COURT OF APPEAL FOR ONTARIO
CITATION: Yelda v. Vu, 2014 ONCA 353
DATE: 20140505
DOCKET: C57665
Doherty, Cronk and Hourigan JJ.A.
BETWEEN
Valmire Yelda
Plaintiff (Appellant)
and
Thi Duyen Vu, also known as Peter Vu,
Diane Vu, Selena Vi, also known as Selena Ferreira Vu or, Ines Vu,
Ivo Curzi, and State Farm Mutual Automobile Insurance Co.
Defendants (Respondents)
Don Morris, for the appellant
Chris G. Paliare and Gregory Ko, for the Vu respondents
Stuart Aird, for the respondent Ivo Curzi
Heard: April 25, 2014
On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated August 9, 2013, on a motion for summary judgment and Justice Arrell’s costs judgment, dated September 20, 2013.
By the Court:
I. Introduction
[1] On July 19, 2002, the respondent Selena Ferreira Vu gave her co-worker, the appellant Valmire Yelda, a ride home from work. Enroute, while Ms. Vu was driving and the appellant was sitting in the front passenger seat, the Vu vehicle was struck by a pickup truck driven by the respondent Ivo Curzi. On May 25, 2011, almost nine years later, the appellant sued Selena Vu and Mr. Curzi, together with various of their family members and State Farm Insurance Company (“State Farm”), for damages in the amount of $3.35 million for serious personal injuries allegedly suffered by her in the collision. The action against Diane Vu and the insurance company was subsequently discontinued (Diane Vu) or dismissed (State Farm).
[2] After the exchange of pleadings and the conduct of discoveries, the Vu defendants and Mr. Curzi moved for summary judgment on the basis that the appellant’s action was barred by the expiry of the applicable two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (the “Act”).
[3] The appellant claimed that she suffered a permanent serious impairment of an important physical, mental or psychological function as a result of injuries sustained by her in the motor vehicle accident. She further alleged that she did not discover that her injuries met this threshold for a claim until December 29, 2009, when she learned of the results of an x-ray conducted in November 2009 that identified significant injuries to her back. As a result, the appellant maintained, the applicable two-year limitation period began to run on December 29, 2009 and her May 2011 action was commenced in time.
[4] The motions judge disagreed. He held that on the appellant’s own descriptions of her condition, she should have taken steps to investigate her back pain by 2005 or 2006. Had she done so, she would have known, “at the very least”, in November 2008 that she had a serious and permanent impairment of important physical functions. As a result, the applicable limitation period expired in November 2010, at the latest, and the appellant’s action was statute-barred.
[5] Accordingly, by judgments dated August 9 and September 20, 2013, the motions judge granted the respondents’ summary judgment motions, dismissed the appellant’s action and awarded costs in favour of the respondents.
[6] The appellant appeals from the summary judgment, seeks leave to appeal the motions judge’s costs award and, if leave be granted, appeals against the costs award.
II. Issues
[7] In her factum, the appellant attacked the motions judge’s summary judgment ruling on multiple grounds. However, during oral argument before this court, and before the motions judge, the appellant conceded that this was a suitable case in which to decide the limitations issue by way of summary judgment. As a result, there are only two remaining issues on this appeal:
(1) Did the motions judge err by finding that the appellant ought to have discovered the existence of her potential claim before May 25, 2009?
(2) Did the motions judge err in his discoverability analysis by failing to consider the appellant’s individual characteristics and circumstances?
III. Discussion
(1) Motions Judge’s Discoverability Finding
[8] The record before the motions judge was essentially non-controversial on material issues. There were no contentious facts alleged by any of the parties relating to the threshold for the appellant’s claim under s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, discoverability, and due diligence. Indeed, in support of their limitation argument, the respondents relied almost exclusively on the appellant’s own descriptions of her medical condition found in discovery evidence and various statements she made.
[9] Based on her own evidence, the appellant experienced what she described as “really bad” lower back pain “half the time” each month following the accident. According to the appellant, on occasion between 2002 and 2009 the severity of her pain prevented her from functioning, she was really never pain free at any time, and she struggled with ongoing back pain for ten years following the accident. At all times, the appellant attributed her pain solely to injuries sustained by her in the collision.
[10] However, apart from occasional visits to hospital emergency departments, the appellant took no active steps to investigate what she said was persistent, ongoing back pain from the summer of 2002 until September 2009, when she was referred for x-rays of her lumbar spine. The x-ray was carried out on November 13, 2009 and eventually led to corrective back surgery.
[11] Moreover, throughout the seven-year period between the summer of 2002 and the fall of 2009, the appellant continued to work full time except for a one-year maternity leave from November 2007 to October 2008. Although she attended at various hospital emergency departments on three occasions (March 2005, October 2006 and November 2008), and continued to see family physicians in the normal course, she took no steps to investigate the cause of what she maintained was consistent and debilitating lower back pain.
[12] In holding that a reasonable person would have made the necessary medical investigations before November 2009 and determined the serious and permanent nature of the back injury, the motion judge made the following findings:
(1) it was implausible that a reasonable person would consistently take over-the-counter pain medication for many years for pain she believed was solely caused by the car accident, and yet do nothing to further investigate the cause;
(2) it was implausible that a reasonable person could have pain consistently and “really bad” pain 50 percent of the time and do nothing to investigate the cause;
(3) it was implausible that someone who was unable to function a couple of days per month because of pain would make no investigation; and
(4) it was implausible that a reasonable person would find her pain so bad on three occasions (2005, 2006 and 2008) that she attended an emergency ward for relief and yet would do nothing further to investigate the reasons for her pain, after being told by emergency room doctors that her pain would subside, which was not the case.
[13] The motions judge therefore concluded, given the evidence as a whole, that the appellant ought to have known, well before May 25, 2009, that because of her serious back injury, she had a serious and permanent impairment of her ability to function on a day-to-day basis.
[14] On this record, this critical finding was open to the motions judge. We see no palpable and overriding error in this finding and, thus, there is no basis for appellate intervention: Hryniak v. Mauldlin, 2014 SCC 7, at para. 81.
(2) Consideration of the Appellant’s Individual
Characteristics and Circumstances
[15] Under s. 5(1) of the Act, a claim is discovered on the earlier of the day on which the person with a claim first knew of the existence of the claim and “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the existence of the claim.
[16] The appellant contends that the motions judge erred in his consideration of discoverability under s. 5(1) by failing to take account of her individual characteristics and circumstances. We reject this contention.
[17] The appellant did not adduce any evidence that her particular characteristics and circumstances were such that even if the hypothetical reasonable person should have been aware of the nature of her injury, she could not have discovered her claim prior to November of 2009. Nor was this argument advanced before the motions judge. There was, therefore, no basis for the motions judge to make such a finding.
IV. Disposition
[18] Accordingly, for the reasons given, the appeal from the motions judge’s summary judgment ruling is dismissed. Since the appellant’s motion for leave to appeal the motions judge’s costs order is conditional on success on the main appeal, leave to appeal costs is denied. In the unusual circumstances of this case, the interests of justice do not support any award of the costs of the appeal.
Released: “DD” May 5, 2014
“Doherty J.A.”
“E.A. Cronk J.A.”
“C.W. Hourigan J.A.”