ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-CV-386810-0000
DATE: 20120217
BETWEEN:
WAJID KUDWAH Plaintiff – and – CENTENNIAL APARTMENTS, PRINCESS MANAGEMENT PARTNERSHIP, and MICHAEL EDWARD HALPERIN Defendants
P. Michael Rotondo, for the Plaintiff (responding party)
Chad Leddy, for the Defendants, Centennial Apartments and Princess Management Partnership (moving party)
HEARD: January 4, 2012
LEDERER J.:
[1] This is a motion for summary judgment.
INTRODUCTION
[2] The plaintiff fell and was injured. It is clear that the incident which was the cause of the injury occurred more than two years before the action was commenced. The defendant says that the action was started after the limitation period had expired and should be dismissed. The plaintiff says that the injury, as it appeared at the time of the incident, was de minimus (“so insignificant that a court may overlook it in deciding an issue or case” [1] ) and that, as a result, it was not discovered until sometime later, which is to say, less than two years before the Statement of Claim was issued. On this basis, it is said that the action is not out-of-time and should be left to proceed.
[3] Among the issues to be determined is whether this is a matter that can be determined on a motion of this kind.
FACTS
[4] The plaintiff says that, on June 6, 2007, he slipped on a stairway landing in an apartment building in which he was a tenant. The defendants, Centennial Apartments and Princess Management Partnership, were the owner and manager of the building. The plaintiff says that, after experiencing swelling and irregular pain in his right ankle, on June 11, 2007 (five days after the slip), he sought medical advice. Approximately one month later, on July 7, 2007, the plaintiff visited the same doctor, this time for pain associated with his right ankle, as well as unrelated pain and discomfort to other parts of his body (his face and buttocks). On July 12, 2007, the plaintiff underwent surgery to remove haemorrhoids. The plaintiff says there were complications arising from the surgery and, throughout the remainder of 2007, he experienced “incredible pain to his buttocks”. While recovering from this surgery, up until January of 2008, the plaintiff says he did not experience any indication of injury to his ankle. He believed that he had fully recovered from what he had been told was a “simple strain to his right ankle”. [2] By January of 2008, the plaintiff began to increase his level of activity, such that he again started to experience pain and swelling to his right ankle. He “dismissed these symptoms” on the strength of the medical advice he had received from the doctor he visited in June and July 2007 [3] . In September of 2008, the plaintiff came under the care of a new physician. On July 11, 2009, the plaintiff had an x-ray taken of his right ankle. As a result, he learned that he had sustained a fracture to his right ankle which had not healed. After receiving this information, the plaintiff decided to commence legal proceedings.
[5] Initially, the plaintiff included as a defendant the doctor he had seen in June and July, 2007. By the time this motion was heard, that claim had been dismissed without costs.
ANALYSIS
[6] On its face, the answer to this motion does not seem hard to find. The plaintiff, following the slip, suffered pain. His ankle was swollen. The pain was sufficient, such that five days later he went to a doctor. On this basis, the claim was “discovered” on the day the slip occurred (June 6, 2007) or within a few days thereafter. The Statement of Claim, which relies on the slip as the cause of his difficulties with his ankle, was issued on September 11, 2009. This is more than two years after the slip. On this basis, the action is out of time. The limitation period found in the Limitations Act, 2002, S.O. Chapter 24, Schedule B, s. 4 (two years) applies.
[7] As straightforward as this seems, the plaintiff says this is not the appropriate analysis. He says that the injury, as it appeared on June 6, 2007 and the following days, was so trivial that it may be disregarded. It was de minimus. [4] To put it another way, the plaintiff says that the cause of action was not “discoverable” until the pain and swelling re-occurred in January, 2008.
