Gionet v. Radford, 2018 ONSC 4810

COURT FILE NO.: 54910/14 (St. Catharines) DATE: 20180813

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Anna Gionet Plaintiff

AND:

Brian Radford and Kristie Mussell Defendants

COUNSEL: Richard Campbell, for the Plaintiff (Responding party) Scott W. Beattie, for the Defendant Brian Radford (Moving party)

HEARD: May 14, 2018

R. A. Lococo J.

Reasons for Decision

I. Introduction

[1] The Defendant Brian Radford brought a summary judgment motion seeking dismissal of a solicitor’s negligence action against him on the basis that the claim is statute barred. For the reasons set out below, I am dismissing the motion.

A. Background facts

[2] The dispute between the parties arose from a 2007 real estate transaction. Under the agreement of purchase and sale, the Defendant Kristie Mussell agreed to purchase a residential property in St. Catharines, initially as the sole purchaser. The Plaintiff Anna Gionet says that she and her late husband Michel Gionet agreed to assist in the purchase by “co-signing” the mortgage application. The Gionets were family friends of Ms. Mussell and her spouse, Brian McFadden. Under an amendment to the purchase agreement, the Gionets were added as purchasers along with Ms. Mussell.

[3] Mr. Radford acted as solicitor on the purchase side of the transaction. He also acted for the lender, First National Financial. Prior to closing, Mr. Radford met with the Gionets, Ms. Mussell and Mr. McFadden at Mr. Radford’s law office. What happened at that meeting is in dispute. Mr. Radford says that he fully explained the mortgage documents to Ms. Gionet, and advised her to obtain independent legal advice. Ms. Gionet denies that he did. However, when cross-examined on her affidavit, Ms. Gionet acknowledged that she understood from the mortgage broker that she and her husband would be liable if Ms. Mussell defaulted on the mortgage.

[4] Upon the closing of the transaction, a deed in favour of Ms. Mussell and the Gionets was registered on title, together with a first mortgage in favour of First National Financial. Ms. Mussell and the Gionets were the chargors under the mortgage, and Mr. McFadden was identified as providing spousal consent. On the mortgage documentation, the service address for the chargors, including Ms. Gionet, was the municipal address of the charged property. Ms. Gionet never resided at the charged property. She continued to live at her existing residence, which she jointly owned with her husband.

[5] In late January 2011, Michel Gionet died suddenly. In February 2011, Ms. Gionet received a telephone call from First National, advising that Ms. Mussell was not making mortgage payments. Ms. Gionet says that (i) she advised First National of her husband’s passing and of her belief there was life insurance on the mortgage, (ii) she asked First National to call her back if there continued to be a problem, and (iii) she never received a call back from First National.

[6] Ms. Gionet has provided handwritten “patient notes” from her family doctor, indicating that commencing in February 2011 until September 2011, she consulted her doctor about serious grief issues arising from the sudden death of her husband. Her doctor prescribed an antidepressant and a series of grief classes. According to Ms. Gionet, the effect of her extreme grief included an inability to function, memory lapses and abuse of alcohol. She did not return to work until October 2011, when her sick leave ran out.

[7] In July 2011, First National issued a Statement of Claim against Ms. Gionet, Mr. Gionet’s estate, Ms. Mussell and Mr. McFadden, seeking payment under the mortgage and possession of the charged property. An affidavit of service indicates that Ms. Gionet was personally served with the Statement of Claim on July 26, 2011. Ms. Gionet says she has no recollection of receiving that document, and does not believe that she did.

[8] On August 24, 2011, First National obtained a default judgment in the mortgage action for payment of the aggregate amount of $143,648 and possession of the charged property. In September 2011, First National also obtained an order granting leave to issue a writ of possession. The order also provided that the defendants in that action may bring a motion to set aside the order or the default judgment. An affidavit of service indicates that Ms. Gionet and the other defendants were served with the latter order on September 26, 2011, through lettermail addressed to each of them at the address of the charged property. Ms. Gionet says that she did not receive that document. No motion was brought to set aside the order or the default judgment.

