Court File and Parties

Court File No.: CV-13-4362-0000 & CV-13-4008-0000 Date: 2017 04 12

Ontario Superior Court of Justice

B E T W E E N:

PATRICIA DIRLIC SANCLEMENTE, Plaintiff Barjinder Kalsi & Amelio Thé, Counsel for the Plaintiff

- and -

MARCELLA IRWIN and DAVID IRWIN, Defendants Alexander B. Wilkinson, Counsel for the Defendants

Endorsement

Barnes, J.

Introduction

1The Plaintiff (Ms. Sanclemente) brings this action against the Irwins in a personal injury action arising from a motor vehicle collision. Ms. Sanclemente commenced two statements of claim on different dates for the same action. Ms. Sanclemente commenced an initial action in September 2013 (the September action) and a second action in October, 2013 (the October action). The Irwins bring a summary judgment motion seeking to dismiss the action on the basis that the circumstances of the two actions are such that the October action is statute barred under the Limitations Act, 2002, S.O. 2002, c. 24 (Limitations Act).

2The Plaintiff (Ms. Sanclemente) resists the motion and brings a cross motion seeking leave to amend her statement of claim to plead discoverability under sections 4 and 5 of the Limitations Act within the context of the provisions of Section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8 (Insurance Act).

3The fact that Ms. Sanclemente commenced two actions does not lead to the conclusion that the October action is statute barred. The actions do not create a multiplicity of proceedings. The discoverability of Ms. Sanclemente’s threshold injuries as it relates to her compliance with the Limitations Act is a genuine issue for trial.

4I dismiss the Irwins’ motion for summary judgment and grant Ms. Sanclemente’s motion to amend her statement of claim to plead discoverability.

Background Facts

5On September 26, 2011, Ms. Sanclemente was travelling in a motor vehicle in the City of Toronto. A vehicle driven by Marcella Irwin struck Ms. Sanclemente’s vehicle. After the accident, Ms. Sanclemente and Marcella Irwin exchanged their names, phone numbers, license plate and insurance policy numbers.

6Ms. Sanclemente’s family doctor referred her to Progressive Rehab for treatment. On September 29, 2011, Dr. Rujeedewa examined and assessed Ms. Sanclemente. The prognosis was that she would likely recover from her injuries in 9 – 12 weeks. After 9 – 12 weeks, Ms. Sanclemente’s injuries persisted.

7On September 12, 2013, Ms. Sanclemente commenced an action arising out of this motor vehicle accident. In the September action, Ms. Sanclemente named the co-defendants as John Doe and The Personal Insurance Company.

8On May 5, 2014, Dr. Tajedin Getahun conducted an orthopedic examination of Ms. Sanclemente. Dr. Getahun’s prognosis was that the pain in her cervical spine was chronic and would continue for an indefinite period of time.

9On October 2, 2013, Ms. Sanclemente commenced another action, based on the same accident, against the co-defendants. This time the co-defendants were named as Marcella Irwin and David Irwin (instead of John Doe) and The Personal Insurance Company as co-defendants. The Irwins seek summary judgment for the October action.

10The September action was issued. The September action was not served. The Irwins did not receive a copy of the September action. The Irwins did not file a statement of defense in response to the September action. The pleadings for the September action never closed.

11Ms. Sanclemente served the statement of claim for the October action on the Irwins. The Irwins filed a statement of defense in response to the October action. The pleadings for the October action closed.

Issues

12This motion raises these issues:

1. Should the Irwins be granted leave to bring the motion for summary judgment?
2. Should summary judgment be granted dismissing the October action on the grounds that it is barred by statute?

Should the Irwins be granted leave to bring the motion for summary judgment?

13This matter has been set down for trial. The Irwins require leave under rule 48.04 to bring this motion. The Irwins are granted leave to bring this motion.

Law

14A defendant is not required to bring a summary judgment motion at the earliest opportunity or to demonstrate that there has been a substantial change in circumstances. Leave should be granted where the summary judgment motion could completely resolve the matter, thus saving the time and expense of the trial: Fruitland Juices Inc. v Custom Farm Service Inc. et al., 2012 ONSC 4902 at para. 28.

Position of the Parties

15The Irwins submit that if this summary judgment motion is granted It will dispose of this action on a final basis. This will save the time and expense of a trial, therefore, leave should be granted.

