SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 375/15

DATE: 2015-11-24

RE: MARIE-LINE HURLEY, Plaintiff

AND:

HELEN SIYAMALA PUNITHARANJAN and STOCK TRANSPORTATION LTD., Defendants

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL:
William G. Scott, for the Plaintiff

Kara L. Denny, for the Defendants

HEARD: In Writing

ENDORSEMENT

Introduction

[1] The defendants, Helen Siyamala Punitharanjan and Stock Transportation Ltd. (collectively, the “defendants”), seek leave to appeal from the order of Hood J. dated July 6, 2015 (the “Order”), which dismissed the defendants’ motion for summary judgment.

Background

[2] The plaintiff, Marie-Line Hurley (the “plaintiff”), was injured in an automobile accident that occurred on July 25, 2007 (the “First Accident”). She was subsequently injured in a second automobile accident that occurred on September 8, 2008 (the “Second Accident”). The Second Accident took place when she was a passenger in a bus owned and operated by Mississauga Transit that was in a collision with another bus owned by Stock Transportation Ltd. and driven by Ms. Punitharanjan.

[3] The plaintiff retained counsel to make a claim in respect of the First Accident. Counsel issued a statement of claim on June 30, 2009 asserting that the plaintiff had suffered “serious and permanent” threshold injuries as a result of the First Accident.

[4] On August 23, 2010, the same counsel issued a statement of claim in respect of the Second Accident asserting that the plaintiff suffered a “serious and permanent impairment of important physical, mental and psychological functions”. However, the statement of claim named as defendants only the Corporation of the City of Mississauga and the driver of the bus in which the plaintiff was a passenger (collectively, the “Mississauga defendants”). On June 27, 2011, the Mississauga defendants issued a third party claim against the defendants.

[5] The plaintiff commenced a separate action against the defendants on January 23, 2012. In this action, the plaintiff similarly asserted that she had sustained a “serious and permanent impairment of important physical, mental and psychological functions” in the Second Accident. In the statement of claim for this action, the plaintiff pleaded that she first discovered that her injuries were both serious and permanent when she received opinions from medical experts in or about March 2010. Contrary to earlier advice that she would make a full recovery, these medical reports indicated that her pain and impairments had become chronic.

[6] The defendants moved for summary judgment arguing that the action against them was statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Act”).

[7] The question for the motion judge was effectively whether the limitation period for commencement of the plaintiff’s tort claim had been extended by virtue of the provisions of the Act, specifically sections 5(1)(a) and (b), such that the plaintiff’s claim was not discoverable prior to January 23, 2010. The motion judge dismissed the motion on the basis that whether there is a limitation defence is a genuine issue requiring a trial.

Test for Leave to Appeal

[8] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[9] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: see Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[10] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: see Nazari v. OTIP/RAEO Insurance Company Inc., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J., per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: see Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J., per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

[11] I also note that the Supreme Court has held in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81, that whether there is a genuine issue requiring a trial is a question of mixed fact and law which should not be overturned absent a palpable and overriding error.

Analysis

[12] I will address in turn the operation of each branch of the test in respect of the defendants’ motion for leave to appeal.

The Test Under Rule 60.02(4)(a)

[13] The defendants allege that the Order conflicts with the decision of the Supreme Court in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549. In Peixeiro, at para. 44, the Supreme Court held that the limitation period does not begin to run “until it is reasonably discoverable that the injury meets the threshold…”

[14] The motion judge stated that what is required for a limitation period to begin running 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.” The defendants argue that this is a much higher test than the test articulated in Peixeiro.

[15] I am not persuaded that the motion judge applied a different test from that articulated in Peixeiro. It is clear from paragraphs 8 and 9 of the motion judge’s reasons dated July 6, 2015 that he was applying the test in Peixeiro:

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.

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…. [italics added]

[16] Further, I disagree with the defendants’ suggestion that the test applied by the motion judge has been discredited by the Court of Appeal in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75. Lawless involved a very different issue – the date of discoverability of a medical malpractice claim in negligence, rather than a threshold injury, and the necessity for a written medical opinion in the circumstances of that case after an oral opinion had been expressed. In the present case, there was no equivalent to the oral opinion expressed to the plaintiff in Lawless. The evidence to which the motion judge refers did not establish that the plaintiff suffered a threshold injury in accordance with the test of discoverability in Peixeiro.

[17] Accordingly, there is no conflicting decision for the purposes of this branch of the Rule.

[18] In any event, there is no basis for concluding that it is desirable that leave to appeal should be granted. As the motion judge noted, the issue is very fact specific and is properly addressed in a trial which can properly assess the factual nexus pertaining to the plaintiff’s knowledge of her injuries.

[19] I note that, in its submission regarding the existence of a conflicting decision, the defendants also argue that the motion judge ignored the significance of an MRI scan described below and effectively eliminated the reverse onus established in subsection 5(2) of the Limitations Act. These are issues, however, that engage the correctness of the decision of the motion judge and are therefore addressed in the next section.

The Test Under Rule 60.02(4)(b)

[20] The defendants argue that there is good reason to doubt the correctness of the decision of the motion judge for four reasons.

[21] First, the defendants argue that the motion judge misapprehended the evidence in reaching his conclusion that none of the medical opinions received by the plaintiff “made it clear she had a threshold injury or ought to have known of her situation”.