[8] Is a question as to whether an injury was, at the outset, de minimus susceptible to determination on a motion for summary judgment? “The concept of ‘discoverability’ in large part is a fact driven one.” [5] Effective January 1, 2010, Rule 20 of the Rules of Civil Procedure was amended. The test changed from “no genuine issue for a trial” to “no genuine issue requiring a trial”. The authority of the judge hearing the motion was enhanced to include (1) weighing the evidence; (2) evaluating the credibility of the deponent; and, (3) drawing any reasonable inference from the evidence. [6] With this power, the judge hearing a motion for summary judgment is able to make “evidentiary determinations”. [7] “As a result, a motions judge has an enhanced ability to determine discoverability issues”. [8] But how far does this authority extend? In considering the type of cases that are amenable to summary judgment, the Court of Appeal has recently set out what it referred to as the “full appreciation test”. It states:
…can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? [9]
[9] In setting a context for understanding the parameters for the test, the Court said:
In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. [10]
[10] On the other hand, it observed:
In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues . [11]
[Emphasis added]
[11] In this case, the facts applicable to whether a de minimus test should be applied can be “fully appreciated”. The facts are not in dispute. They come from the plaintiff. In short: he fell; his ankle was swollen and painful; within days he went to see a doctor; he was operated on for reasons not associated with the fall; for approximately six months, he did not use his ankle, but when he did the pain and swelling returned. In the circumstances of this case, a judge is able to fully appreciate the evidence and issues in a way that permits a fair and just adjudication of the dispute. [12] To put it differently, the attributes of the trial process are not necessary to fully appreciate the evidence and the issue. [13]
[12] There is some question as to whether the existence of a de minimus test is the current state of the law. [14] Be that as it may, if it is, it cannot apply here:
• In Vu v. Rubner [15] , a dentist, while examining the teeth of a patient, suddenly started to pry at a tooth with what the Statement of Claim alleged was excessive force. The examination took place on April 1, 2004. The patient commenced an action on August 25, 2006; clearly beyond the two-year limitation period. The patient said that, subsequent to the examination, toward the end of November, 2004, she started to feel pain around the tooth which the dentist had pried. It was argued that the injury on April 1, 2004 was de minimus and that the cause of action was only discovered in November. This being so, the action, having begun on August 25, 2006, was started within two years. The judge found that one could not “by any stretch of the imagination look at this as de minimus ”. The patient’s own knowledge involved believing that the dentist had assaulted her and intentionally tried to break her tooth, against her protests, on April 1, 2004 and that the tooth broke as early as three days later. [16]
• In Dudgeon v. Canadian Career College [17] , the plaintiff was a student training to be a police officer. She hurt her knee when she fell on an obstacle course. The plaintiff claimed that while she was injured on June 25, 2002, she was not aware of the extent of the injury until March 23, 2003. The Statement of Claim was issued on July 28, 2008. The position of the plaintiff, if sustained, meant that the claim had been started within the six-year limitation period that applied at the time. The defendant argued that the limitation period began to run on the day of the fall. If the position of the defendant was confirmed, the Statement of claim was issued too late. The court determined that the injury did not qualify “as a de minimus kind of injury”. The plaintiff became aware of the injury when it occurred in June, 2002. In a letter written some time later, she described the pain from the fall as “excruciating”. [18]
• In Fortier v. Timmins (City) [19] , the plaintiff fell on the sidewalk. On the day she fell, she was advised that she had suffered a shoulder fracture. On the basis of what she had learned about her injury, she decided not to commence an action. Later, she learned that the injury was more serious than she had been told. She immediately complied with the requirement to provide notice to the municipality. By that time, the applicable limitation period had expired (seven days). [20] It was determined that it was of no legal consequence that the injury was more serious than the plaintiff first realized. The cause of action accrued on the day the accident occurred. On that day, the plaintiff knew she had suffered a fractured shoulder. [21]
• In Smith v. Toronto [22] , the plaintiff fell on a city sidewalk. She immediately received treatment. She was led to believe that the injury was not severe. Later, the plaintiff was advised that she had sustained a serious injury that would lead to ongoing problems. She immediately commenced an action. The Divisional Court determined that this was not a de minimus injury. The plaintiff's range of motion had been affected within three days and the pain was continuing. The court found that the plaintiff knew that she had a continuing injury of such seriousness that the pain was preventing sleep. The only change was that, later, she got a second opinion as to the more severe nature of the injury. The court relied on Fortier v. Timmins . This was an injury where damage beyond the de minimus level was apparent on the day, or within days, of the fall. [23]
[13] In the case I am asked to decide, there is no de minimus argument available. The pain and swelling led the plaintiff to a doctor and was one of several reasons he returned to the same physician shortly thereafter. These are not indications of an injury that is so trivial it can be, or ought to be, disregarded. There is no reason for this case to be determined on a basis other than outlined in the cases to which I have referred. The circumstances identifiable to the plaintiff on the day, or within days of the fall, cannot be set aside on the basis that the injury was so trivial it could be overlooked.