16The Irwins submit the October action was commenced in order to circumvent an application for leave to amend the September action by substituting the name John Doe with Marcella and David Irwin. Ms. Sanclemente sought to avoid seeking an amendment of the September action because she could not meet the criteria for a successful application for leave to amend under Rule 26.

17The argument advanced is that even though Ms. Sanclemente knew the true identities of the co-defendants (the Irwins) she identified them as John Doe in the September action. Therefore, Ms. Sanclemente could not argue that she exercised due diligence in ascertaining the true identity of the co-defendants and she knew she would not be successful in her application for leave to amend.

18The Irwins submit that Ms. Sanclemente’s decision to commence the October action in lieu of amending the September action make the facts on this motion suitable for summary judgment.

19Ms. Sanclemente submits that the September motion has no chance of success. Ms. Sanclemente explains that the limitation period does not run from the date of the accident. It runs from the date the plaintiff discovers that she has sustained a threshold injury under the Insurance Act: See Huang v Mai, 2014 ONSC 1156 at para. 38-45.

20Therefore, the Irwins’ argument that the October action is statute barred has no chance of success. In addition, even if the motion was successful, the appropriate remedy, in the interest of justice, is for the Court to grant Ms. Sanclemente leave to amend her original pleading to plead discoverability: See Collins v Cortez, 2014 ONCA 685, at para. 10 – 12.

Discussion/Analysis

21Ms. Sanclemente commenced two actions arising from the same incident. In effect, she instituted the same claim twice. The September action was commenced on September 12, 2013. This action had a court file number of CV-13–4008–0000. The second action was commenced in October 2013. This is the October action with court file number CV–13– 4362–0000.

22The Irwins’ motion is not based on the principle of discoverability in relation to threshold injuries under the Insurance Act. This motion is based on the premise that Ms. Sanclemente commenced the October action in order to circumvent the need to seek an amendment of the September action under Rule 26 of the Rules.

23The accident occurred on September 26, 2011. The two-year presumptive limitation period under the Limitations Act expired on September 26, 2013. The October action was commenced on October 2, 2013, outside the presumptive limitation period.

24It is difficult to understand how the Irwins can advance an argument that the October action is statute barred without reference to the principle of discoverability, however, if Ms. Sanclemente commenced the October action for an improper purpose and in a manner that impacts the limitation period for the October action, she exposes herself to a remedy that could dispose of the October action on a final basis. This will save the time and expense associated with a trial: Fruitland at para. 28.

Should summary judgment be granted dismissing the October action on the grounds that it is barred by statute?

25The pleadings for the September action never closed. Ms. Sanclemente’s October action does not create a multiplicity of proceedings. It does not raise an issue for consideration in a summary judgment motion. The issue of discoverability remains as a genuine issue for trial. Summary judgment shall not be granted in this case.

Law

26Rule 20.04(2) sets out the test for summary judgment. Summary judgment is granted where there is no genuine issue requiring a trial: Rule 20.04(2)(a), or where the parties consent and the court deems it appropriate to resolve an issue via summary judgment: Rule 20.04(2)(b).

27Rule 20.04(2.1) permits the court to weigh the evidence; evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

28The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R 87 describes the approach:

1. The Court examines the existing record to determine if there is a genuine issue requiring a trial;
2. If there is a genuine issue requiring a trial, the Court should consider whether it is appropriate to use the additional powers under Rule 20.04(2.1), unless it is in the interest of justice for these powers to be exercised only at trial. See Hryniak, at para. 66.

29Section 267.5(5) of the Insurance Act creates a “statutory threshold” which relieves the person who caused the injuries in the motor accident from liability for non-pecuniary loses or damages arising from the motor vehicle accident unless the person injured sustains a “permanent serious impairment of an important, physical, mental or psychological function”.

30Under section 5 of the Limitations Act, a claim for damages arising from a motor vehicle accident that is subject to the statutory threshold, is only discoverable after there is sufficient medical evidence demonstrating that the plaintiff has sustained an injury that will meet the statutory threshold established under the Insurance Act.: See Zhu v Matadar, 2015 ONSC 178, at para. 21-22.

