COURT FILE NO.: CV-14-509813 DATE: 20160913 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amanda Lee McCready, Plaintiff/Moving Party AND: Simranjit Singh Jaswall and Her Majesty the Queen in Right of Ontario (also known as OPP), Defendants/Responding Parties
BEFORE: S.F. Dunphy, J.
COUNSEL: A. Honner, for the Plaintiff/Moving Party B. Hutchison, for the Defendants/Responding Parties
HEARD: September 12, 2016
Endorsement
[1] The plaintiff in this personal injury claim has brought this motion seeking partial summary judgment only – she seeks to defeat the defendants’ pleaded defence under the Limitations Act, 2002, S. O. 2002, c. 24 on the basis that she did not discover and could not reasonably have discovered that her injuries were “threshold” injuries until almost three years after the motor vehicle accident she claims caused those injuries and that she started her claim less than a year after that discovery.
[2] For the reasons that follow, I am dismissing this motion. The Limitations Act defence pleaded raises genuine issues for trial and it is not in the interests of justice to use the enhanced fact-finding powers contained in Rule 20.04(2.1) of the Rules of Civil Procedure where all or substantially all of the factual issues that would have to be weighed and assessed will be the subject of more detailed examination at trial in any event. Summary judgment ought not to be granted unless the findings of fact necessary to apply the law are thereby to be determined definitively. To do otherwise would run the risk of inconsistent findings of fact being made in the same action. As well, the cross-examination of the plaintiff was subject to interruptions of a nature and frequency as to have substantially deprived me of any capacity to make findings of weight or credibility with any confidence.
Background facts
[3] The plaintiff was in a serious motor vehicle accident on March 26, 2011. Although badly shaken, she appeared to suffer only relatively minor injuries, was released from hospital the same day and missed only a few days of work afterwards.
[4] The plaintiff reports that she was generally able to discharge her duties as a dietary aid involved in food preparation, food service and clean-up following the accident. She ceased physiotherapy in August 2011. She was able to work, socialize and raise her young daughter thereafter, although her affidavit reports “occasional neck, should and back pain” after ceasing therapy.
[5] These statements in her affidavit are in marked contrast to the admission made in her response to a request to admit that her impairment “substantially interfered with her ability” to work or carry out most of her activities of daily living during the period ending on August 6, 2012 (the second anniversary prior to the issuance of the first statement of claim herein).
[6] The plaintiff made an accident benefits insurance claim the details of which have not yet been produced by the plaintiff. Her affidavit mentions that “my medical concerns during the period following my accident were not primarily about my accident related injuries”, in support of which statement she attached her treating family physician’s clinical notes for the relevant time frame. None of the clinical files produced evidence any complaints made by the plaintiff that were identified (at that time at least) as being related to the motor vehicle accident in 2012.
[7] While the plaintiff had been counselled by her doctor shortly after the accident to avoid heavy lifting, bending forward or prolonged sitting, by August 2012, the same doctor certified that the plaintiff was had the capacity to be able to lift, carry and shift weights of up to 25 kg and had the capacity in terms of mobility to for “limbs/back bending, crouching, kneeling, balancing, sitting, standing (possibly for long periods), climbing stairs (leg and knee flexibility), pushing and pulling, reaching, hand/arm and shoulder dexterity”. The certification was given to the plaintiff in connection with her application for admission into a Personal Support Worker training program, a career change that she decided she wished to make at that time.
[8] The plaintiff completed her training as a PSW in May 2013 and began work soon thereafter on a part-time and then full-time basis. Her affidavit states that her “life changed definitively” during the December 2013 holidays when, while bending in the shower she found herself unable to get up again due to severe back pain that has never fully resolved since.
[9] There is some conflict in the evidence on this point. Dr. Chow’s report described the plaintiff’s symptoms of chronic joint pain to have “onset in July 2014, in the absence of injury or trauma”. A catastrophic impairment review prepared for the plaintiff’s counsel in February 2016 suggests that the plaintiff “re-injured her back at work in December 2013 and stopped working at that time”. The medical evidence is neither fully consistent nor complete as the plaintiff has yet to produce the medical evidence required by O. Reg. 461/96 to establish that her impairment was caused by a motor vehicle – a point of some considerable relevance in this case given the passage of a considerable period of time with apparently few if any accident-related symptoms and the occurrence of two slip and fall incidents (in 2012 and 2013) that did produce medical consequences noted in her files that are at least somewhat consistent with those now complained of.
