BARRIE COURT FILE NO.: 07-1288

DATE: 20120831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LORI-ANNE SMITH, JASON SMITH, BOB SMITH and ALEXXIS SMITH, a minor by her Litigation Guardian, Lori-Anne Smith

Plaintiffs/Responding Party

– and –

STEVEN BLACKALL

Defendant/Moving Party

A. R. Kerr, for the Plaintiffs/Responding Party

D. Ballard, for the Defendant/Moving Party

HEARD: August 22, 2012

MULLIGAN J.:

[1] The plaintiff Lori-Anne Smith (“Lori-Anne”) is one of the plaintiffs in this action. She was injured in a motor vehicle accident. She was a passenger in a car driven by Bob Smith. This vehicle was struck by an automobile driven by the defendant Steven Blackall (“Blackall”). The accident occurred on May 4, 1996. She suffered a number of injuries including injuries to her knees. She was off work for three months and then returned to her employment. She commenced her action on November 16, 2007 over 11 years after the date of the motor vehicle accident.

[2] Blackall moves for partial summary judgment to dismiss the claim of Lori-Anne and the derivative Family Law Act claims of Jason Smith, Bob Smith and a minor plaintiff Alexxis Smith. Blackall alleges that Lori-Anne’s claim is outside the two year limitation period as prescribed by statute. Lori-Anne opposes the motion on the basis that the nature and extent of her injuries were not known until 2007. In June of 2007 she left her long-term employment position due to knee pain. Later that year she saw Dr. W. Latham an orthopaedic surgeon who reviewed her recent MRI and subsequently performed an arthroscopy in 2008 and later a total knee replacement that same year. Lori-Anne’s position is that it was only during this period, well within the two year period prior to her claim being issued, that she became aware of the seriousness of her knee problem and that the problem would not resolve itself over time. For reasons that follow, Blackall’s motion for partial summary judgment is dismissed.

BACKGROUND FACTS

[3] In support of Blackall’s motion an affidavit was filed detailing Lori-Anne’s initial knee pain upon her admission to hospital after the accident. Records indicate that she complained of pain or tenderness to her right knee. She was treated and released. According to her affidavit she was off work for three months and returned to work but still experienced some ongoing pain. As she set out in paragraph five of her affidavit:

Although my injuries had recovered enough for me to return to work, I continued to experience ongoing pain in my low back and knees. It did not, however, affect my ability to work fulltime and to carry out all the duties of my job. I was also able to continue running my household and looking after my children.

[4] The affidavit filed on behalf of Blackall indicates that Lori-Anne had numerous investigations with respect to her knee pain several years after the accident. She saw her family doctor expressing complaint about right knee pain on numerous visits, including visits from January 25, 2001 to June 13, 2005. She also had a number of x-rays and visits to specialists. On January 25, 2001 she had an x-ray indicating “mild to moderate osteoarthritic osteophytic changes are present in the right knee more pronounced in the medial compartment”.

[5] She had a further x-ray on September 11, 2003 indicating: “there is medial compartment narrowing with medial and lateral osteophytic overgrowth as well as small patellar osteophytes. No other acute bony abnormality is seen”.

[6] On referral she saw Dr. Wong in 2003. Dr. Wong noted that Lori-Anne was overweight and noted she self-reported that the pain was worse with weight-bearing and less with non-weight bearing. As far as treatment he recommended that Lori-Anne should lose weight and stated: “I think a 40 pound weight loss would be beneficial”. He also recommended physiotherapy and prescription medication.

[7] In 2004 she saw Dr. Yuen. He noted that Lori-Anne was significantly overweight. He noted upon reviewing x-rays that she had osteoarthritis involving her knees. He made a referral for her to see an orthopaedic surgeon, Dr. Korkola, for an orthopaedic opinion.

[8] Lori-Anne saw Dr. Korkola and on July 27, 2004 he reported: “X-rays demonstrate moderate arthrosis. There is osteophyte formation. The findings are more pronounced on the right. There is suspicion of a small lose body along the lateral joint line.” Dr. Korkola ruled out a total knee replacement until Lori-Anne was at least in her 60’s. He reported:

Given her young age, and current weight, I would not recommend total knee arthroplasty in this point in time. I discussed the importance of weight loss, formal therapy program, custom orthotics as well as visco supplementation. She understands that none of those options alone would be successful. I also discussed the role of glucosamine and chondroitin sulphate. I told her that I would not consider operative intervention until she was at least down to 200 pounds.

