COURT OF APPEAL FOR ONTARIO

CITATION: Baig v. Mississauga, 2020 ONCA 697

DATE: 20201104

DOCKET: C67504

Roberts, Trotter and Thorburn JJ.A.

BETWEEN

Mirza Habib Baig

Plaintiff

(Appellant)

and

The Corporation of the Town of Mississauga

Defendant

(Respondent)

Mirza Habib Baig, acting in person

Robert Ryan, for the respondent

Heard: October 28, 2020 by videoconference and teleconference

On appeal from the order entered on August 30, 2019 by Justice Gisele M. Miller of the Superior Court of Justice with reasons at 2019 ONSC 5111.

REASONS FOR DECISION

Introduction

[1] On May 21, 2013, Mr. Baig fell off his bicycle and injured himself. More than four years later, on September 1, 2017, he issued a claim against The Corporation of the Town of Mississauga (“Mississauga”), seeking damages.

[2] Mississauga moved for summary judgment, alleging that the two-year limitation period under s. 4 of the Limitations Act, S.O. 2002, c. 24, Sch. B. had expired. The motion judge determined that, on the materials before her, there was no genuine issue for trial. The motion was granted and Mr. Baig’s action was dismissed.

[3] Mr. Baig appeals from that decision. For the reasons below, the appeal is dismissed.

Factual Summary and Chronology

[4] Mr. Baig fell off his bike after travelling across a pedestrian bridge. He went to the hospital that same day, where he was diagnosed with a broken finger and superficial facial abrasions.

[5] Eight days later, on May 29, 2013, Mr. Baig submitted a Claim Report to Mississauga. He described his injuries: “Facial lacerations, concussion/temporary blackout, broken bone in finger.” Mr. Baig sought compensation and recommended remediation of the hazard that led to his fall. On the form that he completed, it stated: “NOTE: THERE IS A 10 DAY NOTICE FOR PROVIDING THE CITY WITH NOTICE OF CERTAIN TYPES OF CLAIMS AND A TWO YEAR LIMITATION period for bringing an action in respect to all claims.”

[6] Mississauga assigned an adjuster to investigate the claim. However, Mr. Baig refused to cooperate with the adjuster, apparently based on legal advice. On May 5, 2014, a claims analyst sent Mr. Baig a letter advising him that he had unsuccessfully attempted to contact him many times and that, if Mr. Baig was not in contact within 30 days, his file would be closed. This letter also advised Mr. Baig of the limitation period. There was no further communication and the file was closed in June of 2014.

Mr. Baig’s Arguments at the Summary Judgment Motion

[7] Mr. Baig represented himself on the summary judgment motion. He advanced two arguments: (1) he did not discover the extent of his injuries until years after the accident; and (2) he lacked the capacity to commence litigation within the limitation period due to a disability and a compromised mental state. The motion judge rejected Mr. Baig’s arguments.

Discoverability

[8] Mr. Baig was permitted to amend his Statement of Claim to allege that, between late 2016 and early 2019, he discovered the following injuries arising from his accident: a laceration to his lip would not improve with surgery; he would not regain full use of his previously broken finger because of osteo-arthritis; and he suffers from carpal tunnel syndrome, moderate-severe depression, post-concussion syndrome, and osteo-arthritis in his neck.

[9] The motion judge found that Mr. Baig discovered the material facts of his claim as of May 22, 2013 (the day he went to the hospital), or at the latest on May 29, 2013 (the day he submitted his claim to Mississauga). She held that the subsequent discovery of the severity of his injuries did not extend the limitation period.

[10] The motion judge made no error. As this court held in Liu v. Wong, 2016 ONCA 366, leave to appeal refused [2016] S.C.C.A. No. 264, at para. 7: “the law is quite well established that it is knowledge of the material facts necessary to support the cause of action that triggers the commencement of the litigation period. Knowledge of the extent of the damages is not necessary.”

[11] Mr. Baig was aware of the necessary facts to support a claim against Mississauga almost immediately after his fall. This was confirmed by the submission of his claim for compensation from Mississauga eight days later. He was twice advised of the two-year limitation period related to his claim for compensation. That his injuries appear to have worsened did not extend the limitation period.

[12] We dismiss this ground of appeal.

Capacity

[13] Mr. Baig claimed that he lacked the capacity to commence an action against Mississauga because he was “under a disability.” He relied on evidence that he receives a disability pension from the Province of Ontario. He also relied on academic articles filed with the motion judge.