[10] This claim was commenced on November 11, 2014 [^1]. The defendants have pleaded, among other defences, that the claim is barred pursuant to the Limitations Act. This motion has been brought seeking to strike that defence alone while leaving the remaining defences (including causation and the application of the threshold) for trial.
Issues to be determined
[11] There is no question that the plaintiff knew that she had been involved in a motor vehicle accident on March 26, 2011, that she was of the view that the accident had been caused by the negligence of the defendants and that she had sustained some injuries as a result of the accident. The issue is when she knew or a person with her abilities and in her circumstances ought to have known, that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it: Limitations Act, s. 5(1)(a)(iv) and s. 5(1)(b).
[12] The wrinkle in this case is that s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8 provides that the defendants “are not liable in an action in Ontario for damages for non-pecuniary loss…unless as a result of the use or operation of the automobile the person has …sustained …(b) permanent serious impairment of an important physical, mental or psychological function”.
[13] Rule 20.04(2)(a) of the Rules of Civil Procedure requires the court to grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. Rule 20.04(2.1) permits the judge hearing the motion to consider the evidence submitted by the parties and, “unless it is in the interest of justice for such powers to be exercised only at trial”, to weigh evidence, evaluate credibility or draw inferences from the evidence. These three powers to evaluate evidence are sometimes referred to as the “toolbox” of Rule 20.04(2.1) of the Rules of Civil Procedure.
[14] Pulling the language of the Limitations Act and the Insurance Act together in the context of Rule 20.04(2) and (2.1) of the Rules of Civil Procedure, the issue to be resolved on this motion is thus whether the plaintiff met the burden of establishing there are no genuine issues for trial on the issue of the discoverability of her claim to have suffered a “permanent serious impairment of an important physical, mental or psychological function” arising from the motor vehicle accident prior to November 11, 2012 (being two years prior to the commencement of this action)?
[15] In posing the question in this fashion, I have pointedly declined to adopt the suggestion of the plaintiff that the burden upon his client was to show whether she knew or ought to have known that she had a “substantial chance of obtaining a judgment” more than two years prior to the issuance of the statement of claim. The difference may appear to be a matter of mere semantics, but the distinction to be drawn is between having acquired sufficient evidence to prove facts to the satisfaction of a judge or jury versus having knowledge of the facts themselves. In the present case, the Insurance Act denies a claim unless there has been a “permanent serious impairment of an important…function” arising from a motor vehicle – it is knowledge of the existence of this fact and not an appreciation of the odds of prevailing in court in establishing the fact that is the object of the inquiry.
Analysis and discussion
[16] It is worth recalling the careful analysis of Rule 20.04(2) and (2.1) of the Rules of Civil Procedure undertaken by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7. The analysis proceeds in three steps – firstly I must consider whether the evidence as presented by the parties raises a genuine issue for trial in relation to the claim for which judgment is sought. If it does, I must then determine whether the interest of justice requires that the “tool box” of Rule 20.04(2.1) of the Rules of Civil Procedure should only be exercised at a trial. If and only if I conclude that I may appropriately have resort to the “toolbox”, I may then weigh evidence, evaluate credibility of a deponent or draw reasonable inferences from the evidence to resolve those triable issues. If they cannot be resolved even with the enhanced fact-finding powers, other tools may be appropriate (eg. ordering a trial of an issue).
(a) Have the defendants raised a genuine issue for trial that cannot be resolved without resort to the “toolbox”?
[17] Pursuant to s. 5(2) of the Limitations Act, the plaintiff is presumed to know of her claim “on the day the act or omission on which the claim is based took place, unless the contrary is proved”. The fact that the plaintiff launched this claim more than two years after the date that the motor vehicle accident occurred – being the act upon which the claim against the defendants is based – creates a presumption in favour of the defendants that the claim is in fact barred. The onus is upon the plaintiff to show that she neither knew of the existence of a claim nor ought a reasonable person with her abilities and in her circumstances to have known of the existence of a claim more than two years prior to the date of its issuance.
