a litigation guardian appointed for a potential minor plaintiff. That appointment can cause the limitation period to begin to run immediately.

[2] The question raised by this appeal is whether s. 9 is available to a potential defendant when the minor's claim arose before January 1, 2004, the day on which the new Limitations Act came into effect.

Background

[3] Nathalie Miron and her then three-and-a-half-year-old daughter, Alexandra Miron-St-Georges, were injured in a motor vehicle accident on October 22, 1999. Nathalie and Alexandra were passengers in a vehicle owned and operated by Richard St- Georges, Nathalie's husband and Alexandra's father, which collided head-on with a motor vehicle owned by Marcel Lemieux and operated by Luce Lemieux. Sadly, Luce Lemieux died in the accident and Alexandra sustained a severe brain injury.

[4] Alexandra continues to suffer from the effects of the brain injury. An expert neuropsychologist has told Nathalie that it is too soon to determine whether Alexandra's condition will improve or deteriorate over time.

[5] No legal proceeding has yet been commenced by Alexandra. A number of other lawsuits have been commenced as a result of the accident. It is possible that the insurance policies that might be a source of compensation to Alexandra will not cover all of the claims currently being advanced by all of the injured parties.

[6] Richard St-Georges' insurers are defending the actions arising from the accident. They brought a motion, pursuant to s. 9(2) of the new Limitations Act, for an order to appoint the Office of the Children's Lawyer as the litigation guardian for Alexandra. Nathalie Miron delivered a responding affidavit, on which she was cross-examined.

[7] On August 4, 2006, Karam J. made the order as requested but adjourned the motion to allow argument on who should be appointed as litigation guardian. That order was not released by the court. [See Note 1 below] [page4 ]

[8] On September 8, 2006, Valin J. appointed a particular individual as litigation guardian and changed the effective date of Karam J.'s order to September 8, 2006 (the "Order"). The effect of the Order is that the limitation period in respect of Alexandra's claim begins to run on September 8, 2006.

[9] Absent the Order, pursuant to s. 47 of the former Limitations Act, R.S.O. 1990, c. L.15, the limitation period does not begin to run until Alexandra reaches the age of majority. See Papamonolopoulos v. Toronto (City) Board of Education (1986), 1986 2688 (ON CA), 56 O.R. (2d) 1, [1986] O.J. No. 753 (C.A.) and Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83. Thus, under the former Limitations Act, Alexandra has two years after attaining the age of majority within which to commence an action.

[10] Nathalie Miron appeals the Order. [See Note 2 below] She wishes to overturn the appointment in order to delay the running of the limitation period.

The Issues

[11] The appellant raises two issues:

(1) Are the respondents entitled to the benefit of s. 9 of the new Limitations Act?

(2) If not, ought the documents arising from the motion below to be sealed?

The Relevant Provisions of the New Limitations Act

[12] As frequent reference is made to various provisions of the new Limitations Act, those provisions are set out now.

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. . . . . .

5. The limitation period established by section 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. . . . . . [page5 ]

9(1) In this section,

"potential defendant" means a person against whom another person may have a claim but against whom the other person has not commenced a proceeding in respect of the claim;

"potential plaintiff" means a person who may have a claim against another person but has not commenced a proceeding against that person in respect of the claim.

(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.

(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: ... . . . . .

24(1) In this section,

"effective date" means the day on which this Act comes into force;

"former limitation period" means the limitation period that applied in respect of the claim before the coming into force of this Act.

(2) This section applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date.

(3) If the former limitation period expired before the effective date, no proceeding shall be commenced in respect of the claim. . . . . .

(5) If the former limitation period did not expire before the effective date and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:

1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.

2. If the claim was discovered before the effective date, the former limitation period applies.

Is Section 9 of the New Limitations Act Available?

[13] The accident occurred before the new Limitations Act became effective on January 1, 2004. To decide whether the respondents had the right to an order pursuant to s. 9 of the new Limitations Act, it must be determined whether the new Limitations Act applies. When making that determination, in circumstances such as those in this case, the usual starting point is the transition provisions in s. 24 of the new Limitations Act. After all, [page6 ]the very purpose of transition provisions is to deal with precisely the situation in which these parties find themselves.

