SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-CV-495538

Heard: March 19, 2015

RE: Brown-Vidal v. Doe and the Personal Insurance Company

BEFORE: Master Joan Haberman

COUNSEL: Barron, N. for the moving party

Hirani, K. for the proposed party, Chung

Robertson, M. for the defendant

REASONS

Master Haberman:

[1] The plaintiff, Brown-Vidal was involved in a motor vehicle accident in 2010 and now seeks to correct a misnomer to her statement of claim, issued in 2013, by replacing Doe with Park S. Chung. The responding position was that this was not a case of misnomer at all, but rather, an attempt to add a new party to an action that had been started after the expiry of the presumptive limitation period.

[2] For Reasons that follow, the motion was dismissed.

EVIDENCE FILED and NOT FILED

[3] Brown-Vidal’s evidence was submitted through three successive affidavits from her counsel, Michael Yermus. There is no direct evidence from her regarding what she knew and when she became aware of it.

[4] Yermus’ first affidavit was sworn on January 17, 2014 and says very little in all of two pages. The only issue raised by the plaintiff at that time to excuse the failure to include Chung by name when the claim was issued revolves around when the plaintiff became aware of his identity. Yermus states, at paragraph 5, that:

On or around December 30, 2013 a plate search of the Defendant John Doe’s Vehicle turned up the registered owner as Park S. Chung, who resides at 12 Regal Court, Markham, Ontario L3G 8G1.

[5] A copy of that search was attached but Yermus says nothing about when or how he or the plaintiff obtained the information they needed to conduct this search more than three years after the accident.

[6] There is also no reference at all in this affidavit to the plaintiff’s injuries or to the fact that she had delayed starting the action until aware that her injuries could pass threshold. The entire focus of the motion at that time was on when Doe was identified as Chung.

[7] It was only in his Supplementary Affidavit (the second affidavit), sworn on October 29, 2014 that Yermus first alludes to the threshold issue, without referring to it as such. This evidence was tendered 9 months after the first affidavit was sworn.

[8] At paragraph 10. Yermus states that the plaintiff was diagnosed with left foraminal disc protrusion more than a year after the motor vehicle accident. In his evidence, he repeats precisely what he pleaded in paragraph 8 of the statement of claim with respect to the basis for the plaintiff’s reliance on s. 5 of the Limitation Act, 2002, S.O 2002, chap. 24, sch. B, as amended, claiming that she:

…did not become aware nor ought she have to have been aware that she had sustained a permanent serious disfigurement and/or permanent serious impairment of an important physical, metal or psychological function until sometime after December 29, 2011, the date of the MRI which indicated that she sustained left foraminal disc protrusion with some narrowing of the lateral recess.

[9] That represents the sum total of the evidence on this point. No medical records pertaining to the plaintiff, either before or after this date, are appended. There is no evidence from the plaintiff, herself, about when she became aware of this diagnosis or how it added to what she already knew or suspected. In fact, the reference to what the MRI report revealed in not an actual diagnosis, but rather, simply a record of what was observed as a result of the test. In short, instead of putting evidence before the court to make his point, Yermus reiterated an allegation in a pleading.

[10] Yermus then states that the action was commenced within two years of the plaintiff learning that her injuries were permanent and serious, having provided no direct evidence to that effect.

[11] Yermus returns to his the theme of his first affidavit regarding efforts to ascertain Chung’s identity. this time asserting in paragraph 14 that:

…the only information that Ms. Brown-Vidal had with respect to the potential Defendant(s) was a plate number, which was written on a piece of paper that the Plaintiff preserved since the accident.

[12] It is therefore clear that the plaintiff has always had the information she needed – the plate number – to undercover Chung’s identity. There is no evidence explaining what, if anything, she did to use that information to identity the name of the plate holder and, if not, why she did nothing.

[13] On November 3, 2014, Yermus delivered yet a further supplementary affidavit (the third affidavit). This time, he appended a copy of the MRI report, dated December 29, 2011, referred to in his second affidavit and which he relies on as the basis for the limitation period having only commenced at that time.