[9] Ms. Gionet says that she was not aware of the default judgment against her until September 2013, when she commenced a survivorship application relating to her own residence. At that time, she learned that there was a writ of execution against her relating to First National’s default judgment. She paid the amount of the judgment to discharge the execution.

[10] By Statement of Claim dated January 20, 2014, Ms. Gionet commenced an action against Mr. Radford and Ms. Mussell. Ms. Gionet alleged solicitor’s negligence against Mr. Radford, based on the following acts and omissions (among others): (i) failing to advise Ms. Gionet of her obligations under the mortgage documents; (ii) failing to refer her for independent legal advice; and (iii) failing to indicate her correct address for service on the mortgage documentation, thereby preventing her from receiving notices from the lender.

B. Position of the parties and matters to be determined

[11] Mr. Radford now seeks summary dismissal of the action against him. Without addressing the merits of the allegations by either party, Mr. Radford says that the court should find that there is no genuine issue requiring a trial based on a limitation defence.

[12] According to Mr. Radford, the two-year limitation period expired at least several months before Ms. Gionet commenced her negligence action against Mr. Radford in January 2014. The basis for his position is set out below.

1. The evidence indicates that Ms. Gionet discovered her negligence claim against Mr. Radford at latest in July 2011, when she was personally served with the Statement of Claim for First National’s mortgage enforcement action. Ms. Gionet knew or ought to have known of her negligence claim against Mr. Radford by that date.
2. Ms. Gionet is also presumed to have actual knowledge of the claim against him by that date unless the contrary is proved. The evidence does not rebut that presumption.
3. Ms. Gionet is presumed to have been capable of commencing an action against Mr. Radford at all times, unless the contrary is proved. The medical evidence that Ms. Gionet provided does not rebut that presumption.

[13] Ms. Gionet denies that she discovered her negligence claim against Mr. Radford in July 2011, or at any earlier date. The basis for her position is set out below.

1. The evidence indicates that Ms. Gionet discovered her claim in September 2013, when she was advised of the writ of execution against her relating to the default judgment in the mortgage enforcement action. At that time, she first learned of that action and the default judgment.
2. Even if she had been aware of the mortgage enforcement action prior to the judgment, that knowledge would not have been sufficient to constitute actual knowledge of her negligence claim against Mr. Radford. It was only when she learned of the judgment that she would have been aware that she suffered loss as a result of Mr. Radford’s conduct, a necessary element for a negligence claim.
3. To the extent that a presumption of actual knowledge of the negligence claim arose when judgment was issued in the mortgage action, that presumption was rebutted. The evidence indicates that notice of the order granting leave to issue a writ of possession was sent to the address of the charged premises in September 2011. The order and the default judgement did not come to her attention at that time, since she did not reside there.
4. In the alternative, if the negligence claim was discovered or discoverable prior to January 2012, the limitation period had ceased to run. The evidence indicates that she was incapable of commencing an action because of her mental or psychological condition arising from her grief following her husband’s death.

[14] In light of the foregoing, the matter to be determined is whether a trial is required to determine the following issues:

1. Date the claim was discovered or discoverable – Was Ms. Gionet’s claim against Mr. Radford discovered or discoverable prior to January 2012?
2. Tolling of the limitation period – If so, did the limitation period cease to run because Ms. Gionet was incapable of commencing an action against Mr. Radford?

[15] In the balance of these Reasons, I will first summarize in general terms the requirements applicable to summary judgment motions. I will then address in turn the issues to be determined on this motion, as set out above.

