Court of Appeal for Ontario

Docket: C64608

Judges: Rouleau, Roberts and Fairburn JJ.A.

Parties

Between

Johan Bergen Jr. (Appellant) Plaintiff

and

The Estate of Jake Fast, deceased, and the Estate of Frank Weibe, deceased, and Johan Bergen Sr. (Respondents) Defendants

and

Aviva Insurance Company of Canada added by Order pursuant to Section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8 (Respondent) Third Party

Counsel

David B. Williams and M. Mana Khami, for the appellant

Christopher J. Prince, for the respondent third party

Hearing and Lower Court Decision

Heard: May 11, 2018

On appeal from: the judgment of Justice Peter B. Hockin of the Superior Court of Justice dated October 27, 2017, with reasons reported at 2017 ONSC 6328.

Reasons for Decision

[1] Introduction

The appellant appeals from the dismissal of his action against the defendant, Johan Bergen Sr. On appeal, this case turns principally on the application of the presumption under s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] Facts of the Accident

The appellant was one of three occupants involved in a single motor vehicle accident on February 5, 2012. Two of the occupants tragically died of their injuries. The appellant was also seriously injured.

[3] Commencement of Action

The appellant commenced an action on January 31, 2014, against the deceased defendants' estates but not, at that time, against Johan Bergen Sr. Johan Bergen Sr. is the appellant's father and owner of the vehicle involved in the accident that gives rise to the appellant's claim. In the original statement of claim, the appellant was erroneously described as the owner of the vehicle.

[4] Addition of Father as Defendant

On July 31, 2014, the appellant's counsel learned from counsel for the estate of Jake Fast that the owner of the vehicle was Johan Bergen Sr. and not the appellant. On October 28, 2014, the appellant obtained an ex parte order adding Johan Bergen Sr. as a defendant.

[5] Motion for Summary Judgment

The third party respondent, Aviva, subsequently brought a successful motion for summary judgment to dismiss the action against Johan Bergen Sr. on the basis that it was statute-barred. The motion judge determined that there was no genuine issue requiring a trial on the limitation period issue. Specifically, he found that the appellant had failed to put his "best foot" forward and rebut the statutory presumption under s. 5(2) of the Limitations Act, 2002, that he knew of the matters referred to in clause 5(1)(a) of the Act on the day the act or omission on which his claim is based took place.

[6] Statutory Framework

Section 5(1) of the Limitations Act, 2002, provides as follows:

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) 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 matters referred to in clause (a).

[7] Appellant's Submission on Appeal

The appellant's principal submission on appeal is that the motion judge erred in his treatment of the discoverability of the appellant's claim against the owner of the vehicle, Johan Bergen Sr. Specifically, the appellant submits that he did not reasonably know that an action against his father was the appropriate remedy under s. 5(1)(a)(iv) of the Limitations Act, 2002, until his counsel received notice from Aviva that it would take an off coverage position because the occupants of the motor vehicle were intoxicated at the time of the accident. It was then that the ownership of the vehicle became a live issue and that the limitation period started to run.

[8] Court's Response

We do not accept these submissions.

[9] Statutory Presumption of Discoverability

It is well established that a limitation period begins to run on the date that the claim was discovered. The statutory presumption of the discoverability of the claim provided for under s. 5(2) was explained by this court in Fennell v. Deol, 2016 ONCA 249, at para. 21, as follows:

Section 5(1)(a) considers when the person with the claim had actual knowledge of the material facts underlying the claim. Unless the contrary is proved under s. 5(2), the person is presumed to have known of the matters in s. 5(1)(a)(i) through (iv) on the date of the events giving rise to the claim.

[10] Application of the Presumption

In our view, the notice from Aviva of its off coverage position is irrelevant because the identity of the owner and the possibility of a claim against him were presumed known as at the date of the accident. Under the statutory presumption of s. 5(2), the appellant was presumed to know who the owner of the vehicle was and that an action was an appropriate remedy against him. The appellant bore the onus of leading evidence to displace the statutory presumption of the date on which he discovered his claim against Johan Bergen Sr.: Miaskowski v. Persaud, 2015 ONCA 758, at para. 27. He failed to do so.

[11] Failure to Rebut the Presumption

In response to Aviva's motion for summary judgment, no evidence was filed that had the effect of rebutting the presumption that as at the date of his accident, the appellant knew he was not the owner of the motor vehicle but his father was. In particular, there was no evidence from either the appellant or his father, Johan Bergen Sr., both of whom were clients of the law firm when the appellant's claim was issued. Given the appellant's obligation to put his "best foot forward" in response to Aviva's motion for summary judgment and his onus to rebut the presumption under s. 5(2), the motion judge was entitled to assume that there would be no additional evidence at trial to assist the appellant on these issues.

[12] Knowledge of Appropriate Remedy

Absent any evidence rebutting the presumption, the appellant and his counsel (as the appellant's agent) were presumed to know who owned the vehicle prior to the issuance of the statement of claim. Accordingly, they were also presumed to know at that time that the owner was a potential defendant and that an action against the owner would therefore be an appropriate remedy to recover damages for the appellant's injuries. That it was not strictly necessary to add the owner of the vehicle as a defendant at the time the statement of claim was issued does not determine whether an action against the owner was an appropriate remedy. As the motion judge stated, "[t]here could never be an argument that the appropriate remedy against the owner of the vehicle was anything other than to include him as a defendant in the action when the Statement of Claim was issued".

[13] Conclusion

In our view, the motion judge properly took into account all the circumstances relevant to the issue of discoverability in this case. We see no error in his decision and accordingly dismiss the appeal.

[14] Costs

Aviva is entitled to its costs of the appeal in the agreed upon amount of $12,500, inclusive of disbursements and applicable taxes.

"Paul Rouleau J.A."

"L.B. Roberts J.A."

"Fairburn J.A."