Court of Appeal for Ontario

Citation: Grewal v. Ivany, 2008 ONCA 687

Date: 2008-10-10

Docket: C48237

Between:

Gurcharn Singh Grewal, Baljot Grewal by her litigation guardian, Gurcharn Singh Grewal, Gurdeep Grewal, Rajveer Grewal and Gursuraj Grewal, by their litigation guardian, Gurcharn Singh Grewal

Appellants (Plaintiffs)

and

Keith Ivany, Lisa Warran and GMAC Leasco Ltd.

Respondents (Defendants)

Before: Doherty, Cronk and MacFarland JJ.A.

Counsel:

William G. Scott, for the appellants

Stephen G. Ross and Marie Hynes, for the respondents

Heard: October 1, 2008

On appeal from the order of Justice Ellen MacDonald of the Superior Court of Justice dated December 4, 2007.

By the Court:

[1] The appellants Gurcharn Singh Grewal (“Gurcharn”) and his daughter Baljot Grewal (“Baljot”), a minor, were involved in a motor vehicle accident on December 11, 1999. As a result of the accident, Gurcharn allegedly sustained serious personal injuries, including soft tissue injuries to his neck and lower back. Apart from a brief return to the workforce, he has been unable to work since the date of the accident. It is alleged that Baljot was also severely injured in the collision.

[2] On September 4, 2002, the appellants commenced a negligence action against the respondents in which Gurcharn and Baljot sought non-pecuniary and pecuniary damages for their injuries and all the appellants claimed damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA claims”).

[3] The respondents moved for summary judgment dismissing the appellants’ claims on the basis that they were statute-barred due to the expiry of the two-year limitation period established under s. 206 of the Highway Traffic Act, R.S.O. 1990, c. H.8. The motion judge accepted this assertion and, by order dated December 4, 2007, dismissed the appellants’ action in its entirety. She concluded that no genuine issue for trial arose because, in her view, by about May 19, 2000, Gurcharn “knew of the material facts that he needed to know to understand that he had a cause of action” against the respondents. Consequently, the two-year limitation period commenced to run on May 19, 2000 and had expired before the appellants’ action was initiated. The appellants appeal the dismissal of their action.

[4] In our view, the motion judge’s decision cannot stand for several reasons. First, it is common ground among the parties that the motion judge erred by dismissing Baljot’s claims and the FLA claims. We agree.

[5] Second, we conclude that the motion judge also erred by dismissing Gurcharn’s claim for non-pecuniary damages on the basis that no genuine issue for trial exists regarding the expiry of the limitation period.

[6] Gurcharn’s non-pecuniary damages claim is governed by Bill 59, the motor vehicle insurance scheme applicable at the time of the accident. Under Bill 59, claims for non-pecuniary damages arising from a motor vehicle accident cannot be advanced unless a specific ‘threshold’ is met, that is, unless an injured tort victim suffers “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function” as a result of the accident in question. This threshold for a non-pecuniary damages claim, together with the nature of Gurcharn’s alleged injuries, which include soft tissue injuries, means that medical evidence of the severity and likely duration of Gurcharn’s injuries is especially important to the determination of the commencement date of the limitation period applicable in this case.

[7] In support of her decision that the ‘discoverability’ date for Gurcharn’s non-pecuniary damages claim was May 19, 2000, the motion judge stressed Gurcharn’s own evidence on cross-examination to the effect that, in the summer of 2000, he did not know when or if his neck pain would ever end. The motion judge viewed this testimony as constituting an admission that, by May 19, 2000, Gurcharn “knew every material fact that he needed to know in order to understand that he had a cause of action”. Respectfully, this conclusion is unsupportable. The testimony in question merely indicated that, in the summer of 2000, Gurcharn was uncertain about his prognosis. This is insufficient to ground a May 2000 discoverability date.

[8] The record also indicates that in the spring of 2000 and again in June 2000, three independent medical assessments of Gurcharn suggested that he would make a full recovery or that he was not substantially disabled. Based on this evidence, there is a live issue for trial concerning whether the threshold for a non-pecuniary damages claim under Bill 59 was met in May 2000.

[9] The motion judge further relied on a notation in a medical chart entry prepared by Gurcharn’s family physician on March 23, 2000, which referenced “chronic pain”, as demonstrating that Gurcharn knew, by May 19, 2000, that he had a cause of action in negligence for non-pecuniary damages against the respondents. The motion judge viewed this notation as “pivotal” to the determination of the date on which Gurcharn knew, or had to have known, that he had sustained compensable non-pecuniary damages. In effect, the motion judge regarded the notation as evidencing a firm diagnosis in March 2000 of a permanent chronic pain disorder.

[10] We disagree. The meaning of the notation in question is unclear. On this record, most of the contents of the chart entry are undecipherable and no explanation of the notation or other contents of the chart entry is available. Moreover, it appears that no direct mention is made of disability – permanent or otherwise – in the chart entry.

[11] In all these circumstances, there is a genuine issue for trial as to when Gurcharn learned or through the exercise of reasonable diligence ought to have learned that he had a cause of action against the respondents for general injuries under the threshold. A trial is required to determine this issue.

[12] We reach a similar conclusion regarding Gurcharn’s claim for pecuniary damages.

[13] Although the respondents rely heavily on the decision of this court in Chenderovitch v. John Doe, 2004 CanLII 20029 (ON CA), [2004] O.J. No. 681 to argue that Gurcharn’s pecuniary damages claim is statute-barred, that case is not dispositive of this issue. In Chenderovitch, the plaintiff abandoned her pecuniary damages claim prior to the summary judgment motion at issue. Thus, it was unnecessary for this court to determine whether her pecuniary damages claim was foreclosed by the expiry of a limitation period.

[14] In addition, in this case, the nature and extent of Gurcharn’s pecuniary damages claim are unclear. Perhaps for this reason, the motion judge’s consideration of this issue was terse.

[15] We conclude that the issue whether Gurcharn’s pecuniary damages claim is statute-barred is best resolved on a full record. This will ensure that any consideration of this important issue by this court will be informed by a reasoned analysis in the courts below.

[16] For the reasons given, the appeal is allowed. The appellants are entitled to the costs of this appeal fixed, by agreement of counsel, in the amount of $7,500, inclusive of disbursements and G.S.T. If, in light of this decision, the parties are unable to agree on the costs of the summary judgment motion, the Registrar of this court may be contacted, within fifteen days of these reasons, regarding the delivery of brief written costs submissions by both parties concerning that motion.

“Doherty J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”