Malyavina v. Akanda, 2017 ONSC 5458
CITATION: Malyavina v. Akanda, 2017 ONSC 5458
COURT FILE NO.: 16-69897
DATE: 2017/09/07
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rubaiyat Malyavina, Plaintiff
AND:
Petro Akanda, Defendant
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Miryam Gorelashvili and L. Craig Brown, for the Plaintiff, responding party
Joseph W. L. Griffiths, for the Defendant, moving party
HEARD: September 7, 2017
ENDORSEMENT
[1] The parties move for summary judgment on the question of the limitation period. This question arises because the motor vehicle accident in which the plaintiff was allegedly injured took place in December of 2012 but the action was not commenced until September of 2016.
[2] Pursuant to s. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the limitation period of two years begins to run from the date on which the “claim was discovered”. There is a presumption that the date of discovery is the date of the accident but in motor vehicle cases, because of the threshold (s. 266 of the Insurance Act) the provisions of s. 5 (1) (a) and (b) would not necessarily be satisfied until it was apparent, or should have been apparent by the exercise of reasonable diligence, that the injury was of a permanent nature that might reasonably be the basis for a viable tort action. See Yelda v. Vu, 2013 ONSC 4973 at paras 28-30, summarizing the law in this area.
[3] As Justice Perell noted in Farhat v. Monteanu, 2015 ONSC 2119, it is ironic that the threshold requirements built into the Insurance Act have also resulted in uncertainty concerning the expiry of limitation periods. As he stated in para 39, “the limitation period only begins to run when a sufficient body of information is available to determine whether the plaintiff has a claim that may meet the threshold.” I also agree with Justice Perell’s decision in Pereira v. Contardo, 2014 ONSC 6894 at para. 65, that there are not different limitation periods for pecuniary and non-pecuniary loss. The running of the limitation period in motor vehicle cases in Ontario does not begin to run until it