[14] The respondents argue, however, that the transition provisions in s. 24 of the new Limitations Act are inapplicable. Their argument runs as follows. Section 24 refers to the "former limitation period", that is, the limitation period that applied to the claim before the new Limitations Act came into force. The former limitation period for Alexandra's claim was two years: the Highway Traffic Act, R.S.O. 1990, c. H.8. The respondents contend that s. 47 of the former Limitations Act was only a rule for postponement of the operation of the limitation period and not a limitation period or part of the limitation period. Consequently, they argue, s. 24 of the new Limitations Act did not apply and they were free to rely on s. 9 of the new Limitations Act.

[15] This court has recently considered the transition provisions in the new Limitations Act. See Hare v. Hare (2006), 2006 41650 (ON CA), 83 O.R. (3d) 766, [2006] O.J. No. 4955, 218 O.A.C. 164 (C.A.), and York Condominium Corp. No. 382 v. Jay-M Holdings Ltd., 2007 ONCA 49, [2007] O.J. No. 240, 220 O.A.C. 311 (C.A.). In accordance with this court's jurisprudence, to determine whether a claim that arose prior to January 1, 2004, is governed by the former or the new Limitations Act, the transition provisions in s. 24 of the new Limitations Act must be applied, beginning with s. 24(2). [See Note 3 below]

[16] There is no question but that the conditions in s. 24(2) are met: (1) Alexandra's claim is based on the accident, (2) the accident took place before January 1, 2004, and (3) no proceeding in respect of Alexandra's claim has been commenced. Consequently, s. 24 applies.

[17] In this case, it must then be decided which of s. 24(3) or s. 24(5) applies. That matter is dependent on whether the "former limitation period" expired before January 1, 2004. If so, s. 24(3) operates to bar Alexandra from bringing a proceeding in respect of her claim. If not, s. 24(5) governs whether the former or the new Limitations Act applies to Alexandra's claim. It is only if the new Limitations Act applies that the respondents would have been entitled to an order pursuant to s. 9 of that Act.

[18] The appellant argues that the "former limitation period" is to be interpreted in accordance with Papamonolopoulos and so is to be reckoned from the date when Alexandra attains the age of majority. Thus, the former limitation period has not expired, the former Limitations Act applies and the respondents could not have recourse to s. 9 of the new Limitations Act. [page7 ]

[19] As discussed above, the respondents argue that the former limitation period was two years.

[20] I accept the appellant's argument in respect of the meaning to be given to "former limitation period". To take the strict interpretation of the words "former limitation period" urged by the respondents would lead to the conclusion that the former limitation period expired in relation to Alexandra's claim before the new Limitations Act even came into effect. Why? Because, on that interpretation, the former limitation period was two years in duration. As the accident occurred in October of 1999, the two-year limitation period would have expired in October of 2001. Section 24(3) of the new Limitations Act provides that if the former limitation period expired before January 1, 2004, no proceeding can be commenced in respect of that claim. Thus, acceding to the respondents' position would result in the new Limitations Act having the effect of eliminating Alexandra's claim before the new legislation came into effect and even though the then-governing law permitted it to continue.

[21] It would take very clear language on the part of the legislature to abrogate existing rights before such a construction would be warranted. There is no suggestion in the new Limitations Act that minors in Alexandra's position were to be stripped of their rights to commence legal proceedings without warning and for no reason. This absurd result is avoided if the words "former limitation period" are interpreted in accordance with Papamonolopoulos and the limitation period does not begin to run until a minor reaches the age of majority.

[22] Accordingly, in my view, s. 24(5) applies as:

(1) the former limitation period did not expire before January 1, 2004,

(2) pursuant to s. 4 of the new Limitations Act, a two-year limitation period would apply [See Note 4 below] had the accident taken place on or after January 1, 2004, and

(3) Alexandra's claim was discovered at the time of the accident, a date before January 1, 2004.