[14] In relying on the de minimus test, the plaintiff went beyond the time the injury occurred and relied on things that happened after. At the time he went to see the doctor, in the days following the accident, he was told that he had suffered a strain to his right ankle. The doctor prescribed medications directed to relieving pain (Tylenol 2 and Talwin). When further X-rays were undertaken in July, 2009, they revealed a fracture to his right ankle which had not healed. Following receipt of this information, the plaintiff attended at the office of the doctor he had seen in the days after the slip to obtain the X-rays that had been taken at that time. They showed that the plaintiff had suffered an “avulsion fracture”. Counsel for the plaintiff suggested that this was significantly different than a strain, which is what the plaintiff had been told by the doctor. Counsel for the defendants says that, medically, these conditions are similar, even the same and are treated identically from a clinical perspective. There was “…effectively no medical difference between the plaintiff’s earlier understanding of his injury as a strain and his later understanding of it as an avulsion fracture”. [24] Be that as it may, it does not matter what happened after July, 2007. On the day he fell, immediately after the fall, the plaintiff pulled himself up using the railing in the stairwell and then hopped on one leg to get back to his apartment. At the moment he fell, he felt a “striking pain” and felt that he might have fractured or sprained his ankle. By the morning of June 11, 2007, his ankle was swollen and he “couldn’t step on it properly”. [25] The injury, as it revealed itself on the day it occurred, was not de minimus. If the doctor failed to properly diagnose the injury or misled the plaintiff as to the nature of the injury, it may lead to an action against the doctor but, consistent with Smith v. Toronto, supra, and Fortier v. Timmins (City) , supra, it does not relieve the plaintiff of the responsibility to recognize the moment when his problems began. In this case, an action was commenced against the doctor but, as I have already noted, it was dismissed without costs. It is not possible to know if the dismissal was on terms and, if so, what they were.
[15] The plaintiff also says that he was misled by the effect of the operation to remove his haemorrhoids. During the time of his convalescence, he remained in bed. He did not use his ankle. He thought any problems associated with the fall had been overcome. When he began to use his ankle again, in January, 2008, it became painful and swollen. For whatever reason, the plaintiff failed to associate these difficulties with the injury he suffered when he slipped and fell on June 6. 2007. This does not change what happened on that day or the days that followed. It does not make the immediate result of the fall de minimus. The failure of the plaintiff to associate the recurrence of the pain in his ankle with the fall is not something that is to be visited on the defendant.
CONCLUSIONS
[16] The motion is granted. The action as against Centennial Apartments and Princess Management Partnership is dismissed.
COSTS
[17] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:
Submissions on behalf of the defendants, Centennial Apartments and Princess Management Partnership, are to be no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions on behalf of the plaintiff are to be no later than ten days thereafter. Such submissions are to be no longer than four pages, double- spaced, not including any Costs Outline, Bill of Costs or case law that may be provided.
Submissions, in reply, on behalf of defendants, Centennial Apartments and Princess Management Partnership are to be no later than five days thereafter.
LEDERER J.
Released: 20120217
COURT FILE NO.: 09-CV-386810-0000
DATE: 20120217
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
WAJID KUDWAH Plaintiff – and – CENTENNIAL APARTMENTS, PRINCESS MANAGEMENT PARTNERSHIP, and MICHAEL EDWARD HALPERIN Defendants
JUDGMENT
LEDERER J.
Released: 20120217
[1] Bryan A. Garner, Editor in Chief; Black’s Law Dictionary © 1999 WEST GROUP
[2] Factum of the Plaintiff (Responding Party), paras. 8 and 9
[3] Statememt of Claim, para. 18
[4] Oxford English Dictionary, Third Edition, September, 2008; online version December 2011, © 2012 Oxford University Press
[5] Lawless v. Anderson, 2010 ONSC 2723, at para. 23
[6] Rules of Civil Procedure, Rule 20.04(2.1)
[7] Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 10
[8] Dudgeon v. Canadian Career College, 2010 ONSC 3598, at para. 7
[9] Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at para. 50
[10] Ibid, at para. 51
[11] Ibid, at para. 52
[12] Ibid, at para. 53
[13] Ibid, at paras. 54 and 55
[14] Vu v. Rubner, [2008] O.J. No. 3270, at para. 21.
[15] Ibid
[16] Ibid, at para. 22
[17] 2010 ONSC 3598
[18] Ibid, at paras. 15 and 26
[19] 1999 14771 (ONSC) (Leave to appeal) and [1999] O.J. No. 3923 (Div. Ct.)
[20] Ibid (Leave to appeal), at para. 2
[21] Ibid (Div. Ct.), at paras. 5 and 8
[22] 2005 13038 (ON SCDC), [2005] O.J. No. 1543 (Div. Ct.)
[23] Ibid, at paras. 2, 6, 20 and 21
[24] Factum of the Moving Defendants, at para. 52
[25] Transcript of the Plaintiff’s Examination For Discovery, at questions 1432 to 1442, 1541-1545, 111, 199-122 and 125-130