[9] Except for the three months period that she was off work after the accident Lori-Anne continued working continually post-accident until she resigned her position in June of 2007. She had been working at her local Wal-Mart store since June of 1995 commencing as a part-time employee and progressing to full-time. Post-accident she advanced through a number of positions but her knee pain was such that she could not continue with a job that required her to be on her feet all day. Her employer accommodated her. In 2004 she transferred to an office position within the store. But as she notes in her affidavit, “In the Spring of 2007 I found that my knees were getting so bad that I could no longer continue to work and I left my job in June of 2007”.

[10] As to the activities of daily living prior to 2007 Lori-Anne stated in her affidavit at para. 8:

Throughout this entire period, I continued to work fulltime without missing any time from work, and to carry out all the duties of my job. I also continued to look after my home and my family, in particular, my children. Despite increased pain, my day to day activities did not significantly change. About the only change was that I quit coaching the children’s baseball team that I used to coach.

[11] In September of 2007 Lori-Anne was seen by another orthopaedic surgeon Dr. W. Latham. Dr. Latham ordered an MRI. That report indicated: “There is fairly extensive cordical irregularity and osteophyte formation on the anterior aspect of the right medial femoral condyle. This is most likely secondary to degenerative arthritis but could also be post-traumatic.”

[12] Dr. Latham came to a different conclusion than Dr. Korkola and did not hesitate to recommend an arthroscopy and later a total knee replacement. In January of 2008 Dr. Latham reported to her family doctor as a follow-up to her knee scope. He indicated she would certainly be a candidate for a total knee replacement at 47 years of age having explained the risks and benefits to Lori-Anne. In June of 2008 he reported on the result of the total knee arthroplasty which had been performed several weeks earlier. He noted: “I think that overall the surgery was a success”. By December of 2008 he reported: “She still has some aches and pains in her knee but overall she is much improved than her previous condition. She is going back to work”.

[13] Lori-Anne was examined for discovery in March of 2010. In addition, she filed an affidavit in response to the defendant’s motion. As she sets out in her affidavit at para. 9 and 10:

As can be seen from the medical records I am severely overweight. Currently, I am 5’4” tall and weigh over 300 pounds. Although my weight has fluctuated over the years, I have always been significantly overweight. Since the accident, my weight has increased somewhat, both because of the aging process and, in the past few years, because my knee complaints have made me somewhat less active. I have attempted many times to lose weight but have never had any significant or sustained success doing so. My weight problem interferes with my ability to carry out many activities. As a result, other than work, and carrying out my household and family chores, I do very little other than sedentary activities which have not been affected by my knee problems.

When I met with the various doctors and specialists, as well as other treating health professionals, that my family doctor sent me to in and around 2004, they all stressed to me that my weight problems were aggravating my knee pain and that it was important to lose weight in order to improve my knee condition. They stressed the weight problem as the cause and the important thing to deal with in order to improve my knee condition. I understood them to say that my knee condition would likely improve considerably, if I could lose weight.

[14] As to the issue of the seriousness of her knee Lori-Anne stated at para. 16:

During the course of the arthroscopic surgery Dr. Latham discovered that I had much more severe problems with my right knee than he suspected. As a result he recommended that I have a full knee replacement of my right knee. I had the right knee replacement in May of 2008.

[15] Lori-Anne stated at para. 19: “It was only after I left work that I believe that I had suffered a serious impairment of an important bodily function”.

THE LIMITATION PERIOD

[16] Both parties agree that a two year limitation period governs this claim. The issue was canvassed in Fekrta v. Siaeikis 2009 ONCA 537. As the Court of Appeal stated on the facts of that case at para. 4 and 5:

Given that the accident occurred prior to January 1, 2004, the date on which the Limitations Act, 2002, S.O. 2002, c.24 (the “new Limitations Act), came into force, and that no proceeding against the respondents was commenced until after that date, s. 24 of the new Limitations Act governs the issue of what limitation period applies.

However, whether this case is governed by s. 206 of the Highway Traffic Act or by the new Limitations Act, the applicable limitation period is two years from the date on which the appellant discovered her claim.

[17] The Statement of Claim was issued November 16, 2007. The accident occurred on May 4, 1996.