[14] A review of the report indicates that the MRI was performed on December 29, 2011, so more than a year post accident. It was conducted at the Scarborough Hospital and copied to Chih-Peng Chang, the ordering physician. His notes are not appended to the third affidavit, not is he referred to at all in Yermus’ evidence, though an MRI is only administered after it has been requisitioned by a treating physician. That physician’s notes would have provided the court with insight as to the nature of the plaintiff’s complaints, when they first manifested and why he thought an MRI was appropriate at that time. It generally takes several months to obtain access to an MRI examination in Ontario, so it is likely that the plaintiff’s symptoms persisted for some time before the MRI was ordered.

[15] The MRI report makes no reference the plaintiff’s involvement in an accident, let alone this accident. There is no suggested that the plaintiff’s condition, as identified by the MRI, was induced by a trauma. The report indicates that the MRI examination was prompted by “low back pain with bilateral sciatica.” Sciatica is a medical diagnosis, which the referring physician had apparently already made, as that was what the NMIR was intended to explore. It therefore appears that the referring physician ordered the MRI to confirm his diagnosis.

[16] The only finding on the report of any relevance was with respect to the L4-L5 (low lumbar) spine, as follows:

Disc: left foraminal disc protrusion with some narrowing of the left lateral recess.

Facet Joints: moderate degenerative changes

Thecal sac: not compressed

Neuroforamina: left side is narrowed predominantly inferior

[17] Moderate degenerative changes were also noted at the L5-S1 (lumbar sacral spine).

[18] The opinion given by the radiologist who interpreted the results was as follows:

Degenerative changes probably affecting the facet joints as described. Left foraminal disc protrusion with some narrowing of the let lateral recess at L4-L5.

[19] Degenerative changes and disc protrusion are two conditions that can be caused by trauma or by the ordinary wear and tear of life. While either can result in a permanent serious impairment of an important physical function, neither necessarily will do so. The radiologist says nothing about the prognosis for this plaintiff, nor does he hazard a guess as to the cause of what he observed. There is also no evidence from the treating physician regarding his views on the matter.

[20] The complete lack of evidence from the plaintiff as to what she knew and experienced and when, in the absence of any medical evidence aside from the MRI report is, in my view, seriously problematic for the plaintiff.

CHRONOLOGY

[21] The accident occurred on November 22, 2010. At that time, the plaintiff was able to see and record the licence plate number of the other involved vehicle. She has therefore had the ability to identify the driver from the outset. For whatever reason, she apparently chose not to do so and there is no affidavit from her to explain this.

[22] Contrary to the submissions of counsel for the plaintiff, it was not a “crime” if Chung failed to report the accident, nor is there any evidence before the court to allow me to conclude, that he did, in fact, leave the scene of the accident or fail to report it. In the absence of evidence, counsel cannot simply ask the court to infer a certain set of facts.

[23] The statement of claim was issued on December 23, 2013, more than three years post loss. Even then, however, Chung was not included as a defendant.

[24] Although the plaintiff had in hand the plate number of Chung’s vehicle, a plate search was not conducted until December 30, 2013 - a week after the claim was issued. There is no evidence to explain that delay.

[25] Yermus swears that the plaintiff was injured in this accident. There is no evidence from the plaintiff to that effect, nor a single clinical note or record to support that assertion. The MRI report produced says nothing about any trauma, or about this particular accident and the diagnosis is also consistent with normal wear and tear. Although Yermus relies on it as the turning point for his client that allowed her to appreciate, for the first time, that she had an actionable claim, the report is simply a report as to what the MRI showed, and does not contain a physician’s opinion as the cause for what was observed. I have difficulty giving it the weight the plaintiff suggests in order for it to assume such a prominent position on this motion.

[26] Only page 1 of the Motor Vehicle Accident Report is appended as an exhibit to the first affidavit, so I cannot even ascertain from that document if the plaintiff was of the view that she sustained any injuries at the time of this event.