31The limitation period in a motor vehicle accident begins to run when the plaintiff has knowledge that his or her injuries could be considered “permanent and serious”. The limitation period does not begin to run until the plaintiff has an objective appreciation that his or her injuries are permanent and serious: Collins v Cortez, 2014 ONCA 11, 2014 ONCA, para. 11; Huang and Mai, 2014 ONSC 1156, at para. 38; Everding v Skrijel, 2010 ONCA 437.

Position of the Parties

32The Irwins submit the September action was commenced on September 12, 2013. This was within the limitation period set out in the Limitations Act. In the statement of claim for this action, Ms. Sanclemente pleaded that she had sustained an injury that met the statutory threshold under the Insurance Act.

33Ms. Sanclemente also named the co-defendants as John Doe and The Personal Insurance Company. She did this even though she had information that the name of the driver was Marcella Irwin.

34The Irwins submit that instead of seeking leave to amend the statement of claim to correct the name of the defendant, John Doe, and to correct any deficiencies in the pleadings after the May 4, 2014 diagnosis, Ms. Sanclemente decided to commence the October action.

35According to the Irwins, the October action creates a multiplicity of proceedings. Ms. Sanclemente’s conduct does not rise to the level of an abuse of process, however, in the context of the September action creates a circumstance such that it is plain and obvious that the action is statute barred and there is not a genuine issue for trial.

36The Irwins submit that Ms. Sanclemente cannot plead in the September action that her injuries met the statutory threshold under the Insurance Act then rely on a subsequent medical diagnosis which confirms this position to argue that the October action is not statute barred.

37According to the Irwins, the October action is an effort by Ms. Sanclemente to circumvent seeking an amendment under Rule 26 because she will be unable to satisfy the legal criteria for amending the pleading. This court is asked to grant summary judgment and dismiss the October action.

38Ms. Sanclemente argues that the pleadings for the September action never closed. The statement of claim was never served on the Irwins. The Irwins never filed a statement of defence in response to the September statement of claim. The October action was commenced to correct deficiencies in the September action. There are no multiple proceedings in this case.

39Ms. Sanclemente submits that under section 5 of the Limitations Act a claim for damages arising from a motor vehicle accident, subject to the statutory threshold, is not discoverable until there is sufficient medical evidence that would demonstrate that Ms. Sanclemente had sustained an injury that will meet the statutory threshold under the Insurance Act.

Discussion/Analysis

40The Irwin’s motion is dismissed. The September action is irrelevant to an assessment of whether the October action complies with the requirements of the Limitations Act.

41The limitation period did not begin to run until Ms. Sanclemente discovered that she had sustained threshold injuries: See Huang, para. 38 and section 4 and 5 of the Limitations Act. This occurred on May 5, 2014, when she received the prognosis from Dr. Getahun.

42I fail to see the relevance of the September action in this analysis. Those pleadings never closed. There are no multiplicity of proceedings in this case. The Irwins concede that even if the September action was commenced to circumvent Rule 26, the conduct of Ms. Sanclemente does not rise to that of an abuse of process.

43Even if the conduct constituted an abuse of process the appropriate remedy will be determined in accordance with the circumstances of the case: Abarca v Vargas, 2015 ONCA 100 at para. 29. On these facts, it will not warrant a remedy that in effect ends the October action. The Irwins have failed to demonstrate that commencing the October action created a circumstance in which the October action will be statue barred.

44The issue of discoverability remains a genuine issue for trial. It is not in the interest of justice for the additional powers under Rule 20.04(2.1) to be utilized. In fact, under these circumstances it will constitute irresponsible use of judicial resources.

45The Irwins’ motion for summary judgment is dismissed. Ms. Sanclemente is granted leave to amend the October action to plead discoverability.

46The parties may contact the trial coordinator for a pretrial date before Justice Barnes or any other Judge of the Superior Court of Justice, whichever date is earlier.

47If the parties are unable to agree on costs, a two page cost outline shall be filed within 15 days.

Barnes, J.

Released: April 12, 2017

Schedule A

Courts of Justice Act

R.R.O. 1990, REGULATION 194

RULES OF CIVIL PROCEDURE

Rule 48.04

CONSEQUENCES OF SETTING DOWN OR CONSENT

48.04 (1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. O. Reg. 436/10, s. 1 (1).