SERIOUS INJURY

[18] Both parties acknowledge that the provisions of the Insurance Act s.267.1(1) known as Bill 164 governs the Plaintiff’s claim with respect to this matter. Section 261.1(2) provides as follows:

Section 267.1(2)(1) does not relieve a person from liability for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, if as a result of the use or operation of the automobile the injured person has died or has sustained, (a) a serious disfigurement; or (b) serious impairment of an important physical, mental or psychological function.

[19] Both counsel agreed that the Court of Appeal’s guidance in Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.), as modified to take account of the wording provided in Bill 164 provides guidance as to the approach in cases such as this. In Rob v. Becking (1997) O.J. 5610 MacDougall J. suggested the following path:

Both counsel agree that the test, as set out in the case of Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.), modified as a result of the amendment to the Insurance Act, is the applicable test. The approach then is to answer sequentially the following questions:

(1) Has the injured person sustained serious impairment of an important physical, mental or psychological function?

(2) If the answer to Question 1 is yes, is the physical, mental or psychological function which is seriously impaired an important one, that is, one that plays a major role in the health, general well being and way of life of the injured plaintiff?

(3) If the answer to Question 2 is yes, then is the impairment of the important physical, mental or psychological function serious?

[20] In addition MacDougall J. attempted to define “serious” within the context of the case before him. As he stated at para. 5:

This last question has to be determined by reference to the condition and situation in life of the particular injured person. What is serious to some will not be serious to others. The court has indicated that what is serious must be resolved on a case-by-case basis. However, generally speaking, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.

DISCOVERABILITY

[21] The plaintiff faces an evidentiary burden on a balance of probabilities to satisfy a court that she had a serious injury. She then has the burden to establish that the seriousness of her injury was not discoverable until within the applicable period prior to her claim as established by the Limitations Act, 2002. The Act provides at para. 5:

Discovery

5.(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).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[22] The Supreme Court of Canada reviewed the discoverability issue in Peixeiro v. Haberman, (1997) 1997 CanLII 325 (SCC), S.C.J. No. 31. In Peixeiro the Supreme Court reviewed the principles earlier discussed in Meyer v. Bright. The Court confirmed the principle, now enshrined in the Limitations Act, 2002, that the discoverability principle applies to postpone the running of time until the material facts underlying the cause of action, including the extent of the injury, are known. The Court acknowledged the important balancing of interests when it stated at para. 34: “Whatever interest the defendant may have in the universal application of a limitation period must be balanced against the concerns of fairness to the plaintiff who was unaware that his injuries met the conditions precedent to commencing an action”.

[23] In Everting v. Skrijel 2010 ONCA 437, 2010 O.J. No. 2534 the Ontario Court of Appeal reviewed the discoverability principles in a case where the plaintiff, several years after the accident, obtained an MRI which gave him objective evidence that he had suffered a permanent serious impairment of an important physical, mental or psychological function. The Court also reviewed the interplay of the deductibility factor that applies when plaintiffs consider whether or not to commence an action. As Feldman J.A. stated at para. 11:

Clearly it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have a substantial chance to succeed in recovering a judgment for damages. Those provisions of the Insurance Act were enacted as part of a scheme that provides compensation with no fault benefits for injuries that are not considered to be serious or permanent, but allows actions to proceed where the injuries are sufficiently significant that a substantial monetary award is likely to be recovered. Consequently, the test for discoverability of the existence of such a claim for limitation purposes must be in accordance with this same policy.

[24] In Everting the Court of Appeal overturned the decision of the motions judge granting summary judgment to the defendant and allowed the issue to proceed to trial.

[25] In Ioannidis v. Hawking (1998) 1998 CanLII 14822 (ON SC), O.J. No. 1421 Langdon J. also reviewed the guidance from the Supreme Court of Canada in Peixeiro and defined the plaintiff’s dilemma at para. 34 as follows:

Thus if the plaintiff issues suit prematurely, he or she may be faced with an almost immediate motion to dismiss the claim. If, following a pretrial assessment, the judge is persuaded that the claim does not meet the threshold the plaintiff’s action is dismissed once and for all. On the other hand, the longer the plaintiff waits, the greater is the risk that he or she will wait too long and the action will be statute barred. The ultimate determination whether a claim meets the threshold or not is far from a simple task and is one about which reasonable men may often disagree.

[26] On the facts before him Langdon J. stated at para. 39:

When one is seeking to apply the discoverability rule to the plaintiff in a case such as this, it behooves the court to grant a degree of latitude to a plaintiff before declaring that the limitations period has begun to run…. This is not to say that the plaintiff is entitled to wait until her or she has an overwhelming case. It is only to say that the court must afford a degree of latitude to the plaintiff in making this very individual and complicated determination.

