Court File and Parties

Court File No.: CV-11-426667
Date: 20121213
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thong Qua Phung, also known as Thong Kua Phung, Plaintiff

– AND –

Hugh E. Mais, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL:
John Cannings and May El-Abdallah , for the Plaintiff
Shelley Johnson , for the Defendant

HEARD: December 13, 2012

ENDORSEMENT

[ 1 ] Section 267.5(5) of the Insurance Act , RSO 1990, c I.8 provides that a defendant is not liable for a plaintiff’s injuries unless the injuries entail “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function.” For the purposes of sections 4 and 5 of the Limitations Act, 2002 , SO 2002, c 24, Sch B, is the claim “discovered” when the injuries are discovered or when their permanence is discovered?

[ 2 ] The parties were involved in an automobile accident on April 16, 2009. The Plaintiff was immediately taken to the hospital suffering from general pain, nausea, and dizziness, was soon released. He retained counsel the next day, April 17, 2009, in order to make accident benefits claims against his own insurer.

[ 3 ] On April 22, 2009, the Plaintiff was examined by Dr. John Geleff, who prepared a Disability Certificate dated April 28, 2009. In that certificate, Dr. Geleff took note of a number of injuries that arose from the accident, including shoulder strain, back strain, neck strain, knee strain, anxiety, insomnia, and dizziness. The Disability Certificate states that the Plaintiff’s injuries were likely to last for 9 to 12 weeks.

[ 4 ] On June 8, 2009, the Plaintiff underwent a psychological assessment by Dr. Oren Gozlan, who diagnosed him as suffering from “Adjustment Disorder with mixed Anxiety and Depressed Mood”. Dr. Gozlan recommended a 12 week course of psychotherapy sessions. These sessions were completed on October 30, 2009.

[ 5 ] On November 1, 2009, Dr. Gozlan issued another report on the Plaintiff’s psychological condition, indicating that he was still suffering from anxiety and depression and that “it is possible that his psychological condition will either improve or deteriorate over time…” Dr. Gozlan found that the Plaintiff was at that time “mildly disabled” in terms of his ability to care for himself, “moderately disabled” in terms of domestic activities, and “severely disabled” in terms of his vocation.

[ 6 ] On May 17, 2011, the Plaintiff issued the Statement of Claim herein. The Defendant served his Statement of Defense on October 21, 2011.

[ 7 ] On September 17, 2012, the Defendant issued his Notice of Motion seeking to dismiss the action on the grounds that the two year limitation period had already expired when the Statement of Claim was issued. The Defendant takes the position that whatever the Plaintiff had discovered about the injuries relating to the car accident on May 17, 2009 – i.e. two years prior to the commencement of the action – he already knew the day of the accident itself.

[ 8 ] Accordingly, the Defendant submits that the action should have been commenced two years from the date of the accident. He contends that nothing new occurred between April 16, 2009 and May 17, 2009 that would justify the extension of the limitation period by a month and a day.

[ 9 ] On October 4, 2012, in response to this motion, the Plaintiff was examined by Dr. Franco Tavazzini. In his report dated October 7, 2012, Dr. Tavazzini diagnosed the Plaintiff as suffering from a number of ailments that presumably are a result of the accident, including many of the strains that Dr. Geleff had earlier observed. Most importantly, in an addendum to his report dated October, 2012, Dr. Tavazzini commented, “[b]ased on the nature of his injuries, any physician would wait an appropriate amount of time (6 to 12 months) in order to determine maximal medial improvement from his injuries. His injuries are not of a nature that one would be comfortable in declaring his impairment to be permanent only a month after his motor vehicle collision.”

[ 10 ] The Plaintiff then underwent a further psychological assessment by Dr. Gozlan, resulting in a report dated October 10, 2012 in which the psychological symptoms suffered by the Plaintiff were said to be ongoing. Dr. Gozlan stated that the Plaintiff is “experiencing pain that is chronic in nature and has worsened since the accident with no indication of improvement in pain perception.” Furthermore, Dr. Gozlan indicated that it was impossible at that time to predict whether or not the psychological injuries were permanent as the factors that impact on this prognosis were currently “impossible to foresee.”