[27] The first affidavit was sworn on January 17, 2014 it and makes no mention of the plaintiff not having been aware earlier as to the nature and extent of her injuries – the evidence suggest that Doe was named as a placeholder for Chung pending the results of a plate search. At that time, this motion was about one missing element only – the identity of the tortfeasor.

[28] Although the claim was issued on December 23, 2013, the MRI examination had already been conducted on December 29, 2011. There is no evidence from the plaintiff as to when she received these result, though she relies on the information contained in this report as justification for the start of the 2-year limitation period having been postponed.

[29] Assuming the plaintiff can establish that the discoverability principle applies to delay the start of the limitation period, she must still deal with a separate hurdle. The plaintiff must explain why she did not name Chung when the claim was issued or within two years of having obtained the knowledge her counsel claims she needed to appreciate the nature of her injuries. This is a significant hurdle, in that she had Chung’s plate number from the outset.

[30] This hurdle was made all the more difficult by the manner in which plaintiff’s counsel approached this motion. Having discovered Chung’s identity, this motion was initiated to replace the Doe defendant with Chung. Though already facing the hurdle of an expired statutory limitation period, this motion was not carefully thought out.

[31] It was initially brought, on February 21, 2014, without notice to Chung in an ex parte court. As a result, it was adjourned to July 8, 2014. Master Graham’s endorsement at that time indicated as follows:

The moving party shall serve a notice of motion on all potential responding parties and shall file proof of service on (sic) the new return date.

[32] Despite this very clear instruction, counsel turned up in court on July 8, 2014 without having served Chung. At that time, Master Glustein adjourned the matter to November 7, 2014, almost four years post-accident, for 90 minutes.

[33] The matter came before Master Dash on November 7, 2014, but as it had only been confirmed by Yermus’ office for 15 minutes and as being unopposed when that was not the case, the matter was adjourned again, this time to March 19, 2015, when I finally heard it. This was more than 4 years after the date of loss and more than three years after the plaintiff had had her MRI examination. Had the motion been brought on notice and had it been confirmed properly, it likely would have been disposed of about one year earlier. These errors compounded what was already a difficult situation.

[34] There is no evidence from the plaintiff to suggest that Chung was aware of this law suit at any point before he was eventually served with the motion record and two additional Affidavits from Yermus. There are no affidavits of service filed with any of the plaintiff’s materials, but based on the fact that the first date for which notice of the motion was apparently given was November 2014, it is safe to assume that Chung became aware of the motion to add him to this claim shortly before that date. That would have been almost four years after the accident.

[35] I do not accept conjecture from plaintiff’s counsel to the effect that, as Chung knew he was in an accident, he must have anticipated he would be sued. Thankfully, not all motor vehicle accidents result in law suits.

[36] Having heard nothing about any litigation from this incident which occurred when he was backing out of a spot in a parking lot, there is no reason for Chung to have expected a law suit to emerge eventually, nor has the plaintiff suggested one. If the plaintiff was aware of having sustained injuries at the scene, and had she conveyed that to Chung, that may have assisted her argument, but there is no evidence to that effect.

THE LAW, ANALYSIS and CONCLUSION

[37] Section 4 of the Limitations Act, 2002 .RSO 2002, c. 24, Schedule B, provides a two-year limitation period of general application to all law suits, subject to certain narrow exceptions. It reads:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[38] To emphasize the point, section 21 of the Act expressly prohibits the addition of a person to an existing action if the limitation period in respect of a claim against that person has already expired.

[39] As a result of the wording of s. 4 (“Unless this Act provides otherwise), the doctrine of “special circumstances” and the body of case law that has developed around it are no longer available to extend the two year period.

[40] However, the Act has retained the concept of “discoverability”, such that the starting date of a limitation period can be extended based on when the plaintiff discovered that they had a claim. As a result, the two-year period does not necessarily begin to run from the date of the action or inaction that gave rise to the action.

[41] When dealing with a claim in tort, this means the two year period does not start to run until all elements of the cause of action have been discovered. This concept is codified in section 5(1), as follows:

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 or contributed by an act or omission,

(iii) That the act or omission was that of a 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).

