Court File and Parties

COURT FILE NO.: CV-11-440956 DATE: 20160603 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anneliese Schaefer, Plaintiff / Responding Party AND: Asnakch Ayeneababa, Defendant / Moving Party

BEFORE: Justice Edward P. Belobaba

COUNSEL: Hershel J. Sahian and Alexander B. Wilkinson for the Moving Party William G. Scott for the Responding Party

HEARD: June 1, 2016

Motion for Summary Judgment

[1] The plaintiff was rear-ended on June 24, 2009 on Highway 427 by a vehicle owned by the defendant and driven by his brother. She sustained significant, mainly soft-tissue injuries and was hospitalized. The plaintiff retained legal counsel in August, 2010 and her lawyer commenced this action on December 2, 2011.

[2] The defendant moves for summary judgment dismissing the action on the ground that it was commenced more than two years after the motor vehicle accident and is thus time-barred under ss. 4 and 5 of the Limitations Act, 2002. The defendant says that the plaintiff’s lawyer, by words and actions, made clear to the insurer that the plaintiff’s injuries were permanent and that the limitation period would expire two years after the accident, that is on June 24, 2011. The action, commenced on December 2, 2011, is thus out of time.

[3] I do not agree. For the reasons that follow, the defendant’s motion for summary judgment is dismissed.

Analysis

[4] Both sides agree, as do I, that the limitations issue that is before me can be summarily adjudicated. Both sides also agree with the proposition set out in Ioannidis v. Hawkings - that in claims of permanent injury and impairment under s. 267.5(5) of the Insurance Act, the court should grant “a degree of latitude to the plaintiff before declaring that the limitation period has begun to run.” A limitation period should not begin to run with regard to a serious and permanent impairment claim:

… until 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 a balance of probabilities that the injury qualifies [as a serious permanent impairment].When such a body of material has been accumulated then and only then should the limitation begin to run.

[5] What is the “body of material” that is before the court on this motion?

[6] The plaintiff, relying on the Court of Appeal’s recent decision in Fennell v. Deol, 2016 ONCA 249, says the focus should be on the time period from the date of the accident to two years before the commencement of the action - that is from June 24, 2009 to December 2, 2009. During this six-month time period, she reasonably believed that she was on the mend and did not know and could not have known so soon after the accident that the injuries and impairments were permanent.

[7] The plaintiff’s uncontroverted evidence (supported by the pertinent medical documentation) is that she “always understood that with time and proper treatment my injuries would resolve and I would be able to return to my pre-accident activities.” As she put it in her affidavit:

At no time was I told that my injuries and impairments were permanent and would not get better with time and treatment. By August 20, 2010 [just over a year after the accident] I continued to have pain and impairments and therefore retained [my lawyer] … to represent me with respect to the injuries I had sustained in the motor vehicle accident. I relied on [my lawyer] to take whatever steps were necessary to proceed with my claims …

[8] The plaintiff did not know and could not have known on the date of the accident that her soft-tissue injuries were permanent. She has thus successfully rebutted the presumption in s. 5(2) of the Limitations Act, 2002.

[9] On the record before me, the earliest that she would have known that she was not getting better with time and treatment and that her injuries and impairments were or could be permanent was in August, 2010 when she retained legal counsel “to take whatever steps were necessary to proceed with my claims.” The action was commenced just over one year later and is therefore not time-barred.

[10] The lawyer retained by the plaintiff swore in his affidavit that he “formed the opinion that the plaintiff had sustained an injury that met the requirements of s. 267.5(5) of the Insurance Act” upon receipt and review of Dr. Sequeira’s medical opinion dated November 20, 2011. The lawyer commenced the action less than a month later. Again, no limitations issue.

[11] The defendant, however, points to a letter dated May 24, 2011 from the plaintiff’s lawyer to the insurer. The lawyer advises the insurer that as a result of the accident, the plaintiff suffered injuries to her neck, shoulders, back and hips and that the physical and psychological symptoms from these injuries (such as dizziness, headaches and acute depression) “are continuing up to the present.” The lawyer also notes that the limitation date is “fast approaching” and attaches a draft statement of claim. The draft statement of claim specifically pleads “permanent and serious impairments.” The lawyer then tries to file the claim by mail but the mailed-in claim is rejected by the court. The action is properly commenced on December 2, 2011.

[12] The defendant says that by these words and actions the plaintiff’s lawyer in essence acknowledged that his client’s injuries were indeed permanent and that he only had until June 24, 2011 (two years after the accident) to commence the action.

[13] I do not agree. The fact that the plaintiff’s injuries were described as “continuing” is not, in and of itself, an acknowledgement of permanency. Nor is the fact that the lawyer attaches a draft statement of claim that pleads “permanent and serious impairments.” This claim is made in almost every motor vehicle accident that results in significant injury. And, in any event, pleadings are not evidence.

[14] The fact that the lawyer noted in his letter that the two-year limitation period is “fast approaching” says as much about his desire to file the claim within the presumptive two-year period just to be on the safe side, as it does about an admission that his client knew she sustained permanent soft-tissue injuries at the date of the accident – which is generally an impossibility and is here rebutted by the medical documentation that the lawyer reviewed.

[15] In his affidavit, the lawyer lists the various clinical and psychological reports that he had reviewed (none of which describe the impairments as permanent) and explains that when he sent the May 24, 2011 letter to the insurer, he “did not have the necessary medical reports and records to prove [that the impairments were permanent].” It was only after requesting a medical opinion from Dr. Sequeira on October 20, 2011 and receiving the doctor’s report a month later that he “formed the opinion that the plaintiff had sustained an injury that met the requirements of s. 267.5(5) of the Insurance Act.” The lawyer commenced the action less than a month later on December 2, 2011.

[16] Much was made of a medical opinion that appears to have been prepared by Dr. Sequeira on December 30, 2010 and that also concluded that the plaintiff’s impairments were permanent. The date on this document and its overall import remains a matter of dispute. But even if this report is what it appears to be, all that it means is that the action was still commenced in a timely fashion.

[17] There is no suggestion that the plaintiff knew or could have known within the six-month time frame leading up to December 2, 2009 (the date that is two years before the action was commenced) that her soft-tissue injuries would be permanent Thus, on whenever date the plaintiff or her lawyer actually discovered that the impairments were indeed permanent, (when the lawyer was retained, the December 30, 2010 medical report or the November 20, 2011 medical report) this date was after December 2, 2009, and thus the action as issued on December 2, 2011 is not time-barred.

Disposition

[18] The motion for summary judgment based on the limitations argument is dismissed.

[19] The plaintiff is entitled to her costs. Had the defendant prevailed, he would have asked for $16,000 on a partial indemnity basis. Therefore, the plaintiff’s request for $6500 is more than reasonable. Costs are fixed at $6500 all-inclusive payable forthwith by the defendant to the plaintiff.

Belobaba J. Date: June 3, 2016