[14] The motion judge accepted that, while Mr. Baig had proffered evidence of a mental illness, there was no evidence that it rose to the level of incapacity for the purposes of s. 7 of the Limitations Act. After reviewing the chronology of events set out above, and noting that Mr. Baig had received legal advice on the issue, the motion judge held at paras. 42-43 of her reasons:

There is a complete absence of any medical evidence to show that Mr. Baig by reason of his mental illness, the injuries suffered from the bicycle crash or his treatment at the hands of the insurance adjuster rendered him incapable within the limitation period. Medical documentation from 2017 and 2018 indicating that Mr. Baig has some cognitive deficits falls well short of establishing that he is now or was incapable during the limitation period.

I note as well that Mr. Baig was articulate and organized in his preparation of and presentation of material to the Court and as well in his submissions. There was nothing in his presentation which caused me to doubt that he had the capacity to commence the action within the limitation period. [Emphasis added.]

[15] In our view, the motion judge correctly applied s. 7 of the Limitations Act. As she observed, under s. 7(2), a plaintiff is presumed to have been capable of commencing a proceeding, unless the contrary is proved on a balance of probabilities: Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 77-78. As the motion judge found, it was not proved in this case.

[16] This ground of appeal is dismissed.

Other Grounds of Appeal and Fresh Evidence Application

[17] Mr. Baig advances other grounds of appeal related to the conduct of the hearing. He also applies to adduce fresh evidence to advance these grounds. As we explain below, the fresh evidence is not admissible on appeal. Even if we were to admit the fresh evidence, it would have no impact on the motion judge’s decision.

(1) The Motion Judge Was Not Biased

[18] Mr. Baig submits that “an apprehension of bias arose from the beginning of the motion being appealed, and continued throughout the rest of the motion.” In his fresh evidence affidavit, Mr. Baig recounted an exchange that he had with the motion judge in court about a report from one of his doctors. According to Mr. Baig, after reading the report, the motion judge looked at him and, in a harsh tone, said, “you’re fine.” Mr. Baig subsequently told his doctor what happened, and he said: “That’s not what I said at all.”

[19] Mr. Baig further submitted that the motion judge was not interested in hearing him and addressed him in a rude manner.

[20] There is no merit to the submission that the motion judge was biased. First, Mr. Baig relies on his own assessment of what happened at the motion. He should have ordered the transcript of the proceedings. Moreover, the statement attributed to his doctor is hearsay and is not receivable as fresh evidence.

[21] Even if Mr. Baig’s description of what happened could be taken at face value, it does not establish a claim of bias. By all accounts, the hearing before the motion judge was lengthy. Mr. Baig had ample opportunity to state his case. The motion judge permitted him to file various documents at the hearing; documents that had not previously been served on Mississauga. Moreover, in the excerpt from the motion judge’s reasons reproduced in para. 14, above, the motion judge acknowledged the helpful manner in which Mr. Baig presented his case.

[22] We dismiss this ground of appeal.

(2) There Was No Breach of R. 15.01(1)

[23] Mr. Baig submits that the motion judge infringed r. 15.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He contends that, being a person under disability, he was entitled to be represented by counsel. As already noted above, the motion judge found that Mr. Baig was able to represent himself in court. Moreover, the issue was not raised with the motion judge, or any of the other judges before whom the motion was spoken to in the eight-month period between the service of the summary judgment motion and the day of the hearing.

[24] We reject this ground of appeal.

(3) The Appellant’s Rights Were Not Breached

[25] Mr. Baig submits that his rights under s. 15 of the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, R.S.O. 1990, c. H.19 were infringed as a result of discrimination based on disability. Mr. Baig has failed to establish any factual basis for this submission and we would not give effect to this ground of appeal.

(4) Anonymizing the Title of Proceedings

[26] In his fresh evidence application, Mr. Baig requests that the title of proceedings be anonymized in order to protect his privacy interests; a request that the motion judge refused. Instead, she sealed some of Mr. Baig’s medical records.

[27] We do not require fresh evidence to address this request. It is within the realm of legal argument. Nonetheless, we would take the same approach as the motion judge and extend the sealing order. There is no legal basis to amend the title of proceedings in the manner that Mr. Baig requests.

(5) Costs

[28] Lastly, Mr. Baig seeks leave to appeal the motion judge’s costs award against him of $980. In our view, there is no basis to set aside this award, which was very reasonable in the circumstances.

Conclusion and Disposition

[29] The appeal from the summary judgment order is dismissed. The application to adduce fresh evidence is dismissed. The application for leave to appeal the costs order is allowed, but the appeal is dismissed.

[30] We award costs of the appeal to the respondent in the amount of $950, inclusive of taxes and disbursements.

“L.B. Roberts J.A.”

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”