Court File and Parties

COURT FILE NO.: CV-10-411226 DATE: 20160420 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JUDITH SORITA Plaintiff – and – TORONTO TRANSIT COMMISSION, EDWIN SORITA and MARIA JOWEN SORITA Defendants

COUNSEL: Fawad Siddiqui, for the Plaintiff Cary Schneider, for the Defendants, Edwin Sorita and Maria Jowen Sorita

HEARD: February 18, 2016

S.A.Q. Akhtar J.

Factual Background and Overview

Background Facts

[1] The defendants bring a motion pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a summary judgment dismissing the plaintiff’s action on the basis that it violates section 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (“the Act”), as a claim brought after the expiry of the statutory time limit.

[2] On 14 November 2007, the plaintiff was involved in a car accident as a passenger in a car owned and operated by the co-defendants, Edwin and Maria Sorita. At approximately 3:15 pm that day, Maria Sorita was driving westbound on Queen Street in Toronto at the intersection of Sunnyside Drive when she swerved around a pylon and was hit by a Toronto Transit Commission (“TTC”) streetcar.

[3] The plaintiff alleges that the TTC driver was negligent and operated the streetcar in an unsafe manner, the Soritas were negligent by permitting a defective motor vehicle to be driven on a public road, and Maria Sorita drove the car without proper care and control.

[4] The plaintiff claims that, immediately following the accident, she experienced pain and consequently sustained injuries constituting permanent and serious impairment within the meaning of section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.

[5] On 27 September 2010, she brought an action against the defendants to recover damages.

[6] The question in this particular motion is when the plaintiff discovered her cause of action.

Chronology of the Medical Evidence

[7] The plaintiff testified at her discovery that her whole body felt numb immediately after the accident. The plaintiff also testified that the migraines she had suffered from prior to the accident developed into severe headaches after the accident.

[8] 15 November 2007 - She attends her family doctor, Dr. Benito Lim, to report her symptoms, and is prescribed Tylenol 3 with a referral to physiotherapy.

[9] 12 December 2007 - Dr. Francis Martin at the St Joseph’s Health Centre notes that the plaintiff suffered from Major Depressive Disorder. Significantly, Dr. Martin records that the plaintiff felt “that the car accident has had residual negative effects.” Dr. Martin’s view is that the plaintiff’s recovery from the depression had been complicated by the accident.

[10] January 9, 2008 - The plaintiff attends St. Joseph’s Health Centre and is seen by Dr. Francis Martin, who notes that “headaches are still somewhat of a problem but are helped with painkillers”.

[11] 13 January 2008 - The plaintiff’s medical history details observations of complaints of headaches accompanied by nausea.

[12] 14 March 2008 - The plaintiff visits Dr. Bryan Temple, a neurologist, who notes that she has been “having headaches daily all day long” and grades those headaches as being “severe”. Dr. Temple indicates that the headaches are associated with nausea and, on rare occasions, vomiting, which awakens her from sleep every two to three days.

[13] 18 April 2008 - A medical report is prepared by Dr. Maria Bismonte stating that the plaintiff had “started to experience symptoms of hyper vigilance, flashbacks, nightmares and obtrusive and recurrent thoughts of the accident”. Dr. Bismonte adds that the plaintiff’s “panic attacks came back”. The plaintiff’s weight loss, lack of sleep, forgetfulness and lack of concentration is also recorded by Dr. Bismonte. The plaintiff is noted as being of “very low energy” and spending “most of the time in bed.” Dr. Bismonte further indicates that the car accident “has brought forth this constant pain in the relapse of her depression is affected her life so much. The future seems bleak”.

[14] 22 April 2008 - The plaintiff once again met with Dr. Lim who recorded that she continued to complain of migraine headaches and indicated that the plaintiff could no longer see objects five feet away. The plaintiff requested a referral to an eye specialist.

[15] 1 May 2008 - Dr. Hermanus Van der Spuy, in preparing a psychological assessment, describes the plaintiff as complaining of headaches and pain to the left side of her head at least once per day. This pain apparently lasts approximately 40 minutes to two hours and is at “nine out of 10 on the pain scale”. The plaintiff informs Dr. Van der Spuy that these headaches are “regular”. Dr. Van der Spuy further notes that the depression previously suffered by the plaintiff “was almost resolved by the time of the accident.” However, since then, the depression has worsened with the plaintiff complaining of a decline in her energy level and motivation “by 90 %”. The plaintiff claims she has no enjoyment of life left and describes herself as feeling worthless and of having weekly suicidal ideations.