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery; (b) relieve a party from any obligation imposed by, (0.i) rule 29.1.03 (requirement for discovery plan), (i) rule 30.07 (disclosure of documents or errors subsequently discovered), (ii) rule 30.09 (abandonment of claim of privilege), (iii) rule 31.07 (failure to answer on discovery), (iv) rule 31.09 (disclosure of information subsequently obtained), (v) rule 51.03 (duty to respond to request to admit), (vi) rule 53.03 (service of report of expert witness); or (vii) Revoked: O. Reg. 131/04, s. 13. (c) preclude a party from resorting to rule 51.02 (request to admit facts or documents). R.R.O. 1990, Reg. 194, r. 48.04 (2); O. Reg. 131/04, s. 13; O. Reg. 260/05, s. 10; O. Reg. 438/08, s. 43.

(3) Leave of the court is not required for a motion to compel compliance with any obligation imposed by a rule listed in clause (2)(b). O. Reg. 436/10, s. 1 (2).

Schedule B

Courts of Justice Act

R.R.O. 1990, REGULATION 194

RULES OF CIVIL PROCEDURE

RULE 26 AMENDMENT OF PLEADINGS

GENERAL POWER OF COURT

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.

WHEN AMENDMENTS MAY BE MADE

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action; (b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or (c) with leave of the court. R.R.O. 1990, Reg. 194, r. 26.02.

HOW AMENDMENTS MADE

26.03 (1) An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended, bearing the date of the original pleading and the title of the pleading preceded by the word “amended”. R.R.O. 1990, Reg. 194, r. 26.03 (1).

(2) An amendment to a pleading shall be underlined so as to distinguish the amended wording from the original, and the registrar shall note on the amended pleading the date on which, and the authority by which, the amendment was made. R.R.O. 1990, Reg. 194, r. 26.03 (2).

(3) Where a pleading has been amended more than once each subsequent amendment shall be underlined with an additional line for each occasion. R.R.O. 1990, Reg. 194, r. 26.03 (3).

SERVICE OF AMENDED PLEADING

Service on Every Party to Action and Related Actions

26.04 (1) An amended pleading shall be served forthwith on every person who is, at the time of service, a party to the main action or to a counterclaim, crossclaim or third party claim in the main action, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 26.04 (1).

(2) Proof of service of an amended pleading other than an originating process shall be filed forthwith after it is served. R.R.O. 1990, Reg. 194, r. 26.04 (2).

Amended Originating Process

(3) Where an amended pleading is an originating process,

(a) it need not be served personally on a party who was served with the original pleading and responded to it; and (b) it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite party who has not responded to the original pleading, whether or not the party has been noted in default. R.R.O. 1990, Reg. 194, r. 26.04 (3).

Schedule C

Courts of Justice Act

R.R.O. 1990, REGULATION 194

RULES OF CIVIL PROCEDURE

RULE 20 SUMMARY JUDGMENT

WHERE AVAILABLE

To Plaintiff

20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1).

(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just. R.R.O. 1990, Reg. 194, r. 20.01 (2).

To Defendant

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).

Evidence on Motion

20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12.

(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. O. Reg. 438/08, s. 12.

FACTUMS REQUIRED

20.03 (1) On a motion for summary judgment, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 14.

(2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s. 4.

(3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394/09, s. 4.

(4) Revoked: O. Reg. 394/09, s. 4.

DISPOSITION OF MOTION

General

20.04 (1) Revoked: O. Reg. 438/08, s. 13 (1).

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

Powers

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

Only Genuine Issue Is Amount

(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount. R.R.O. 1990, Reg. 194, r. 20.04 (3); O. Reg. 438/08, s. 13 (4).

Only Genuine Issue Is Question Of Law

(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge. R.R.O. 1990, Reg. 194, r. 20.04 (4); O. Reg. 438/08, s. 13 (4).

Schedule D

Insurance Act

R.S.O. 1990, CHAPTER I.8

Section 267.5 (5)

Protection from liability

Income loss and loss of earning capacity

Non-pecuniary loss

267.5 (5) Despite any other Act and subject to subsections (6) and (6.1), 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. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).

Schedule E

Limitations Act, 2002

S.O. 2002, chapter 24

Sections 4 and 5

Basic Limitation Period

Basic limitation period

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. 2002, c. 24, Sched. B, s. 4.

Discovery

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). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).

Demand obligations

(3) For the purposes of subclause (1)(a)(i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made. 2008, c. 19, Sched. L, s. 1.

Same

(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004. 2008, c. 19, Sched. L, s. 1.