[18] The plaintiff’s affidavit states “as the evidence will show, I did not discover that I had “threshold injuries” until December 2013. Although the language is curiously indirect, I have read that statement to include a direct assertion by her that she did not in fact discover that she had threshold injuries until December 2013.
[19] The medical evidence contained in the plaintiff’s motion materials contains evidence of complaints by the plaintiff of back and other pain issues, evidence of recurring psychological issues and very confusing and as yet unclarified evidence regarding causation.
[20] The plaintiff’s use of the phrase “threshold injuries” in her affidavit of course suggests that the plaintiff at some point had the concept of s. 267.5(5) of the Insurance Act explained to her. That threshold incorporates not only the concept of “permanent serious impairment” but also the requirement that such impairment was sustained “as a result of the use or operation of the automobile”.
[21] The defendants take the position that the plaintiff has yet to provide the medical evidence required by O. Reg. 461/96 to establish that the alleged impairment was sustained as the result of the use or operation of an automobile. As such, they claim that the evidentiary record the plaintiff is required to tender in support of her “threshold claim” is still incomplete and it is thus impossible to assess when she knew or ought to have known of her threshold claim without knowing what the medical evidence is to suggest that she in fact has one. It is, they submit, simply pre-mature to attempt to make findings about discoverability of evidence the plaintiff is required by regulation to submit but has yet to do so.
[22] This submission has merit. If the plaintiff has the burden of proving what she or a person in her position knew or ought to have known in relation to a threshold claim, she must first disclose the evidence by which she intends to establish she has one. Without that information, the defendants cannot usefully probe that evidence in its proper context to understand what she knew or what a reasonable person in her position ought to have known in relation to it.
[23] In considering whether the plaintiff has met her burden of proof, I would also need to resolve the apparent conflict between the plaintiff’s own medical evidence that suggests that there was no material impairment of the plaintiff’s ability to work or carry out most of her activities of daily living in 2011 and 2012 when contrasted to her admission in response to a request to admit that “she sustained an impairment that substantially interfered” with her ability to work or carry out her daily activities during that same time frame.
[24] In my view it is impossible for me to draw any reliable conclusions regarding whether the plaintiff has discharged her burden of proof without (a) evaluating the plaintiff’s credibility; (b) weighing the medical evidence submitted in comparison to her own; and (c) making inferences from the facts. These fact-finding functions normally are to be exercised by the trial judge unless I am authorized by Rule 20.04(2.1) to undertake them in the context of this motion for summary judgment. Without resort to these enhanced tools, I can only conclude that the defendants have raised genuine issues for trial.
[25] I therefore find myself compelled to examine whether the interest of justice requires a trial to have resort to these tools or whether I may do so now.
(b) Does the interest of justice require the fact-finding powers be used at trial in this case?
[26] In Hryniak, Karakatsanis J. described the “interest of justice” analysis in a similar context to this one (i.e. partial summary judgment) as follows (at para. 60):
“The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.”
[27] In my view, this motion fails both aspects of the “interest of justice” test identified by Karakatsanis J.: my task on this motion is significantly duplicative of the tasks that the trial judge will have to undertake in any event and my doing so at this preliminary stage runs a significant risk of seeing inconsistent findings of fact emerge.
[28] The plaintiff’s alleges that she did not know and could not reasonably have known that she had a “threshold” claim. Under s. 267.5 of the Insurance Act and O. Reg 461/96 proof of a threshold claim requires proof of, among other things, an impairment that substantially interferes with the person’s ability to continue her usual employment or usual activities of daily living and that it is “permanent” in the sense of being both “continuous since the incident” and “expected not to substantially improve” based on medical evidence. Her allegation therefore amounts to asserting that she neither knew nor could reasonably have known of any of these matters. As noted, the medical evidence she is required to produce has not yet been produced and it is thus impossible to do more than speculate as to whether she knew or ought to have known of the matters not yet revealed.
