SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-07-1349-00
DATE: 20120528
RE: BHUPINDER SINGH KANG and GURBAX KAUR KANG - and - KHARAK SINGH HAYRE, JUSTIN LEGENDRE and DHANWANTI LEGENDRE
BEFORE: F. Dawson J.
COUNSEL:
Zubin Zarolia, for the Plaintiffs
D’Arcy McGoey, for the Defendants
HEARD: May 2 and 22, 2012
E N D O R S E M E N T
[ 1 ] The defendants Justin and Dhanwanti Legendre move pursuant to Rule 20.01(3) of the Rules of Civil Procedure for summary judgment dismissing the claims brought against them by the plaintiffs on the basis that those claims were commenced outside the applicable two year statutory limitation period. The plaintiffs respond that their claims against the Legendres were not discoverable within the meaning of s. 5 of the Limitations Act , 2002 , S.O. 2002, c. 24 , until a point in time that was less than two years prior to the issuance of their claim, and that, consequently, their action is not statute barred.
[ 2 ] The question for determination on this motion is whether a trial is required in order to truthfully, fairly and justly resolve the discoverability issue on which the limitation period defence turns: Rule 20.04; Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 ; Healey v. Lakeridge Health Corp., 2010 ONSC 725 at paras. 28-29 , aff’d 2011 ONCA 55 .
[ 3 ] As explained in Combined Air at para. 50, I must ask myself: “Can the full appreciation of the evidence and the issue 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?” Applying that test I conclude that a trial is required and that the motion for summary judgment must be dismissed.
Factual Background
[ 4 ] The plaintiff, Bhupinder Kang, alleges he was injured in two separate motor vehicle accidents. The first occurred on December 11, 2005 when he was a passenger in a vehicle struck by another vehicle operated by the defendant Hayre. He claims he suffered neck and back injuries in that accident.
[ 5 ] The second accident occurred on July 10, 2007. Mr. Kang was riding his bicycle when he alleges he was struck by a motor vehicle that was reversing out of a driveway. The vehicle was operated by Justin Legendre and was owned by Dhanwanti Legendre. Mr. Kang alleges his neck and back were further injured and that he also received injuries to his left ankle, hip and shoulder.
[ 6 ] The plaintiffs issued a statement of claim on April 30, 2007 in relation to the first accident. Rather than commencing a second action in relation to the second accident the plaintiffs proceeded by amending their initial statement of claim to add the Legendres as defendants and to expand the action to cover the second accident. Leave to amend was granted on October 20, 2009. The amended claim was issued on December 1, 2009, approximately two years and five months after the second accident occurred.
Analysis
[ 7 ] Section 4 of the Limitations Act, 2002 provides that, unless otherwise specified, an action shall not be commenced more than two years after the claim was discovered. Section 5(1) defines when a claim is considered to be discovered. Section 5(2) places the onus on a claimant to rebut a presumption that a claim is discovered on the date of the act or omission on which the claim is based.
[ 8 ] As Mr. Kang obviously knew he was involved in an accident on July 10, 2007 one would think that he had two years from that date to commence his action. However, the threshold and deductible requirements that apply to claims for non-pecuniary damages arising out of motor vehicle collisions in Ontario must be taken into account in determining when such a claim is discoverable: Everding v. Skrijel , 2010 ONCA 437 .
[ 9 ] The applicable threshold is found in s. 267.5(5) of the Insurance Act , R.S.O. 1990, c.18. Before a claimant who survives an accident can recover non-pecuniary damages in circumstances such as these, they must be able to establish that they have suffered permanent serious disfigurement, or permanent serious impairment of an important physical, mental or psychological function.
[ 10 ] The deductible provisions are found in s. 267.5(7) of the Insurance Act . Pursuant to that provision and a subsequent regulation ( Insurance Act , O.Reg. 461/96 ) $30,000.00 is to be deducted from the non-pecuniary loss calculated in accordance with that subsection.
[ 11 ] The parties agree that a separate deductible applies with respect to each accident. Such has also been held to be the case: Martin v. Fleming , 2011 ONSC 5636 .
[ 12 ] The plaintiffs submit that until they could reasonably determine that Mr. Kang had suffered an injury from the second accident that took him past both the threshold and the deductible for the second accident it could not be said that his claim for the second accident was discoverable. They submit that it was not until their counsel received a report from Dr. Fred Langer dated December 12, 2007 that they were in possession of facts which made their claim discoverable, because it was only then that it could reasonably be determined their claim met the threshold and would also exceed the deductible.
[ 13 ] The plaintiffs initially argued that the thresholds for the first and second accident had to be determined separately. As indicated below, that aspect of the plaintiffs’ submission is incorrect in law: Baillargeon v. Murray (2001), 52 O.R. (3d) 278 (S.C.J.) .
