SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-CV-453311
DATE: 20150706

RE: VERONICA FERRO, Plaintiff

AND:

MELISSA SUE COURNEYEA and DEBRA E. VICKERMAN, Defendants

BEFORE: K. HOOD J.

COUNSEL: Susan M. Sack, for the Plaintiff
Michael Unea, for the Defendant Courneyea

HEARD: July 3, 2015

ENDORSEMENT

[1] The plaintiff was in a car when it was hit from behind by the defendant Ms Courneyea. This took place on September 25, 2008.

[2] The plaintiff started her claim on May 10, 2012. The defendant brings a motion to have her claim dismissed as barred by the Limitations Act, 2002, S.O. 2002, c.24.

[3] What is at issue is whether it was discoverable pursuant to s.5 of the Limitations Act, 2002 that she had sustained an injury that met the requirements of s.267.5(5) of the Insurance Act, RSO 1990, c.18 prior to May 10, 2010, two years prior to her claim being issued. The onus is on the plaintiff to prove she did not discover the claim prior to this date.

[4] I am satisfied on the material filed on this motion that the plaintiff’s claim is not statute barred and she is entitled to a partial judgment dismissing the defendant’s limitation defence.

[5] As stated by Perell J. in Zhu v. Matadar, 2015 ONSC 178 at para 21:

Under s.5 of the Limitations Act, 2002 and under the common law principle of discoverability, a claim for damages arising out of a motor vehicle accident that is subject to a statutory threshold is not discovered until there is a sufficient body of medical evidence to satisfy a Court on the balance of probabilities that the plaintiff has sustained an injury that will meet the requirements of s. 267.5(5) of the Insurance Act.

[6] S.267.5(5) of the Insurance Act requires a permanent and serious impairment of an important physical, mental or psychological function in order for the plaintiff to recover damages as a result of the motor vehicle accident.

[7] The defendant argues that the plaintiff knew or ought to have known from the date of the accident that she had permanent and serious injuries based upon, among other things, her headaches, her decreased mobility, her shoulder injury and her inability to work.

[8] The argument ignores the plaintiff’s pre-existing medical condition which complicates matters and the evidence from her discovery which was reviewed by Ms Sack before me showing the overlap between her pre and post-accident symptoms.

[9] This also ignores the plaintiff’s uncontradicted evidence as set out in her responding affidavit that her injuries from the car accident changed over time, some got better and some worse, and even her frozen left shoulder had improved with physiotherapy. She also stated that she did not know until after May 10, 2010 that her injuries were permanent and had never been advised otherwise by any of her treating doctors or therapists.

[10] I recognize that this analysis is not entirely subjective and a plaintiff cannot simply state they had no idea as to the permanence or severity of her injury like the plaintiff in Yelda v. Vu, 2013 ONSC 4973 (Ont.S.C.J.). There the plaintiff waited almost 9 years to issue her claim and the court found that at the very least, taking an objective view, she should have started her claim within 6½ years of the accident. Justice Perell has called it, in Huang v. Mai, 2014 ONSC 1156 (Ont. S.C.J.) at paragraph 38, an objective appreciation.

[11] As stated by Justice Langdon in Ioannidis v. Hawkins, (1998) 14822 (ONSC), at page 7 and as followed in numerous decisions:

the question is not whether the plaintiff believes that her injury meets the criteria but whether there is a sufficient body of evidence available to be placed before a judge that, in counsel’s opinion, has a reasonable chance of persuading a judge, on the balance of probabilities, that the injury qualifies.

[12] In making this assessment Justice Langdon also held:

a) there may be contradictory assessments among doctors;

b) the assessment of injuries is a highly individual matter which requires great delicacy;

c) the timing of the running of the limitation period is a very individual and complicated determination; and

d) the court should grant the plaintiff a degree of latitude before declaring the limitation period has begun to run.

[13] The defendant argues that the plaintiff failed to exercise due diligence in gathering the facts necessary to determine whether she had permanent and serious injuries.

[14] I find the opposite. Following the accident she almost immediately saw her family doctor, Dr. Murray and thereafter saw numerous doctors and underwent a variety of assessments. In September, 2008 she had x-rays which were inconclusive. She then went to physiotherapy. In December, 2008 there was a Home Site Assessment. In January, 2009 she saw her family doctor who concluded her prognosis was unknown and whether her treatment of physiotherapy was to continue depended upon how it worked out.

[15] She changed family doctors to Dr. Cocoria and on January 23, 2009 he made a note, which is relied upon by the defendant that her left arm pain, shoulder/upper arm pain was chronic and constant. The defendant argues that at this point, at the very least, the limitation period began to run.

[16] In a similar situation the Court of Appeal in Grewal v. Ivany, 2008 ONCA 687 at para 10 held that the meaning of a notation in a medical chart of chronic pain is unclear. Most of the chart notations were undecipherable and no explanation of the notation was available. While in the matter before me the handwriting itself can be deciphered there certainly is no explanation of what this means or how it impacted upon the plaintiff.

[17] As stated by Justice Belobaba in Pereira v. Contardo, an unreported endorsement dated May 12, 2014 it is one thing to know you have constant pain. It is quite another thing to be told that the pain has been medically diagnosed as Chronic Pain to clear the permanent and serious threshold.

[18] Moreover the plaintiff, while not specifically referring to this notation, states in paragraph 24 of her affidavit that none of her doctors told her that she had Chronic Pain Syndrome and was never referred to a Chronic Pain Clinic to be treated or investigated as to the possibility that she was suffering from Chronic Pain.

[19] In July, 2009 the plaintiff is sent by Dr. Cocoria for an ultrasound, not to a Chronic Pain Clinic. In November, 2009, he sends her for an MRI. In March 2010 she sees an orthopedic surgeon who injects her frozen left shoulder with cortisone. This doctor doesn’t suggest that her frozen left shoulder is permanent, in fact he arranges a follow up in three months’ time to see how the injection worked.

[20] In March, 2010 she also has a number of assessments which are for the most part inconclusive as to her prognosis and the cause of her shoulder problems which conclude that further recommendations may be warranted following the results of the steroid injection which seemed to have helped her situation.

[21] In June, 2010 she sees Dr. Chen. In his report he states that in his opinion the plaintiff’s impairments are serious and permanent. This is the first time such an opinion is given, despite the numerous doctors and assessors she sees following her accident. It was not until that time she discovers or ought to have discovered she has an injury which meets the threshold requirements of the Insurance Act.

[22] For the above reasons I dismiss the defendant’s motion for summary judgment. On the material before me there is no medical evidence before June 21, 2010, the date of Dr. Chen’s report, which supports the threshold requirements of serious and permanent injury. I find the plaintiff’s claim to be timely.

[23] I grant the plaintiff a partial summary judgment dismissing the limitation period defence. She will however have to prove that she has a claim which satisfies the threshold, whether the defendant is liable to pay damages and the extent of her injuries.

[24] As discussed by Justice Perell in Huang v. Mai, 2014 ONSC 1156 there is nothing to be gained by me remaining seized of this matter and I decline to exercise my discretion to do so.

[25] As to costs, I was provided with a costs outline from the defendant and a bill of costs by the plaintiff. The numbers are quite different. If the parties cannot agree about costs, after receiving this endorsement they may make very brief submissions in writing of no more than three pages, excluding supporting documents, beginning with the plaintiff’s submissions within 20 days of the release of this endorsement followed by the defendant’s submissions within a further 20 days.

K. HOOD J.

Date: July 6, 2015