II. Legal principles – summary judgment

[16] Summary judgment will be granted if the court is satisfied that there is no genuine issue requiring a trial: r. 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 49-50, the Supreme Court of Canada interpreted this test as follows:

49 There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication.… It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[17] In determining whether the test for summary judgment has been met, the motion judge has enhanced fact-finding powers that entitle the judge to weigh the evidence, evaluate credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial: r. 20.04(2.1). These enhanced powers are therefore discretionary and presumptively available: Hryniak, at para. 45. Using these powers will not be against the interest of justice if using them will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak, at para. 66. For the purpose of exercising these enhanced powers, the motion judge is authorized to hear oral evidence, referred to as a “mini-trial”: r. 20.04(2.2).

[18] The court in Hryniak, at para. 66, also suggested a roadmap or approach to a summary judgment motion. The motion judge should first determine whether there is a genuine issue requiring a trial based only on the evidence before the court on the motion, without using the enhanced fact-finding powers. If there appears to be a genuine requiring a trial, the motion judge should then determine if a trial can be avoided by using those fact-finding powers. The court in Hryniak, at para. 78, also suggested that where a motion judge dismisses a summary judgment motion, the motion judge should seize herself of the matter as the trial judge in the absence of compelling reasons to the contrary.

[19] The onus of establishing that there is no genuine issue requiring a trial is on the moving party, in this case, Mr. Radford. However, both sides are required to “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Canada (Attorney General) v. Lameman, 2008 SCC 12, [2008] 1 S.C.R 372, at para. 11, quoting Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434. This requirement is consistent with r. 20.02(2), which requires the responding party to place before the motion judge evidence of specific facts showing that there is a genuine issue requiring a trial. The motion judge is entitled to assume that the parties have placed before the court all the evidence the parties will present if there is a trial: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (C.A.), at para. 17; and Martin v. Attard Plumbing Ltd., 2015 ONSC 5037, 48 B.L.R. (5th) 13, at para. 48.

[20] With that background, I will now address the issues that arise on this motion.

III. Date the claim was discovered or discoverable

[21] Is a trial required to determine whether Ms. Gionet’s claim against Mr. Radford was discovered or discoverable prior to January 2012?

A. Legal principles – limitation period

[22] The basic limitation period for Ontario actions is provided in ss. 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Under s. 4, a proceeding in respect of a claim shall not be commenced more than two years after the claim was discovered. Under s. 5(1), a claim is discovered on the earlier of (a) the day on which the person making the claim first knew of an actionable claim for a loss arising from the act or omission of the person against whom the claim is made, and (b) the day a reasonable person ought to have known of the matters giving rise to the claim. Under s. 5(2), a person with a claim shall be presumed to have known of the matters giving rise to the claim on the day that the act or omission on which the claim is based took place unless the contrary is proved.

[23] The complete text of ss. 4 and 5 is set out below.

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.

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).

(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.

[24] Subject to the presumption in s. 5(2) (discussed further below), a claim is discovered under clause 5(1)(a) based on the claimant’s actual knowledge of the matters set out in that clause. By way of contrast, a claim is discovered under the objective test in cl. 5(1)(b) based on what the claimant “ought to have known” acting reasonably, whether or not the claimant actually turned his or her mind that the matters giving rise to the claim. A claim that meets the objective test in cl. 5(1)(b) is often referred to as being “discoverable”.

[25] Previous court decisions have considered the issue of due diligence as it relates to the objective test in cl. 5(1)(b) and the presumption in s. 5(2). When considering whether the objective test in cl. 5(1)(b) is met, it is relevant to consider what steps the claimant ought to have taken to discover the matters giving rise to the claim against the other party: see Mancinelli v. Royal Bank of Canada, 2017 ONSC 7384 at paras. 9-11. For this purpose, the onus is on the claimant to provide evidence by way of affidavit to show that the claimant took reasonable steps to discover the potential claim or to explain why no steps were taken: see Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 83 O.R. (3d) 648 (C.A.), at paras. 16 and 20-22.