[16] With respect to her pain, Dr. Van Spuy records that “the pain has not changed at all” and takes the view that it is chronic pain. Additionally, the plaintiff informs Dr. Van der Spuy that she has “lost interest in sex completely and her sex life had stopped.” Dr. Van Spuy concludes that “it should be clear that most of the above symptoms and conditions are directly accident-related.”

[17] 9 May 2008 - Dr. Bismonte completes a Treatment Plan outlining her diagnosis of the plaintiff: depression, post-traumatic stress disorder and chronic pain.

[18] 9 July 2008: The plaintiff attends Trillium Health Centre and is seen by Dr. Sashikala Senthelal, who records that the plaintiff continues to complain of severe headaches and dizziness. Dr. Senthelal notes that the plaintiff suffered from “a lot of pain in her back.”

[19] 22 July 2008: Dr. Lim recorded the plaintiff’s complaints of pain in her lower back that was getting worse.

[20] 5 August 2008 - Rica Leo of the Health Recovery Group conducts an In-Home Occupational Therapy Assessment. The plaintiff repeats descriptions of the symptoms previously diagnosed by her doctors. Ms. Leo reports the physical difficulties caused by the plaintiff’s back pain, which limits her abilities to perform household duties. Ms. Leo recommends that assistance be provided.

[21] 7 August 2008 - Dr. Temple examines the plaintiff and reports that she is experiencing “chronic” headaches which radiate to the left side of her head on a daily basis. Those headaches are occasionally associated with nausea. More severe headaches occur “once every one to two weeks” and become worse with activity. A CT scan, however, shows everything as being normal.

[22] 25 September 2008 - Dr. John Crawford conducts a chiropractic assessment on the plaintiff. His detailed report describes the neck and lower back pain afflicting the plaintiff. The plaintiff explains that pain occurs on a daily basis and affects her ability to walk. Dr. Crawford diagnoses the plaintiff to have chronic pain caused by the motor vehicle accident.

[23] 9 October 2008 - Dr. Crawford’s report is sent to the plaintiff’s insurers.

Legal Principles

The Statutory Provisions

[24] Section 4 of the Act reads as follows:

4. 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. Section 5 of the Act deals with the date upon which the claim is discovered:

5. (1) 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 by or contributed to by an act or omission,

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

[25] Importantly, s. 5(2) of the Act imposes a presumption that a claimant knows of the claim on the day the act or omission upon which the claim is based took place, unless the contrary is proven.

[26] As noted earlier, Ontario’s restriction on motor vehicle accident claims is contained in s. 267.5 of the Insurance Act, which provides:

(5) Despite any other Act and subject to subsection (6), 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 has sustained,

(a) permanent serious disfigurement; or

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

[27] Ontario’s no-fault insurance scheme means that, in the Insurance Act context, the limitation clock begins to run when the plaintiff becomes aware that their injuries constitute “permanent serious impairment”. To otherwise commence an action is futile, as no evidence would have been available of a qualifying injury: Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 32. Additionally, the plaintiff in a motor vehicle claim is not required to commence an action before they know that they have a "substantial chance" of success: Everding v. Skrijel, 2010 ONCA 437, 100 O.R. (3d) 641, at para. 11. The inquiry to be undertaken is “whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”: Lawless v. Anderson, 2011 ONCA 102, at para. 23.

Due Diligence

[28] Due diligence assumes an important role in determining the date upon which the plaintiff “first ought to have known” of their claim. Section 5(2) of the Act places an onus on the plaintiff to rebut the presumption that the claim was known on the date of the accident. In discharging this onus, the plaintiff must show that they used reasonable diligence in discovering the facts in issue: Farhat v. Monteanu, 2015 ONSC 2119, 125 O.R. (3d) 267, at para. 34; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, at paras. 12-14. The corollary of this approach is that, in examining due diligence, the motion judge’s inquiry will be focused on whether there was a reasonable explanation why the discovery could not have been determined earlier through the exercise of reasonable diligence: Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648 (C.A.), at para. 16. A plaintiff’s failure to provide such an explanation equates to a failure to rebut the statutory presumption with the consequence that their action is statute barred: Wakelin v. Gourley (2005), 76 O.R. (3d) 272 (S.C.J), at para. 15.

What Was the Discoverability Date?