[ 14 ] The Legendres submit that because the plaintiffs had already commenced an action in relation to the first accident the plaintiffs must have been satisfied that the threshold was met in relation to the first accident. The Legendres then point to the plaintiffs’ claim that the second accident aggravated Mr. Kang’s injuries from the first accident and submit that, having regard to the approach that is to be taken to determining whether the threshold is met for each of multiple accidents, as described in Baillargeon , the plaintiffs must have known, and certainly ought to have known, that they met the threshold almost immediately after the second accident occurred.
[ 15 ] With respect to Dr. Langer’s report, the Legendres rely on the principle that a plaintiff is to act with reasonable diligence in pursuit of their claim. They submit that the plaintiffs ought to have sought such a report at an earlier date and that the plaintiffs should not be permitted to take advantage of their lack of due diligence by advancing receipt of Dr. Langer’s report as the event which triggered discoverability.
[ 16 ] The Legendres further point to the evidence that Mr. Kang never returned to work after the second accident; to a chiropractic report dated October 22, 2007 indicating that Mr. Kang was in constant pain; and to disability certificates, including one dated August 10, 2007, indicating there were injuries to Mr. Kang’s left shoulder and left leg from the accident and that he was unable to complete essential tasks of employment and housekeeping. They do so in support of their submission that, having regard to the principles outlined in Baillargeon , it is perfectly clear without the need for a trial, that based on the definition of discoverability contained in s. 5 of the Limitations Act, 2002, the plaintiffs cannot discharge their onus of demonstrating that their claim was not discoverable as of the date of the second accident.
[ 17 ] At para. 137 of Baillargeon , Henderson J. set out the approach to be followed in order to determine, in cases involving more than one accident, which, if any, of those accidents caused injuries that exceeded the threshold. Applying that approach to the second accident here would require a court to undertake an assessment of the totality of the plaintiff Kang’s injuries after the second accident in order to determine whether, globally assessed, they exceed the threshold. If that were the end of the matter the moving defendants would have a stronger argument.
[ 18 ] However, because the deductible must also be taken into account, and because it is agreed that a separate deductible applies to each accident, the globally assessed damages must also be apportioned between the two accidents before it can be determined whether the damages from the second accident exceeded the $30,000.00 deductible. This adds an additional layer of complexity that must be taken into account in determining whether and when the second action was discoverable within the meaning of the Limitations Act, 2002 .
[ 19 ] Having regard to these features of the situation - a need for a global assessment of the damages resulting from both accidents, and a need to apportion the global assessment between the two accidents to determine whether the claim from the second accident will likely exceed the deductible - I conclude the matter cannot be adequately and fairly dealt with on a motion for summary judgment.
[ 20 ] A judge at trial will be in a much better position to fully and fairly assess and apportion the damages. In my view it is far too simplistic to say, as the moving defendants submit, that because the plaintiff believed his claim from the first accident exceeded the threshold that it is plain and obvious that the claim for the second accident also does.
[ 21 ] The circumstances here call for multiple findings of fact based on evidence from a number of sources and witnesses, including experts. Credibility determinations may also be necessary to access and apportion claims for non-pecuniary damages in a case such as this one.
[ 22 ] Leaving the issue of the plaintiffs’ due diligence in the obtaining of Dr. Langer’s report aside, the content of Dr. Langer’s report highlights the need for a trial in order to reach a full appreciation of the evidence. The injuries from the two accidents overlap but not completely. There is also a chronic pain issue and a question of how and to what extent the second accident contributed to the chronic pain problem.
[ 23 ] I also observe that the moving defendants have refused to admit that the plaintiffs surpass the threshold with respect to the second accident. Taking such a position does not prevent the Legendres from bringing or succeeding on this motion: Mapletoft v. Service , [2008] O.J. No. 693 . However, it is a factor that plays a role together with the other factors I have identified.
[ 24 ] The motion for summary judgment is dismissed.
[ 25 ] If the parties are unable to agree on costs, written submissions should be exchanged and filed within 15 days. Such submissions are to be limited to five pages plus a costs outline and any offers to settle.
F. Dawson J.
DATE: May 28, 2012
COURT FILE NO.: CV-07-1349-00
DATE: 20120528
SUPERIOR COURT OF JUSTICE - ONTARIO RE: BHUPINDER SINGH KANG and GURBAX KAUR KANG - and - KHARAK SINGH HAYRE, JUSTIN LEGENDRE and DHANWANTI LEGENDRE BEFORE: DAWSON J. COUNSEL: Zubin Zarolia, for the Plaintiffs D’Arcy McGoey, for the Defendants ENDORSEMENT Dawson J.
DATE: May 28, 2012