CITATION: Constance Moriarty v. Patrick Moriarty, 2017 ONSC 5933
COURT FILE NO.: CV-14-535-00
DATE: 2017/10/4
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CONSTANCE MORIARTY
Plaintiff
– and –
PATRICK MORIARTY
Defendant/Moving Party
Gavin Cosgrove, for the Plaintiff
R. Steven Baldwin, for the defendant
HEARD: September 22, 2017
REASONS FOR JUDGMENT
CHARBONNEAU, J.
[1] The defendant Patrick Moriarty brings a motion for summary judgment for an order dismissing the plaintiff’s claim on the ground that it was initiated beyond the two-year limitation period provided by the Limitations Act, 2002, SO 2002, c.24 (the “Act”).
The Background Facts
[2] The plaintiff Constance Moriarty was involved in an All-Terrain Vehicle accident on October 13th, 2012. The vehicle was driven by the defendant. She suffered a back injury, fractured ribs, and multiple broken front teeth. She underwent 2 back surgeries and had to undergo rehabilitation. She has never returned to her employment.
[3] The present action was stared on November 19th, 2014.
The Law
[4] On a motion for summary judgment, the judge will allow the motion if there is no genuine issue requiring a trial. If the trial judge finds that there exists a genuine issue requiring determination, he or she may consider whether using the court powers conferred by Rule 20, the judge is satisfied that he or she is able to make findings of fact and decide the issue in a just and reasonable way without the need for a full trial.
[5] Section 4 and 5 of the Act set out the general two-year limitation and the discoverability principle:
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.
(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).
- (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
[6] The parties disagree as to when the plaintiff’s claim was discoverable. The defendant submits that the claim was discoverable between October 12, 2012 and October ,2012 and certainly before she was discharged to rehabilitation on November 5th. 2012.
[7] On the other hand the plaintiff submits that her claim was not discoverable before well after November 12, 2012 when her counsel had received further medical reports and first was able to determine if the plaintiff had suffered “a permanent serious impairment of an important physical, mental or psychological function” (the threshold).
Analysis
[8] It is clear on the facts of this case that the plaintiff could not have reasonably known that her loss met the threshold requirement on the day of the accident. Section 5 (2) of the Act therefore has no application.
[9] Applying section 5 (1) of the Act, the issue is when did the plaintiff know or a reasonable person with her abilities and her circumstances ought to have known that the impairment from her injuries were permanent and serious.
[10] I find that the loss of the plaintiff was not discoverable on November 5th, 2012 when she was discharged from the Ottawa Hospital into rehabilitation. I find that given the medical information she had before November 20, 2012, a reasonable person in her circumstances would not have yet known her loss would be permanent. She underwent medical evaluations and treatment well beyond November 20, 2012. There was improvement of her condition in the months following her discharge from rehabilitation. It was impossible to know what would be the extent of her recovery at the time.
[11] I find that the claim was not discoverable before the reports of Dr. Karen Smith, Dr. B. Benoit, Dr. R. Chow and Sherry Nosher Tailler were available to the plaintiff’s counsel. This was only sometime in May or June 2013, well within the two-year limitation period.
[12] Deciding whether a loss meets the threshold is a complex matter. It will almost always be based on firm medical evidence that identifies the loss as such. I agree with Landon J. in Ioannidis et al. v. Hawkings 1998 CanLII 14822 (ON SC), 39 O.R. (3rd) 427 at p. 434:
“In practical terms, the question is not whether the plaintiff believes that her injury meets the criteria but whether 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 the balance of probabilities, that the injury qualifies. When such a body of material has been accumulated, then and only then should the limitation begin to run. This is not to say that the plaintiff is entitled to wait until he or she has an overwhelming case. It is only to say that the court must afford a degree of latitude to a plaintiff in making this very individual and complicated determination.
[13] I therefore dismiss the defendant’s motion with costs.
[14] If the parties cannot agree on costs, counsel may provide me with brief written submissions within 30 days, the plaintiffs submissions within the next 20 days and the defendant’s within 10 days thereafter.
The Honourable Justice M.Z. Charbonneau
Released: October 4, 2017
COURT FILE NO.: CV-14-535-00
DATE: 2017/10/4
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONSTANCE MORIARTY
Plaintiff
– and –
PATRICK MORIARTY
Defendant/Moving Party
REASONS FOR JUDGMENT
Charbonneau, J.
Released: October 4, 2017