Court File and Parties
CITATION: Li v. Gun-Munro, 2016 ONSC 6890
COURT FILE NO.: CV-15-523990
DATE: 20161115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAODONG LI Plaintiff
– and –
CAROL GUN-MUNRO and WHEELS LEASING CANADA LTD. Defendants
COUNSEL:
Susan Sack, Counsel for the Plaintiff
Louise James, Counsel for the Defendants
HEARD: October 25, 2016
BEFORE: G. Dow J.
REASONS FOR JUDGMENT
[1] The defendants motion is for summary judgment on the basis the plaintiff’s action, issued March 16, 2015, is beyond the time permitted under section 5 of the Limitations Act R.S.O. [2002] c. 24. The plaintiff opposed the relief sought and seeks determination of this issue in its favour and in advance of any trial.
[2] The parties accepted the material before me fell within the parameters set out in Hyrniak v. Molden, [2014 SCC 7], 2014 S.C.C. 7 in that there is sufficient material to make the necessary findings of fact, to which the law could be applied and result in a fair and just determination in a proportionate, more expeditious and less expensive manner.
Background
[3] The plaintiff was injured in a motor vehicle accident with the defendant operator, Gun- Munro on March 26, 2012. At that time, the plaintiff was an apprentice mechanic, age 26, from China where his family still lived, with Mandarin as his first language and without OHIP coverage. He alleges soft tissue injuries, headaches and dizziness with a subsequent emotional reaction. More problematic, he began to develop blurred vision. After consulting with his mother, he returned to China for both physiotherapy and was examined on June 2, 2012 by an ophthalmologist. He understood from this specialist his right eye was drifting to the side and he needed to do the exercises which he was given to correct the problem. He was to follow up with the doctor in six months.
[4] However, in order to preserve his immigration status, he returned to Canada in September, 2012. While his vision remained a problem, it was functional to the point he returned to his work the following month as an apprentice mechanic working the same hours. As noted by the defendants from the plaintiff’s examination for discovery evidence, he did not seek treatment upon his return to Canada despite ongoing blurred vision, dizziness, neck and back pain.
[5] This continued to and beyond March 16, 2013.
Analysis
[6] The date of March 16, 2013 is relevant because it marks the moment two years before the statement of claim issues and forms the basis of the analysis as to whether, to quote section 5 (1)(b) of the Limitations Act, a “reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” that he or she had, to use the colloquial phrase for Ontario motor vehicle non pecuniary damage claims, a threshold piercing injury.
[7] I agree the analysis requires a review of section 267.5 (5) of the Insurance Act, R.S.O 1990, c. I.8 and sections 4.1 through 4.3 of Ontario Regulation 461/96, as amended which details what guides the court in determining if the nature and extent of the injury is a “permanent serious impairment of an important physical, psychological function”. I also agree with the position of the defendants that section 5(2) of the Limitation Act presumes the plaintiff knows of his or her claim on the day the event giving rise to it occurs. I agree the onus is on the plaintiff to show why the injury on a level that may meet the verbal threshold was not discoverable within the time outside the first two years following the incident. I also agree the plaintiff is required to act with due diligence to discover if he or she has a cause of action.
[8] The defendants largely relied on the plaintiffs’ failure to follow up with the ophthalmologist in six months as directed. The plaintiffs’ explanation for this failure was his need to return to Canada and difficulty in finding a physician with whom he could converse and understand in his first language, Mandarin and an inability to do so such that as he got worse in the summer of 2013 he had to stop working by July. In order to get medical attention, he returned to China in January, 2014. The eye specialist seen in China advised him he needed surgery to repair his right eye and recommended he return to Canada for it. He did so, and found a family physician, Dr. Dong, who speaks Mandarin and took him on as a patient. Dr. Dong referred him to an ophthalmologist, Dr. Iizuka, who saw him June 12, 2014.
[9] The expert report of Dr. Iizuka dated April 21, 2016 states “A head injury from a car accident may impair one’s ability to fuse temporarily or permanently. Usually, patients improve over the year after the head injury, and therefore, we cannot determine if the effects are permanent or longstanding until at least a year has passed.” This, in my view, is the definitive evidence which resolves this motion in favour of the plaintiff. Had the plaintiff been more diligent and had the plaintiff sought and obtained the evidence of a physician, or in this case an ophthalmologist, as required by the Ontario Regulation 461/96 and particularly section 4.3 on or before March 16, 2013 (or within the first year following the accident) an appropriate medical expert would not likely have described the eye injury as permanent as required by the verbal threshold.
[10] I am reinforced in this conclusion by consideration of section 4.2 of Ontario Regulation 461/96 that describes how the requisite impairment must substantially interfere with the person’s ability to continue with his or her regular employment which was not occurring here from September, 2012 until July, 2013. I am mindful of the comment by Justice Langdon in Ioannidis v. Hawkings, 1998 14822 (ON SC), [1998] O.J. No. 1421 repeated by Justice E.M. Morgan in Phung v. Mais, 2012 ONSC 7153 (at paragraph 14) that “if the plaintiff issues suit prematurely, he or she may be faced with an almost immediate motion to dismiss the claim”.
[11] The balance of the plaintiff’s medical treatment which leads to the issuance of the statement of claim March 16, 2015 occurs within the two years permitted for the action to proceed. As a result, I conclude the claim was issued within the two years permitted under the Limitations Act and this issue need not be addressed should the matter proceed to trial.
[12] The decision in Hyrniak v. Molden, supra, indicates (paragraphs 78 and 79) that I should address whether I become seized of the matter as part of accomplishing a proportionate and less expensive result. I have only decided a narrow issue that determines if the matter should proceed and have made no findings on liability or damages including whether the verbal threshold has been met. This action does not appear to require case management and there does not appear to be any judicial time to be saved or access to justice required. As a result, I decline to remain seized of this action.
Costs
[13] The plaintiff was successful and is entitled to costs subject to my comment below. The costs outline of the plaintiff was in the amount of $17,410.12 inclusive of fees, HST and disbursements on a partial indemnity basis. The defendants’ costs outline claimed $14,533.99 for fees, HST and disbursements on a partial indemnity basis. Counsel advised they were unable to proceed on two earlier occurrences due to difficulties originating with the court.
[14] The number of hours noted in the plaintiff’s costs outline is comparable to that detailed by defence counsel. The hourly rates claimed by plaintiff’s counsel are reasonable, particularly given what was at stake. However, given the defendants may succeed on the threshold issue should this matter proceed to trial, the plaintiff’s costs are fixed in the amount of $17,410.12 inclusive of fees, HST and disbursements and are payable by the defendants in the cause.
Mr. Justice G. Dow
Released: November 15, 2016
CITATION: Li v. Gun-Munro, 2016 ONSC 6890
COURT FILE NO.: CV-15-523990
DATE: 20161115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAODONG LI Plaintiff
– and –
CAROL GUN-MUNRO and WHEELS LEASING CANADA LTD. Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: November 15, 2016