[26] By way of contrast, as noted by the Ontario Court of Appeal in Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para 26, the presumption that arises under s. 5(2) is a presumption of actual knowledge of the matters giving rise to the claim as set out in cl. 5(1)(a). There is no onus on the claimant to “show due diligence to rebut the presumption in s. 5(2)”. To overcome the presumption, it is only necessary for the claimant to prove that he or she did not actually know of the matters giving rise to the claim as set out in cl. 5(1)(a). Therefore, the failure to take reasonable steps is not in and of itself a reason to dismiss a claim as statute barred: see Fennell, at paras. 18 and 24; and Mancinelli, at para. 11.

B. Analysis

[27] Mr. Radford says that the limitation period for the action against him started to run more than two years before the date that Ms. Gionet commenced her action in January 2014. According to Mr. Radford, Ms. Gionet discovered the claim in February 2011, when First National advised her that Ms. Mussell was not making mortgage payments. As of that date, she knew that Ms. Mussell was not making the required mortgage payments and, by her own admission, knew and understood that she was responsible for the mortgage in the event of a default. She also acknowledged her responsibility by advising First National of her (mistaken) understanding that there was a life insurance policy to cover the mortgage and asking to be notified if there continued to be a problem.

[28] Mr. Radford also says that Ms. Gionet discovered her claim against him at latest in July 2011, when she was personally served with the Statement of Claim for First National’s mortgage enforcement action. By that time, she knew or should have known that the mortgage remained in default. Mr. Radford says that given her knowledge that she was responsible for the mortgage, she therefore had no viable defence to the action.

[29] As previously noted, plaintiff’s counsel disputed the defence position that knowledge Ms. Mussell was not making mortgage payments or knowledge of commencement of the mortgage enforcement action would have been sufficient to constitute discovery of Ms. Gionet’s claim against Mr. Radford. In order to establish negligence, one of the essential elements is that the claimant suffer damage as a result of a breach of duty. As provided in cl. 5(1)(a)(i) of the Limitations Act, a claim is discovered when (among other things) the claimant first knew that damage “had occurred”. Ms. Gionet says that the prospect of a future loss is insufficient to trigger the commencement of the limitation period, citing Inzola Main Street Inc. v. Brampton (City), 2017 ONSC 5392 at para. 53; and IPEX Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 2717, 4 B.L.R. (5th) 148, at para. 22.

[30] In Inzola, the defendant City was building an addition to City Hall. The plaintiff owner of an adjacent building wrote to the City, expressing concern that the addition would create an unanticipated snow load on the plaintiff’s building. More than two years later, after completion of the addition, the plaintiff brought an action claiming damages for negligence from the City, based on a potential snow load problem. The court dismissed the City’s summary judgment motion, rejecting the City’s argument that the claim was statute barred. At paras. 52-53, the motion judge in Inzola stated as follows:

Where damage is an element of a cause of action or claim, a limitation period can only commence when the person with the claim suffers some damage that has occurred, and that damage is discoverable: Peixeiro v. Haberman, [1997] S.C.J. No. 31, at paras. 18 and 36; and Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, [2016] O.J. No. 1118, at para. 33.

The prospect of injury, loss or damage at some future date is not sufficient to commence a limitation running. A claim does not arise only because a person recognizes or is concerned that they may suffer that injury, loss or damage at some point in the future. Justice Belobaba explained it this way in IPEX v. Lubrizol, 2012 ONSC 2717, at para. 22:

22. In my view, it is self-evident that the injury, loss or damage that "has occurred" must be injury, loss or damage that was sustained by the person with the claim. It is also, in my view, a self-evident proposition of modern limitations law that the clock begins to run with actual harm (known or discoverable) and not just the possibility of future harm. The latter proposition doesn't make any sense either in terms of public policy or otherwise.

[31] Citing the above case law, Ms. Gionet argued that there was no evidence that she suffered loss of any sort until the default judgment in First National’s mortgage enforcement action was issued against her in August 2011. In her submission, the limitation period presumptively began to run at that time, since she would be presumed by s. 5(2) of the Limitations Act to have actual knowledge as of that time that damage “had occurred”. Ms. Gionet also argued that this presumption was rebutted by other evidence indicating that she did not in fact have actual knowledge of the default judgment until a later time that was within two years before the action was commenced.