DURATION OF THE INJURY

[27] In Fisher v. Novakovic, (2001) 2001 CanLII 28029 (ON SC), O.J. No. 402 Malloy J. determined that the duration of an impairment was a relevant consideration in determining whether the impairment met the threshold test. On the facts before her Justice Malloy stated at para. 15:

The plaintiff’s evidence, supported by medical opinion, is that it was only upon learning that his condition would never get better that he could reasonably be expected to know that his impairment was “serious”. It cannot be said definitively that of January 1996 the plaintiff had all the information he needed in order to determine whether his impairment was “serious”.

[28] Under the test applicable under Rule 20 at the time Her Honour found:

There is a genuine issue for trial as to the point in time that the plaintiff ought reasonably to have known that he had a “serious” impairment and a case could therefore pass the threshold.

SUMMARY JUDGMENT MOTIONS

[29] Both parties made reference to the court’s jurisdiction under revised rule 20.04 of the Rules of Civil Procedure and the subsequent guidance of the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764. In Combined Air the Court noted the expanded powers of motion judges to weigh evidence, evaluate credibility and draw inferences from the evidence to determine whether there is a genuine issue requiring a trial. However the Court noted that at para. 45 that: “A trial is essential in certain circumstances if the ‘interest of justice’ is to be served”. At para. 46 and 47 the court noted the guidance of the Supreme Court of Canada in Housen v. Nikolaisen, [2002] S.C.C. 33 which stressed the importance of the trial judge’s total familiarity with the evidence and the privileged position of the trial judge as a participant in the unfolding of evidence at trial. As a result the Court in Combined Air established the following test at para. 50:

Can a 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.

[30] The Court set out at para 51 the types of cases which would not be amendable to a summary judgment motion. As the Court stated:

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. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.

POSITION OF THE PARTIES

[31] The defendant submits that this is an appropriate case for partial summary judgment dismissing the claim of Lori-Anne and the derivative of Family Law Act claims. She knew or ought to have known that she had a serious injury, as defined by Bill 196, well before the commencement of the two year period prior to the issuance of her claim. She had numerous visits with her family doctor, several x-rays and consultations with specialists, including an orthopaedic surgeon. Although she didn’t discontinue working during this period she did request and receive some modified duties from her employer. Her personal life was modified because she no longer coached her daughter’s team.

[32] The position of the plaintiff is that this is not an appropriate case for partial summary judgment against her. The interests of justice and fairness require that there be a trial based on a full evidentiary record including the examination and cross-examination of the plaintiff and her medical experts. Although the plaintiff experienced pain in her knee for several years, she continued her employment throughout and continued to assist her family. She acknowledges receiving modified duties from her employer and discontinuing coaching her daughter but in all other respects maintained her normal family routine. She acknowledges having a serious weight loss problem; but, her understanding of the medical advice she received was that her symptoms would improve if she lost weight and a total knee replacement was not an option for her both because of her age and weight. However, she recognized that her injury was serious when in June of 2007 she was forced to stop working and, later that year, obtained a second opinion from an orthopaedic surgeon which led to procedures which eventually led to a total knee replacement. After those procedures she was able to return to part-time employment. These events occurred within the two year period prior to her issuance of her claim.

CONCLUSION

[33] I am satisfied that this is not one of those cases, based on the guidance of Combined Air, that can be determined on a summary judgment motion. Although the plaintiff experienced ongoing knee pain for many years after the accident, it wasn’t until she was forced to discontinue work and received medical advice as to her need for a total knee replacement that she believed that she had serious injury as defined by Bill 196. In my view, the full machinery of a trial will enable a trial judge to hear the evidence of the plaintiff and her medical experts. The record before me consists of affidavits and examination for discovery. In contrast, a trial judge will develop total familiarity with the evidence and from that privileged position he will be in a better position to resolve the conflicting evidence and make dispositive findings.

[34] The partial summary judgment motion of the defendant is therefore dismissed.

COSTS

[35] Both parties made submissions on costs at the conclusion of the motion and handed up cost outlines acknowledging that the successful party should achieve costs as set out in their costs outline. Costs are therefore fixed on a partial indemnity basis for the plaintiff in the amount of $3,678.11 payable by the defendant within 30 days of the release of this judgment.

MULLIGAN J.

Released: August 31, 2012