[23] In accordance with s. 24(5)2 of the new Limitations Act, the "former limitation period applies" and s. 9 of the new Limitations Act was not available for use by the respondents. [page8 ]

Ought the Documents To Be Sealed?

[24] The appellant asks that, if successful on the first issue, the evidence obtained pursuant to the motion below, including her responding affidavit and the transcript of her cross-examination thereon, be permanently sealed and not available to any person. She argues that because the Order was made without authority, the evidence was not produced in a legal proceeding and it ought not, therefore, to be available in future court proceedings. In making this argument, the appellant relies on this court's decision in TD Insurance Home and Auto v. Sivakumar (2006), 2006 17246 (ON CA), 80 O.R. (3d) 671, [2006] O.J. No. 2053 (C.A.).

[25] I do not agree that the evidence in question was not produced in a legal proceeding.

[26] I accept that Alexandra has commenced no legal proceeding. Moreover, as will be apparent from the foregoing reasons, I accept that the motion judge did not have the power, pursuant to s. 9 of the new Limitations Act, to make the Order. As I have explained, the new Limitations Act does not apply to Alexandra's claim. However, just because Alexandra has commenced no action and the Order was made without authority, it does not necessarily follow that the evidence submitted on the motion was obtained without legal authority.

[27] The respondents brought the motion below in order to have a litigation guardian appointed pursuant to s. 9 of the new Limitations Act. However, it is important to note that there were two aspects to that motion. The first was a question of application -- did the new Limitations Act apply in the circumstances of this case? The second question was dependent on the answer to the first: if the new Limitations Act did apply, ought the motion to be granted? Section 9(2) expressly provides that a potential defendant "may make an application or a motion to have a litigation guardian appointed for a potential plaintiff". Thus, it is apparent that the respondents had the right to make the motion if only to have a determination as to the availability of s. 9. It follows that the court had the right to hear it and to receive any evidence filed in relation thereto. A motion is a legal proceeding. Thus, in my view, the evidence was produced in a legal proceeding.

[28] TD Insurance is of no assistance to the appellant. In TD Insurance, Borins J.A. held that a judge did not have jurisdiction to order that evidence be preserved prior to the commencement of a proceeding because Rule 36 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the authority for making such an order, specifies that it applies only when a proceeding has already been commenced. In the present case, as I have explained, although no [page9 l]egal proceeding has been commenced by Alexandra, the respondents were entitled to bring the motion in an attempt to obtain a s. 9 order. In that sense, a proceeding had been commenced.

[29] Documents filed in a civil proceeding are normally available to the public, pursuant to s. 137(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 137(2) of the Courts of Justice Act gives the court the authority to make a sealing order. However, as Goudge J.A. reiterated in the recent case of CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 41398 (ON CA), 59 O.R. (3d) 18, [2002] O.J. No. 1141 (C.A.), court records should be open to the public and public accessibility should be curtailed only with the greatest reluctance. Although these comments were made in the context of access to documents in a criminal proceeding, the same principles inform access to documents in a civil proceeding: public accessibility fosters public confidence in the integrity of the court system and is to be curtailed only in compelling circumstances.

[30] It is up to the person seeking the sealing order to demonstrate a public interest that outweighs the public interest in openness. The appellant has failed to provide evidence to meet that burden. She argues that a sealing order is necessary in order to avoid any potential prejudice to Alexandra, should Alexandra bring a claim in the future. The possibility of such prejudice is insufficient, in my view, to amount to evidence of a public interest that outweighs the presumption of openness in court proceedings.

Disposition

[31] Accordingly, I would allow the appeal and set aside the Order. I would not, however, make a sealing order. As the appellant has been largely successful, she is entitled to her costs here and below which I would fix at $10,000, all inclusive.

Appeal allowed.

Notes

Note 1: If reasons for decision were given for making the order, they do not appear in the record. The endorsement on the motion record makes no reference to reasons having been given.

Note 2: Although referred to as an appellant in the parties' factums, Alexandra is not a party to any action.

Note 3: See Hare at paras. 13-15.

Note 4: Subject to s. 6 which provides that the limitation period in s.4 does not run while the person with the claim is a minor and is not represented by a litigation guardian.