[29] The defendants take the position that the plaintiff ought to have known of her claim well before the limitation period expired. They point to the numerous medical reports outlining the extent of the plaintiff’s injuries and various diagnoses of chronic pain. With this knowledge, they assert that the limitation period commenced on 14 March 2008.

[30] The plaintiff concedes that her symptoms were apparent from an early stage in the proceedings. However, she argues that the presence of symptoms alone was insufficient to start the limitation clock. In her submission, the causal link of those symptoms to the accident, the extent of the damage and the question of whether her injuries constituted “permanent serious impairment” were not revealed until 9 October 2008 when she received Dr. Crawford’s report.

[31] I disagree with the plaintiff’s contention for the following reasons.

[32] There is some evidence that the plaintiff was experiencing psychological difficulties prior to the accident. In July 2007, she had taken a leave from work to go on short-term disability as a result of stress and depression related to her employment. Her psychiatric treatment involved the use of antidepressants. However, on 1 May 2008, the plaintiff told Dr. Van der Spuy that any pre-existing psychological issues were “almost resolved” on the date the accident occurred. Further, in discovery, the plaintiff made clear that she had no physical injuries prior to the accident.

[33] It is clear that the plaintiff blamed both her physical pain and her worsening psychological condition on the accident itself. The headaches that she suffered were reported as early as 9 January 2008 and grew steadily worse thereafter. The chronology set out in preceding paragraphs demonstrates that the plaintiff’s condition worsened even after several attempts at treatment.

[34] The plaintiff identifies Dr. Crawford’s diagnosis and report as being the first occasion upon which she ought to have known of that her injuries fell within the definition contained in the Insurance Act. However, the chronic pain diagnosed by Dr. Crawford on 25 September 2008 had already been reported by the plaintiff to Dr. Van der Spuy on 1 May 2008, whose report concluded that the plaintiff fulfilled the criteria for:

• Post-traumatic Stress Disorder
• Mixed Anxiety and Depressive Disorder
• Specific Phobias (automobile anxiety as a driver and a passenger)
• Posttraumatic Headaches
• Other Chronic Pain
• Problems in relationship with spouse or partner
• Functional Limitation

[35] Dr. Van der Spuy further added that most of the symptoms related directly to the TTC collision.

[36] Eight days later, Dr. Bismonte again diagnosed the plaintiff’s symptoms as “chronic pain”. The plaintiff’s complaints of the pain continued through her July and August visits to physicians.

[37] As noted, the plaintiff concedes that Dr. Crawford’s report was sufficient to trigger the limitation period. I see no difference between Dr. Crawford’s diagnosis and that of Drs. Van der Spuy and Bismonte in May 2008. If the plaintiff ought to have known that she had a cause of action upon receiving Dr. Crawford’s diagnosis of chronic pain, it is difficult to understand why that was not the case when diagnosed by Dr. Bismonte five months earlier. Dr. Crawford’s report mentions, in a single line, that the plaintiff suffers “chronic pain”. There is nothing new in Dr. Crawford’s report nor, unlike the previously prepared reports, does it contain any detailed analysis of the plaintiff’s chronic pain.

[38] By 9 May 2008, there was a substantial body of evidence that could have been used to overcome the Insurance Act threshold. In my view, at this point, if not earlier, the plaintiff knew or ought to have known of her action against the defendants. It should be noted that further medical visits in July and August 2008 continued to record her pain and suffering.

[39] In light of the plaintiff’s medical history, I find that the time at which the limitation period began to run was 9 May 2008. I therefore conclude that, by commencing her action on 27 September 2010, the plaintiff’s action was statute barred by the operation of s. 5 of the Act.

[40] Accordingly, the defendants’ motion for summary judgment is granted and the action is dismissed.

Costs

[41] I have reviewed both sets of cost outlines submitted by the parties. Rule 57.01 of the Rules of Civil Procedure provide guidelines with respect to costs awards issued in favour of the successful party. This was a straightforward matter where there was little factual dispute. I also take into account the plaintiff’s expectation of costs in the event that she was unsuccessful.

[42] Fixing costs is a matter of discretion for a trial judge under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I am cognisant of the fact that Rule 57.01 of the Rules sets out a series of factors in exercising that discretion at the conclusion of proceedings. I am also aware of the overarching general principle that costs should be fixed in an amount that is both fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[43] With these guiding principles in mind, costs shall be fixed in the amount of $15,000 all-inclusive and are to be paid forthwith by the plaintiff.

S.A.Q. Akhtar J. Released: 20 April 2016