[42] In view of subsection (b), it is not sufficient for a plaintiff to simply say they were unaware of items i) – iv) above. Subsection (b) imposes a positive onus on a plaintiff to be proactive, and to use reasonable efforts to identify or locate this information.

[43] In this motion, the plaintiff has two hurdles: she must convince the court that she lacked the identity of the other driver and that she was unaware, until after her MRI examination, that her injuries qualified for relief, under the “permanent and serious” test.

[44] In both regards, the critical issue is what steps the plaintiff took to inform herself of the requisite facts.

[45] The plaintiff relies on s. 267.5(5) of the Insurance Act, RSO, c. I.8, which establishes a statutory threshold for non-pecuniary losses for those injured in a motor vehicle accident, as follows:

Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss including damages for non-pecuniary loss under clause 61 (2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or sustained,

(a) Permanent serious disfigurement; or

(b) Permanent serious impairment of an important physical, mental or psychological function.

[46] There is a body of case law that suggest the commencement of the two-year limitation period will be extended until a plaintiff knows or could have known that permanence and the degree of severity of her injuries are such as to pass threshold based on a reading of this section in conjunction with s. 5(1) of the Limitations Act, 2002.

[47] The plaintiff, herself, has filed case law which makes it clear that she bears the onus is proving this point. In Huang v. Mai, [2014] OJ No. 889, Perell J. stated that:

Given the statutory presumption that a limitation period begins to run from the date of the accident, the onus is on the plaintiff to persuade the court that the seriousness of his or her injury was not discoverable within the applicable limitation period and the plaintiff must also persuade the court that he or she acted with due diligence to discover if there was a cause of action.

[48] His Honour continues stating that the limitation period begins to run when the plaintiff first had an objective appreciation that a proceeding would be an appropriate means to seek a remedy. In the absence of any evidence from the plaintiff, herself, it is not possible for this court to determine when she had an awareness that her injuries could be considered permanent and serious. Absent any clinical notes and records or a report from a treating or expert physician, it would still not be possible to assess whether such a belief would be an objective appreciation, even if the plaintiff had sworn her own affidavit.

[49] Here, as in Huang, the plaintiff believed she had a claim to pursue at some point and she retained counsel. Though he initiated this action, he failed to name Chung as a defendant at the outset, despite the fact that the claim was already being started well beyond the presumptive two-year limitation period. The only explanation given by counsel was that he ordered a plate search – a week after having issued the claim. He does not say when he was given the information by the plaintiff to put him in a position to do so or explain why he brought this motion twice without notice to Chung, which served to delay Chung obtaining knowledge of it for a considerable period of time.

[50] A plaintiff cannot come to court with a deficient record and then claim the amendment should be permitted so the issue can be better explored at trial on a proper evidentiary record. That record ought to have been before this court.

[51] I am at a loss to understand the statement in paragraph 19 of the plaintiff’s factum, to the effect that it is clear that the plaintiff only accumulated a sufficient body of evidence necessary to establish threshold after receiving the December 29, 2011 MRI report. Having opted not to file anything else of a medical nature and having failed to file any evidence from the plaintiff herself, the plaintiff has failed to make her case.

[52] I am also at a loss to understand how the plaintiff expects the court to apply the case of Gluchowski v. Lister 2014 ONSC 2190, [2014] OJ No. 2009 to these facts. The very passage they cite from it refers to the varied medical opinions referred to by the parties and the various interpretations they each advanced as to their meaning. It was in that context that the master felt that it was not in the interest of justice for him to determine the issue of discoverability and the ultimate issue of threshold at that time.

[53] The evidence before me is very different and sparse in the extreme. There is no body of medical evidence before this court, nor varied medical opinions. There is only one opinion, that contained on the MRI report, and nothing earlier to compare it to in order to determine if this could be considered the deciding factor, in the context of the objective appreciation test.

[54] As the plaintiff had the onus of persuading the court that this amendment should be granted despite the apparent expiry of the presumptive limitation period, I find that the absence of evidence from her and from her physicians is fatal to this motion.

