CITATION: Fekrta v. Siavikis, 2009 ONCA 537

DATE: 20090630

DOCKET: C49617

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Lang JJ.A.

BETWEEN:

Atenaf Fekrta

Plaintiff (Appellant)

and

Georgios Siavikis, Jawwad Umer, Sandra Bratty and Lombard Canada Insurance Company

Defendants (Respondents)

Sergio Grillone, for the appellant

Louise A. James, for the respondents

Heard and endorsed orally: June 24, 2009

On appeal from an order Justice Susan G. Himel of the Superior Court of Justice dated October 29, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant was injured in a three-car collision on April 23, 2003. According to the accident report, which is dated May 21, 2003, the vehicle she was driving was struck from the rear by a car owned by Ms. Bratty and driven by Mr. Umer. The Umer-Bratty vehicle, in turn, was struck from the rear by a car driven by Mr. Siavikis.

[2] On June 15, 2005, the appellant commenced an action against Mr. Siavikis in which she alleged that she sustained permanent and serious injuries in the accident. Subsequently, on October 16, 2007, the appellant obtained a master's order allowing her to add the respondents Umer and Bratty to that action.

[3] On October 27, 2008, Himel J. granted summary judgment dismissing the action against the respondents because there was no genuine issue for trial that the limitation period under s. 206 of the Highway Traffic Act, R.S.O. 1990, c. H.8, had expired. The appellant appeals from that decision.

[4] Given that the accident occurred prior to January 1, 2004, the date on which the Limitations Act, 2002, S.O. 2002, c. 24 (the "new Limitations Act), came into force, and that no proceeding against the respondents was commenced until after that date, s. 24 of the new Limitations Act governs the issue of what limitation period applies.

[5] However, whether this case is governed by s. 206 of the Highway Traffic Act or by the new Limitations Act, the applicable limitation period is two years from the date on which the appellant discovered her claim.

[6] In the face of undisputed evidence that the respondents were identified in the accident report, that a paralegal acting on behalf of the appellant put the respondents on notice of a potential claim on June 17, 2004, and that the appellant commenced action against Mr. Siavikis on June 15, 2005 alleging permanent and serious injuries, there is no genuine issue for trial concerning whether the appellant had all the information necessary to discover her claim against the respondents by June 15, 2005 at the latest. Further, there is no genuine issue for trial concerning whether the limitation period expired prior to the master’s order.

[7] The appellant does not contend that the master's order barred a limitation defence and we see no basis for such an assertion.

[8] The appeal is therefore dismissed.

[9] Costs to the respondents are fixed in the amount of $3,000 inclusive of disbursements and G.S.T.