Court File and Parties

CITATION: Malenfant v. Lavergne, 2011 ONCA 725

DATE: 20111121

DOCKET: C52375

COURT OF APPEAL FOR ONTARIO

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Jules Malenfant and The Estate of Valerie Malenfant

Plaintiffs (Appellants)

and

Manon Lavergne

Defendant (Respondent)

Counsel: Christopher Arnold, for the appellants Brian Parnega, for the respondent

Heard and released orally: November 15, 2011

On appeal from the judgment of Justice Timothy D. Ray of the Superior Court of Justice, dated June 7, 2010 and the costs endorsement dated June 22, 2010.

ENDORSEMENT

[1] The appellant was injured in a car accident in 1991. He brought this action in 2004. At trial, he submitted that the discoverability principle postponed the running of the two-year limitation period until May 2002. Until then, he contended, he did not know and was incapable of knowing that his injuries from the car accident were serious and permanent and so met the “threshold”.

[2] The trial judge rejected the appellant’s contention. The trial judge concluded that the appellant knew or ought to have known he met the threshold well before May 2002. The appellant challenges the trial judge’s conclusion. However, the trial judge’s conclusion rests on several findings of fact, which were adverse to the appellant’s position. We are not persuaded that these findings are tainted by any palpable and overriding error. They are, therefore, entitled to deference from this court.

[3] At bottom, the appellant rests his case on the medical opinions he received shortly after the accident and on Dr. Judson’s expert evidence concerning cognitive impairment from alcohol and drug use. Of the post-accident opinions, the appellant especially relies on Dr. Wannan’s opinion that he would get better with time. However, Dr. Wannan’s evidence, which was accepted by the trial judge, was that he never communicated this opinion to the appellant.

[4] The trial judge rejected Dr. Judson’s opinion concerning the appellant’s cognitive impairment and its impact, and the trial judge had ample basis for doing so (see paras. 37 and 47 of his reasons). In particular, it was apparent that Dr. Judson’s opinion was based on an incomplete understanding of the appellant’s extensive history of interaction with doctors and others since 1991.

[5] On appeal, we must decide whether it was open to the trial judge to find that a reasonable person with the appellant’s abilities and his circumstances ought to have known of his claim before May 2002 – in other words, that he ought to have known that he had a serious and permanent injury resulting from the 1991 accident. In our view, the trial judge could reasonably make this finding.

[6] The appellant’s own evidence shows that he knew that his injury was serious. He was in constant pain and unable to work. The only remaining questions are whether a reasonable person in these circumstances ought to have known the injuries were permanent and caused by the car accident. We agree with the respondent that the trial judge could reasonably answer these questions yes. Seventeen months after the accident the appellant’s pain was increasing and his treatment was not working. At least by 1999, when he saw Dr. Patterson, he ought to have known his injuries were caused by the car accident and were permanent.

[7] Accordingly, the appeal is dismissed, with costs of $13,500 plus disbursements and applicable taxes.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“Paul Rouleau J.A.”