[32] As previously indicated, Mr. Radford’s counsel argued that Ms. Gionet discovered her claim at an earlier time, that is, when First National advised her that Ms. Mussell was not making mortgage payments, or at latest, when she was personally served with the Statement of Claim. If that position is correct, by implication, the cause of action in negligence against Mr. Radford must have accrued by the relevant date. As indicated by the Supreme Court of Canada in Peixeiro v. Haberman, [1997] S.C.R. 549, at para. 36 (cited above in Inzola), it would make no sense for a limitation period to commence before the cause of action has accrued, which may result in “the injustice of precluding an action before the person is able to raise it.” Where damage is an element of the cause of action, the court in Peixeiro, at para. 18, stated as follows:

The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor …, the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period. [Emphasis added.]

[33] The above passage in Peixeiro was also relied on by Molloy J. in Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin & Younger (2001), 53 O.R. (3d) 208 (S.C.), at para. 17, a decision defence counsel cited. In that case, a condominium developer brought a solicitor’s negligence claim against the lawyer who represented the developer in the sale of condominium units to a prospective purchaser. In a separate action, the developer was ordered to return the deposit to the purchaser based on wording in an addendum to the purchase agreement that the developer alleged was negligently prepared by the developer’s lawyer. The defendant lawyer sought summary dismissal of the solicitor’s negligence claim as statute barred, since the action was brought more than two years after the problematic wording of the addendum first came to light. The developer argued that the limitation period in the solicitor’s negligence action did not start to run until the court ruled against the developer in the separate action. According to the developer, the cause of action did not accrue until that time, since it was only then that the developer suffered damage, an essential element of the cause of action of negligence. Molloy J. rejected that argument. She concluded, at para. 20, that the limitation period commenced once it was reasonably clear to the developer (Kenderry) that there was a problem with the wording of the addendum to the purchase agreement. At para. 21, she went on to state as follows:

[As of that time,] Kenderry was in a position to know all of the material facts it needed to plead the cause of action against its solicitors. It could have pleaded a duty of care, breach of that duty and damage as a result, even though the full extent of the damage was not clear. It was not necessary for Kenderry to wait for a finding in favour of the Purchaser before it could make out a cause of action against the solicitor. [Emphasis added.]

[34] The same principles are apposite when considering the issue of when the cause of action underlying Ms. Gionet’s negligence action against Mr. Radford accrued. Applying those principles, I agree with plaintiff’s counsel that the evidence supports Ms. Gionet’s position that the limitation period did not commence when First National called to advise her that Ms. Mussell was not making payments under the mortgage. However, as indicated further below, I agree with defence counsel that the claim against Mr. Radford was discoverable by the time that First National issued the Statement of Claim in the mortgage enforcement action.

[35] The uncontested evidence indicates that upon learning that Ms. Mussell was not making the mortgage payments, Ms. Gionet advised First National of her husband’s passing and of her belief that there was life insurance on the mortgage. She also asked First National to call her back if there continued to be a problem, and did not receive a call back. Based on those facts, it would be correct to say that she was aware at that time of the “prospect” or “possibility” of loss at a future date (using the language of Inzola and IPEX). However, the evidence does not support the conclusion that the loss “had occurred”, nor that a law suit against Mr. Radford would be “an appropriate means to remedy it”: see cls. 5(1)(a)(i) and (iv) of the Limitations Act. As well, the evidence does not support the conclusion that her claim against Mr. Radford was discoverable at that time, that is, that she “ought to have known” of the claim, acting reasonably: see cl. 5(1)(b). Therefore, I agree with plaintiff’s counsel that the limitation period did not commence when First National advised Ms. Gionet that Ms. Mussell was not making mortgage payments.