[55] In terms of determining Chung’s identity, I am not persuaded that the plaintiff in this case acted with due diligence to identify Chung, having had his plate number from the time of the accident, nor do I accept that the “pointing finger” is one he ought to have been aware of here. On what basis can the plaintiff claim that Chung had knowledge that he was the intended defendant in an action he would have known nothing about? (see Lloyd v., Clark 2008 ONCA 343, [2008] OJ 1682).

[56] In Holder v. Wiazowski [2011] OJ No. 4152, I cited several cases which speak of a plaintiff not having the name of the defendant they ought to have sued because they took no steps to obtain it (see Urie v. Peterborough Regional Health Centre [2010] )J 3962; Dukoff et al. v. Toronto General Hospital et al. 1986 CanLII 2648 (ON SC), [1986] OJ 188; O’Sullivan v. Hamilton Health Sciences Corp. 2011 ONCA 507, [2011] OJ 3161). I concluded there:

While the plaintiff here did not have the correct name earlier, that is only because she failed to request it.

[57] I do not see this case as one involving a classic misnomer. The action was started beyond the expiry of the presumptive limitation period, naming Doe as a defendant, though the plaintiff had in hand a piece of paper with Chung’s plate number. There is no evidence of her having taken any steps to identify him so that, at the very least, he would have been made aware of this litigation, though beyond the expiry of the presumptive limitation period, far earlier than has been the case. None of this has been explained.

[58] While the courts are prepared to override limitation periods where there has been a misnomer, the misnomer must be clear and the delay in discovering the identity of the tortfeasoer must be explained (see Urie, supra). The plaintiff fails here, too.

[59] If I am not correct and a higher court finds that the failure to name Chung does qualify as a misnomer, I rely on the master’s decision in Mohabir v. Mohabir [2014] OJ No. 4440. There, Master Muir noted that even in the case of correcting a misnomer, the court can refuse to grant the relief sought pursuant to its residual discretion under Rule 5.04. In view of the very sparse record before this court, I also exercise my discretion against granting this relief if it is found to have been only a misnomer.

[60] Although I have expressed serious concerns regarding whether the action, as currently constituted, can withstand the failure to issue process within the presumptive limitation period, I am not tasked with making a final determination with respect to that issue. My analysis of the issue was necessary for the purpose of the motion, however, in view of this residual discretion referred to above. Why make Chung a party to an action that already appears to be offside the presumptive limitation period on the strength of this evidentiary record?

[61] On the basis of all of the foregoing, the motion is dismissed.

COSTS

[62] A considerable amount of time was wasted in court during this hearing as moving counsel refused to accept findings of fact I was making along the away, continuing to frame her submissions on the basis of facts I had found were not supported by the evidence. I should not have had to remind her repeatedly not to do so.

[63] Moving counsel also raised several submissions that were specious, some of which I refer to in these Reasons.

[64] At the end of the day, this matter finally came before me after four motion days were booked for it, three of which were adjourned as a result of errors made by moving counsel. This affected responding counsel on one occasion, but each time a party books a motion that does not proceed because of their error, it wastes court time. Court time is an irreplaceable resource.

[65] Finally, this motion was somewhat of a moving target – the first affidavit suggested that the only issue the plaintiff relied onto support her claim of misnomer was the fact that she was not aware of Chung’s identity. By the second affidavit, the motion had expanded to include the issue of discoverability vis a vis the plaintiff’s alleged discovery of when her injuries met threshold. There is no explanation for why that was not raised initially.

[66] Even then, no evidence at all was appended to support this claim. In the end, only the MRI report was tendered – and only in the third affidavit, delivered after the responding party took issue with the lack of materials in their materials.

[67] These factors caused the costs to exceed what ought to have been within the parties’ reasonable contemplation. Although this justifies the need for more hours spent on the motion by responding counsel than should have been necessary, I am of the view that the time devoted to it is still on the high side, though I have no difficulty with the hourly rate.

[68] Accordingly costs of the motion are payable to the responding party, within 30 days, fixed at $5,500.

Master Joan M. Haberman

May 28 2015