[29] At a minimum, the plaintiff will have to go over the very same ground with her medical evidence at trial as she has done for this motion. The reviews of the evidence now and at trial may well be for slightly different purposes and the plaintiff may supplement the existing medical evidence with additional evidence, but the duplication of effort is undeniable and significant.
[30] Not only is there duplication, but there is self-evidently a risk of inconsistent findings arising any time a trial judge is required to assess the same evidence that the motions judge hearing a partial-summary judgment motion has already had to assess. That risk is especially acute in this case.
[31] In argument, the plaintiff’s counsel suggested that all elements of the threshold claim were in fact present at all material times with the exception of the plaintiff’s knowledge of the impairment being “permanent”. However, the definition of “permanent” in the regulation includes both the element of “continuous” impairment as well as the assessment of medical evidence as to its likely continuation without improvement.
[32] The plaintiff cannot cherry pick the facts she wants to prove with motions for summary judgment. Findings can only be made when they can be confidently made for all purposes of the litigation at hand. I can’t start down the road with my hands tied as to what findings necessary to my conclusions I can or cannot make.
[33] A simple example illustrates the risk in this case. There is little to no evidence that I would characterize as reliable in the record at present to permit a conclusion that the plaintiff suffered from any symptoms arising from the automobile accident that interfered in any material way with her work or daily functions at any time in 2012. Were I to open the Rule 20.04(2.1) toolbox and determine that the plaintiff could not have discovered her claim because she was substantially or completely asymptomatic for some or all of the time following the accident, such a finding would be binding for all purposes, and not merely for the purposes of a motion for summary judgment. The plaintiff could not introduce evidence at trial that she in fact was suffering from those symptoms continuously and then seek to be shielded from examination as to what conclusions she drew or a reasonable person in her situation ought to have drawn from that evidence.
[34] While the plaintiff is quick to remind me that I am not charged with making the threshold finding, the risk is clearly present that my conclusions on the evidence could either tie the trial judge’s hands or result in inconsistent findings. Neither outcome is in the interest of justice.
[35] The plaintiff cannot have her litigation cake and eat it too. If I am to be invited to wade through the same medical evidence as the trial judge will be required to do for purposes of the threshold motion, it can only be on terms that my findings based on that evidence will be final and binding for all purposes of the litigation. The plaintiff cannot hold fire on delivering the medical evidence she is required to deliver until she has first foreclosed any inquiries about discoverability that may arise from it.
[36] The exercise proposed by the plaintiff carries too great a risk of being duplicated at trial in any event and raises a very significant prospect of inconsistent findings of fact. I decline to go down that road for both reasons.
[37] A subsidiary reason that would leave me quite uncomfortable in attempting to reach final conclusions of fact on the record before me is the state of the record. The plaintiff has not fully assembled her medical evidence as I have noted. While she was cross-examined on her affidavit filed in support of the motion (and I have read the entire transcript), the cross-examination was leavened by very substantial and frequent interruptions of counsel. Such interruptions were of a nature and frequency as to leave me quite unable to conclude with any confidence that I can reach any fair conclusions of credibility or weight based upon the plaintiff’s testimony. For this additional reason, I should decline to open the toolbox.
Disposition
[38] I have therefore concluded that there is a genuine issue for trial raised by the Limitations Act defences pleaded by the defendants and that the interest of justice requires the enhanced fact finding exercise to be undertaken at trial in this case. The motion for partial summary judgment must be dismissed.
[39] Given this conclusion, I do not think this to be an appropriate case to seize myself or make further orders to direct a trial of an issue. The medical evidence has not yet been fully assembled and the trial judge is the right person to hear the threshold motion with a full rather than partial record.
[40] The defendants have been successful on this motion and are entitled to their costs. If the parties are unable to agree on the amount, I direct the defendants to provide the plaintiff with their outline of costs together with a brief memorandum of argument (maximum five pages) within three weeks of the release of these reasons. The plaintiff is to be given two weeks to reply (same size limitations – also excluding the outline of costs if provided by the plaintiff). Reply – if absolutely necessary within three days thereafter. Cases need not be provided if available on-line. The defendants should submit the submissions to my assistant electronically once fully assembled.
S.F. Dunphy J. Date: September 13, 2016