[36] That being said, I do not agree with plaintiff’s counsel that the evidence supports a finding that Ms. Gionet’s cause of action in negligence did not accrue until First National obtained a default judgment against Ms. Gionet. Consistent with the position taken by Mr. Radford’s counsel, the evidence indicates that the claim in negligence against Mr. Radford would have accrued by the time First National issued its Statement of Claim in the mortgage enforcement action, with the result that the limitation period presumptively commenced at that time. By that time, parallel to the situation in Kenderry-Esprit, Ms. Gionet “would have been in a position to know all of the material facts it needed to plead the cause of action against its solicitors”, including the essential element of loss flowing from Mr. Radford’s alleged breach. Among other things, she would have been in a position to know that the payment obligation under the mortgage was not being satisfied, whether by Ms. Mussell or an insurance policy. Consistent with the conclusion in Kenderry-Esprit, at para. 21, it was not necessary to wait for default judgment in First National’s favour to establish the extent of the loss.

[37] On the foregoing basis, I am satisfied that by reason of s. 5(2) of the Limitations Act, Ms. Gionet would be presumed to have actual knowledge of the matters set out in cl. 5(1)(a) relating to her claim against Mr. Radford by the time that First National commenced its mortgage enforcement against her in July 2011. However, I am not satisfied that the evidence before me supports the summary dismissal of the action on the basis that the limitation period commenced more than two years prior to commencement of the action in January 2014.

[38] Ms. Gionet provided affidavit evidence that calls into question whether she had actual knowledge of the mortgage action at any time prior to September 2013. Ms. Gionet deposed that when she brought her survivorship application, she first became aware of the mortgage action and the default judgment against her when she was advised of the writ of execution arising from the judgment. She denies receiving the order granting leave to issue the writ of execution, which would have provided notice of the default judgment. Her evidence is that the order did not come to her attention after being mailed to the charged premises where she never resided. She also contests being personally served with the Statement of Claim for the action in July 2011, contrary to the process server’s affidavit evidence. As well, as indicated in the next section of these Reasons, her counsel argued that even if Ms. Gionet was served with First National’s claim at that time, she was medically incapable of understanding that she was being sued.

[39] In light of the foregoing, I agree with plaintiff’s counsel that the presumption in s. 5(2) of the Limitations Act is not determinative of the limitation issue on this motion. On the above analysis, the limitation period presumptively commenced in July 2011, more than two years prior to the commencement of the action. However, Ms. Gionet’s evidence calls into question whether Ms. Gionet’s negligence claim against Mr. Radford was discovered or discoverable prior to September 2013, when she became aware of the writ of execution relating to the First National’s default judgment. Considering the evidence as a whole, I have concluded that Mr. Radford has not met the onus of establishing that there is no genuine issue requiring a trial based on the commencement of the limitation period more than two years prior to January 2014, when the Statement of Claim was issued. In my view, a trial is required to determine (among other things) whether the limitation period commenced more than two years prior to that time.

[40] In his oral submissions, plaintiff’s counsel argued that I should go further by granting partial summary judgment in Ms. Gionet’s favour on the limitation issue, making a definitive finding that her action against Mr. Radford is not statute barred. That issue was not raised in advance by way of cross-motion, nor was it referred to in the plaintiff’s factum. I agree with plaintiff’s counsel that the court has the authority to make such an order in an appropriate case, even if the issue is not raised in advance by way of cross-motion: see Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, 120 O.R. (3d) 768, at para. 51; and King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 RPR (6th) 26, at para. 14. However, in the circumstances of this case, I have concluded that it be in the interests of justice for the necessary findings of fact to be made in a full trial setting, with the benefit of oral testimony to provide the opportunity to assess the credibility of the witnesses and the reliability of conflicting evidence.

[41] In that regard, I considered whether it would be appropriate to make further use of the enhanced fact-finding powers in r. 20.04, including by ordering a “mini-trial” on the limitation issue. I concluded, however, that there would be no significant benefit in further segmentation of the decision-making process in what appears to be a straight-forward action involving relatively modest amounts. As well, given in particular that the evidence and submissions on the motion did not address the merits of Ms. Gionet’s claim, I see no significant advantage from an efficiency standpoint in seizing myself of the trial.

