SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-444630

DATE: 20150706

RE: MARIE-LINE HURLEY, Plaintiff

AND:

HELEN SIYAMALA PUNITHARANJAN and STOCK TRANSPORTATION LTD., Defendants

BEFORE: K. HOOD J.

COUNSEL:
William G. Scott, for the Plaintiff

B. Leanne Rapley, for the Defendants

HEARD: June 23, 2015

ENDORSEMENT

[1] What is at issue on this motion is whether it was discoverable that the plaintiff sustained an injury that met the requirements of s.267.5(5) of the Insurance Act as a result of a September 8, 2008 motor vehicle accident prior to January 23, 2010, as the claim against these defendants was issued January 23, 2012.

[2] What is not at issue is whether the plaintiff in fact discovered, subsequent to January 23, 2010, that she had actually sustained an injury that met the requirements of the Insurance Act.

[3] On August 23, 2010, less than two years from the accident itself, plaintiff’s counsel, Mr. Wolfe, while not having an opinion as to whether the plaintiff’s injuries met the threshold issued a claim. He states he did so in order to avoid any limitation arguments. Regrettably he failed to name the Stock defendants and only named the City of Mississauga. His acknowledged mistake led to this motion.

[4] The matter is somewhat complicated by the fact that the plaintiff was involved in another motor vehicle accident on July 25, 2007 and was seeing numerous doctors and assessors in relation to this accident and obtaining reports relating to this accident while at the same time seeing doctors and assessors in relation to the second accident.

[5] I dismiss the defendants’ motion on the basis that whether there is a limitation defence is a genuine issue requiring a trial. The plaintiff acknowledged that this was not a case where the corollary order dismissing the limitation defence should be made. This defence remains an issue for trial as does the question of whether the plaintiff has in fact sustained a threshold injury and whether the defendants are liable to pay damages.

[6] One might be tempted to think that being rendered unconscious and vomiting upon regaining consciousness and having liquid leaking from one’s ears while injuring your right knee would be enough to come to the conclusion that you had suffered injuries that met the threshold. However while the injuries may have been serious, at that time no one could say they were permanent. Moreover, it is not a subjective test, what the plaintiff might think is not really relevant. What is required 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.” (See Zhu v. Matadar, 2015 ONSC 178 at para 21.). This is also what the Court held in Ioannidis v. Hawkings (1998), 3d O.R. (3d) 427:

“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.”

[7] As Justice Langdon went on to state “the court must afford a degree of latitude to a plaintiff in making this very individual and complicated determination.”

[8] I have read all of the medical reports and assessments contained in the motion record and responding motion record. Nowhere does one of the doctors or assessors clearly state that the injuries suffered in the second accident are permanent and serious. Many of the reports deal only with the first accident, some conflate the two accidents, some seem to talk about the injuries from the second accident perhaps being serious but none seems to suggest that the injuries from the second accident are permanent. They suggest, among other things, further treatment and therapy, follow up assessments, and provide a lack of prognosis or a guarded one.

[9] The plaintiff must act with due diligence. Limitation periods are not enacted to be ignored. I find the plaintiff did act with reasonable diligence. She saw numerous doctors and consultants both before and after January 23, 2010, being the last date for her limitation period to commence. It wasn’t as if she sat back and did nothing. She obtained numerous medical opinions. None of them made it clear she had a threshold injury or that she ought to have known of her situation. Mr. Wolfe testified that despite this he decided to issue a claim. Unfortunately he didn’t name the correct defendants.

[10] The fact that he pleaded the plaintiff had a threshold injury is of no moment. It is not determinative. No more than the defendants denying that the injuries have met the threshold and thereby arguably not having the limitation period starting to run.

[11] The motion is therefore dismissed. Despite Hryniak I see no benefit in remaining seized of this. I decline to exercise my discretion to remain seized. I have made no findings about the evidence presented on the motion and the various reports beyond finding that there is a genuine issue for trial about whether the claim is statute-barred. Both sides acknowledge that the threshold issue remains alive for trial.

[12] As to costs, I would think that the parties can agree on the matter of costs, especially considering Mr. Wolfe’s acknowledged mistake which has led to this motion. If they can’t agree they may make very brief submissions of no more than three pages plus attached back up information, with the plaintiff’s within 20 days of the release of this endorsement followed by the defendants’ submissions within a further 20 days.

K. HOOD J.

Date: July 6, 2015