[22] The defendants’ principal argument in this regard is that the motion judge misapprehended the evidence in failing to refer to an MRI scan conducted on April 16, 2009 (the “MRI Scan”) and thereby made a palpable and overriding error. The MRI Scan revealed a bulging at L3/4 and 4/5 of the plaintiff’s lumbar spine. The defendants say this information constituted objective evidence upon which it was reasonably discoverable that the plaintiff had suffered a threshold injury. On this basis, the defendants say that the plaintiff’s case was discoverable as of April 16, 2009.

[23] As an additional argument, the defendants suggest that there is further evidence of a threshold injury in the form of a functional abilities evaluation dated December 3, 2008, an orthopaedic assessment dated February 5, 2009 and a neurological assessment dated August 11, 2009. The defendants say that these three reports, together with the MRI Scan, satisfied the test of discoverability in Peixeiro.

[24] I do not agree. The MRI Scan requires interpretation by a medical expert. There is no evidence of any expert opinion that the condition described therein constitutes a threshold injury. The functional abilities evaluation addressed only the plaintiff’s “current level of functioning” with respect to her pre-accident employment, housekeeping and home maintenance activities. It provided no prognosis, nor could it given that it was not a medical report. The orthopedic assessment expresses a guarded prognosis. The neurological assessment similarly expresses a guarded prognosis in terms of a complete recovery. In short, none of these reports establishes the absence of a genuine issue for trial regarding whether the plaintiff suffered a threshold injury.

[25] Second, the defendants argue that the motion judge erred in finding that the plaintiff had acted with due diligence. The defendants argue that there is no evidence of due diligence on the part of the plaintiff or her counsel that could have extended the limitation period by the application of the discoverability doctrine. The comments of the motion judge regarding the due diligence issue have been set out above.

[26] The defendants make a number of arguments. Principally, the defendants say that the motion judge mistook attending for treatment and obtaining assessments pursuant to the no-fault statutory accident benefits regime for obtaining medical evidence relative to the plaintiff’s action against the defendants. They say that the plaintiff did not begin to seek medical advice regarding the extent of her injuries for a tort claim until September 10, 2010 and that there is no credible evidence of any other due diligence from the plaintiff’s counsel. On this basis, the defendants say the motion judge failed to apply paragraph 5(1)(b) and section 5(2) of the Act correctly.

[27] This issue turns in part on the significance of the medical and other advice that the plaintiff received prior to September 8, 2010. Apart from the contradiction in the plaintiff’s position, given its reliance on the medical opinions referred to by the defendants in the preceding argument, the motion judge could properly conclude that there is a genuine issue for trial as to whether such medical advice evidenced a threshold injury, even if it was provided for purposes of a no-fault benefit claim. The defendants also assert that the issue turns on the credibility of the plaintiff’s counsel, whose evidence is important on the issue of discoverability. However, these are disputed factual issues that could not be resolved on the documentary record before the motion judge. There is no basis for a finding on these issues in the absence of a trial.

[28] The remaining issues are very clearly matters that require a trial for determination. The defendants say that the motion judge erred in law by concluding that the discoverability of the plaintiff’s threshold case rested solely on her counsel’s opinion and that the plaintiff’s beliefs were not relevant. As a related matter, they argue that the motion judge erred in disregarding the plaintiff’s actual knowledge of the severity of her injuries. Lastly, the defendants argue that the motion judge misapprehended the rules of pleading and the Rules of Civil Procedure in discounting the significance of the plaintiff’s pleading — that she had sustained a serious and permanent impairment of important physical, mental and psychological functions — in the statement of claim dated August 23, 2010 that was issued in the action against the Mississauga defendants.

[29] While the plaintiff might have known that she had suffered a serious injury, the question of whether she knew on her own that her injuries constituted a threshold injury could not be established on the paper record before the motion judge. Similarly, any inference to be drawn from the pleading of a serious and permanent impairment in the statement of claim issued in the action against the Mississauga defendants requires a determination of a rather extensive factual nexus or background.

[30] In conclusion, I reiterate that the issue on this leave application is whether there is good reason to doubt the correctness of the motion judge’s determination that there is a genuine issue for trial regarding the timing of the discoverability of the plaintiff’s claim. Based on the foregoing, I am not persuaded that there is good reason to doubt the correctness of the motion judge’s decision in this regard.

[31] I think the defendants have lost sight of the fact that the motion judge was dealing with a summary judgment motion. The motion judge did not rule out the possibility that the various reports and other circumstances upon which the defendants rely may individually or collectively satisfy the test for discoverability after a trial. He merely concluded that there was a genuine issue for trial on the basis of the evidence before him. Given the credibility issues upon which the defendants rely and the fact that none of the medical reports before the motion judge opines that the plaintiff’s injuries constituted, on a balance of probabilities, a “serious and permanent” injury such that it met the requirements of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, the defendants have not established a good reason to doubt the correctness of the Order.

[32] Regardless of the merits of the defendants’ position, the proposed appeal also does not involve any matter of such importance that leave should be granted. The issues involved pertain solely to the parties to this litigation. The proposed appeal does not raise any questions of general or public importance relevant to the development of the law or to the administration of justice. Moreover, the defendants remain at liberty to assert all of their arguments at trial.

Conclusion

[33] Based on the foregoing, leave to appeal is denied. Costs in the amount of $1,168.86, on an all-inclusive basis, being the costs sought by the plaintiff, are awarded in favour of the plaintiff payable forthwith.

Wilton-Siegel J.

Date: November 24, 2015