[ 11 ] The Defendant has produced no expert opinion. In her factum, counsel for the Defendant analogizes the present case with Fekrta v. Siavikis , [2008] OJ No 4281, at para. 16 (SCJ) , where the Plaintiff was found to have missed the limitation period when she sought to amend her claim to add two new defendants four years after she was injured in a motor vehicle accident and where “she was aware that she had a potential claim against the three defendants who had been named in the Motor Vehicle Accident Report.”

[ 12 ] What this argument overlooks, however, is that in Fekrta , the court specifically found, at para. 16, that “the plaintiff knew about the extent of her injuries after the accident.” That is not the case here; indeed, both Dr. Tavazzini and Dr. Gozlan opine that the extent of the Plaintiff’s injuries were unknowable at the time of the accident. As the Court of Appeal said in Everding v. Skrijel , 2010 ONCA 437 , at para. 11 , “[c]learly 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.”

[ 13 ] This is particularly the case under the Insurance Act , where the “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. Peixeiro v. Haberman , 1997 325 (SCC) , [1997] 3 SCR 549, at para. 34 . As the Supreme Court of Canada has put it, “there is no cause of action until the injury meets the statutory exceptions to liability immunity in s. 266(1) [now s. 265.5(5)] of the Insurance Act . Ibid ., at para. 44.

[ 14 ] I am conscious of the difficulties that the “discoverability” rule poses for a plaintiff and his counsel. As has been noted in other cases, “if the plaintiff issues suit prematurely, he or she may be faced with an almost immediate motion to dismiss the claim…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.” Ioannidis v. Hawkings (1998), 1998 14822 (ON SC) , 39 OR (3d) 427, at para. 35 (SCJ). Plaintiff and his counsel must be confident of credibly “assessing the medical and other evidence” as to whether the injured person has sustained permanent impairment, whether the impaired bodily function is an important one, and whether the impairment is a serious one. Meyer v. Bright (1993), 1993 3389 (ON CA) , 15 OR (3d) 129, at 138 (Ont CA).

[ 15 ] Under section 5(2) of the Limitations Act, 2002 , “[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.” For the purposes of this Rule 20 motion, however, the Plaintiff need not definitively prove that he commenced the action within two years of discovering the claim.

[ 16 ] In fact, “when a party is seeking to apply the discoverability rule, the court should afford a degree of latitude to that party before declaring that the limitation period has begun to run.” Mathurin v. Vandenburg , 2007 52979 , at para. 26 (SCJ) . What the responding party must show is that there is sufficient evidence to give the Plaintiff “a reasonable chance of persuading a trial judge that [he] did not know or could not reasonably have known until [after May 17, 2011] that [his] injuries from the accident would meet the threshold under the Insurance Act .” Ibid ., at para. 50.

[1] As indicated above, the only expert evidence in the record is that provided by the Plaintiff, and it is unequivocal that the necessary level of permanence could not have been determined for either the physical or the psychological injuries suffered by the Plaintiff until well after a month and a day following the car accident. That assessment may change, of course, once the Defendant mounts his full case and submits expert evidence of his own. At the present time, however, I am not in a position to have the full appreciation of the evidence that would be required to make dispositive findings by way of summary judgment . Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , para. 50 (Ont CA).

[ 17 ] Other courts have already noted that, “no one can seriously argue that the decision whether a particular injury meets the statutory criteria is an easy one…” Ioannidis , supra , at para. 41 . It is all the more difficult on a summary judgment motion where the record does not contain all of the expert evidence from both sides that is needed for a complete appreciation of the issues.

[ 18 ] I can express my conclusion no better than Mulligan J. expressed it in Smith v. Blackall , 2012 ONSC 4990 , at para. 33 (SCJ): “the full machinery of a trial will enable a trial judge to hear the evidence of the plaintiff [and defendant] and [their] medical experts.”

[ 19 ] The Defendant’s motion is therefore dismissed. The parties may make written submissions addressing costs.

[ 20 ] I would ordinarily give the parties two weeks to make their costs submissions, but as the holiday season and closure of the courts is almost upon us, I would ask both counsel to send their costs submissions to be within one week of the release of this endorsement.

Morgan J.

Date: December 14, 2012