Huang v. Mai et al.

[Indexed as: Huang v. Mai]

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

February 26, 2014

119 O.R. (3d) 117 | 2014 ONSC 1156

Case Summary

Limitations — Discoverability — Plaintiff injured in motor vehicle accident in 2007 but not commencing action until two years and two months after accident — Initial medical reports indicating that plaintiff's injuries did not meet threshold in s. 267.5(5) of Insurance Act — Plaintiff's counsel receiving medical report in 2011 which he believed was sufficient to persuade judge that plaintiff's injuries met threshold — Defendants' motion for summary judgment dismissing action as statute-barred dismissed — Genuine issue for trial existing as to when plaintiff first knew that proceeding would be appropriate means to seek remedy — Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5).

The plaintiff was injured when she was struck by a motor vehicle in October 2007. The early evidence did not necessarily support the existence of a serious medical problem. The plaintiff retained a lawyer in July 2009. The lawyer obtained a variety of medical and other examinations. The initial reports indicated that the plaintiff's injuries did not meet the threshold in s. 267.5(5) of the Insurance Act. The lawyer intended to commence an action within two years of the accident in any event, but failed to properly diarize the two-year anniversary. The statement of claim was issued 63 days late. In 2011, the plaintiff's lawyer [page118] received a further medical report which led him to believe for the first time that he could persuade a judge that the plaintiff's injuries met the threshold. The defendants brought a motion for summary judgment dismissing the action as statute-barred.

Held, the motion should be dismissed.

A genuine issue for trial existed as to when the claim was discovered under s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, that is, when the plaintiff first knew that a proceeding would be the appropriate means to seek a remedy for her injuries. The fact that the plaintiff's lawyer had intended to commence the action within the two-year period did not preclude the operation of the discoverability rule.

Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, apld

Chan v. Abdo, [2013] O.J. No. 2447, 2013 ONSC 3017 (S.C.J.); Fuller v. McCartney (2003), 2003 3273 (ON SC), 63 O.R. (3d) 393, [2003] O.J. No. 545, 34 M.V.R. (4th) 198, 120 A.C.W.S. (3d) 225 (S.C.J.), consd

Other cases referred to

Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] S.C.J. No. 8, 2014 SCC 8, 314 O.A.C. 49, 453 N.R. 101, 2014EXP-318, 366 D.L.R. (4th) 671, J.E. 2014-161, EYB 2014-231952, 27 C.L.R. (4th) 65, 47 C.P.C. (7th) 1, 37 R.P.R. (5th) 63; Everding v. Skrijel (2010), 100 O.R. (3d) 641, [2010] O.J. No. 2534, 2010 ONCA 437, [2010] I.L.R. I-5018, 263 O.A.C. 130, 321 D.L.R. (4th) 550; Hoffman v. Jekel, [2011] O.J. No. 879, 2011 ONSC 1324 (S.C.J.); Ioannidis v. Hawkings (1998), 1998 14822 (ON SC), 39 O.R. (3d) 427, [1998] O.J. No. 1421, 59 O.T.C. 285, 3 C.C.L.I. (3d) 232, 37 M.V.R. (3d) 17, 78 A.C.W.S. (3d) 798 (Gen. Div.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Phung v. Mais, [2012] O.J. No. 5990, 2012 ONSC 7153, 17 C.C.L.I. (5th) 241, 224 A.C.W.S. (3d) 297 (S.C.J.); Simonelli v. Halifax Insurance Co., 2002 79663 (ON SC), [2002] O.J. No. 1354, 38 C.C.L.I. (3d) 154, 113 A.C.W.S. (3d) 703 (S.C.J.); Voisin v. Hartin, [2000] O.J. No. 5009, [2000] O.T.C. 931 (S.C.J.); Yelda v. Vu, [2013] O.J. No. 3683, 2013 ONSC 4973, [2013] I.L.R. I-5484 (S.C.J.)

Statutes referred to

Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5) [as am.]

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.]

Rules and regulations referred to

Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96, ss. 4.1, 4.2, 4.3

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04, 20.04(2)(a), 20.04(2.1), 20.04(2.2), 20.05

MOTION for summary judgment dismissing an action.

William G. Scott, for plaintiff.

Jonathan J. Barr and Zofia Vorontsova, for defendants. [page119]

PERELL J.: —

A. Introduction and Overview

[1] What is it "to know" whether a litigant has a cause of action? This summary judgment motion raises questions about when a plaintiff and her lawyer knew or ought to have known about the existence of a motor vehicle negligence cause of action that meets the threshold requirements of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.

[2] In this action, Xiao Jun Huang sues Yin Song Mai and Xiong Wang Chen in a personal injury action arising from a collision between a bicycle, which was being ridden by Ms. Huang, and a motor vehicle, which was being driven by Ms. Mai.

[3] Ms. Mai and Mr. Chen, who was the owner of the vehicle, bring a summary judgment motion to dismiss the action on the ground that it is statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act"). The defendants submit that that there is no genuine issue requiring a trial and that Ms. Huang's action is untimely because her lawyer, who admitted to having intended to issue a statement of claim within two years of the accident, negligently failed to do so.

[4] Ms. Huang resists the summary judgment motion and brings a cross-motion to amend her statement of claim as follows:

This action has been brought within 2 years of when it was discoverable pursuant to ss. 4 and 5 of the Limitations Act, 2002 that the plaintiff's injuries met the requirements of s. 267(5) of the Insurance Act and ss. 4.1, 4.2 and 4.3 of O. Reg. 461/96.

[5] Ms. Huang submits that regardless of what her lawyer intended, her claim was not discovered until after she had commenced the action and her lawyer obtained medical reports that revealed that her injuries were serious enough to satisfy the statutory threshold for a claim under the Insurance Act.

[6] For the reasons that follow, I dismiss the defendants' summary judgment motion and I grant Ms. Huang's motion to amend her statement of claim.

(continues verbatim through paragraph [54] exactly as provided in the HTML)

Motion dismissed.

End of Document