IV. Tolling of the limitation period

[42] Is a trial required to determine if the limitation period ceased to run because Ms. Gionet was incapable of commencing an action against Mr. Radford?

[43] Under s. 7(1) of the Limitations Act, the two year limitation period in s. 4 does not run during any time in which the claimant “is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition.” Under s. 7(2), a person is presumed to be capable of commencing a proceeding at all times unless the contrary is proved.

[44] The effect of s. 7(1) is to extend the limitation period by the period of the incapacity: see Andriano v. Napa Valley Plaza Inc., 2010 ONSC 5492. The limitation period is said to be “tolled” for that period of time.

[45] Ms. Gionet says she was incapable of commencing an action because of her mental or psychological condition arising from her grief following her husband’s sudden death in January 2011. In the preceding section of these Reasons, had I found that Ms. Gionet’s claim against Mr. Radford was discovered or discoverable prior to January 2012 (as the defence requested), it would have been necessary for me to consider whether the limitation period was tolled by reason of Ms. Gionet’s incapacity. However, I did not make the definitive finding that the defence requested. I instead found that a trial was required to determine (among other things) whether the limitation period commenced more than two years prior to the commencement of the action. Therefore, it may be considered unnecessary to address the tolling issue in these Reasons. Nevertheless, since counsel addressed the tolling issue during their submissions on this motion, I am prepared to provide certain observations, to the extent they may be of assistance. However, as indicated further below, I hesitate to draw any definitive conclusions.

[46] To support her position that she was incapable of commencing an action following her husband’s death in January 2011, Ms. Gionet relied primarily on her family doctor’s “patient notes” relating to consultations with him in the period February to September 2011, during which he prescribed antidepressant medication and grief classes. She also relied on her own evidence relating to the effect of her extreme grief, including her inability to function, memory lapses and abuse of alcohol during that period. Based on that evidence, her counsel also argued that even if she was personally served with First National’s mortgage claim in July 2011, Ms. Gionet was medically incapable of understanding that she was being sued.

[47] In response, defence counsel argued that the evidence Ms. Gionet relied on to support her alleged incapacity to commence an action was not sufficient to rebut the presumption of capacity in s. 7(2) of the Limitations Act. In particular, defence counsel noted that there was nothing in family doctor’s notes to support the position that she was incapable of commencing an action during the relevant period, and no separate medical opinion to that effect. He also noted that the evidence she relied on did not address Ms. Gionet’s condition after her return to work in October 2011, which was still more than two years before her action was commenced in January 2014. According to defence counsel, there no evidence to support the tolling of the limitation period during that time period.

[48] As a partial answer to defence counsel’s submissions, plaintiff’s counsel relied on the decision of Perell J. in Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, 120 O.R. (3d) 768 to support the position that an expert medical opinion was not required to establish incapacity. In that case, the plaintiff brought an action for damages arising from a “slip and fall” after exiting a church. She was taken by ambulance to the hospital, where she underwent surgery. She was discharged after two weeks. Based on erroneous information that the plaintiff provided to her lawyers about the date of the accident, the plaintiff’s action against the defendant church was commenced a few days after the second anniversary of the accident. The defence brought a summary judgment motion on the basis that the action was statute barred. Perell J. accepted the plaintiff’s argument that the limitation period was “tolled” by her incapacity until her discharge from the hospital. He therefore dismissed the defendants’ summary judgment motion and instead granted partial summary judgment to the plaintiff, finding that her action was not statute barred. To support the finding that the plaintiff was incapable of commencing an action during that period, Perell J. relied on the medical record of the plaintiff’s stay in hospital. In the circumstances of that case, he rejected the defence position that expert opinion evidence of her incapacity was required: see Landrie, at paras. 35 and 52-56.

[49] I am sympathetic to defence counsel’s position that the evidentiary basis for tolling the limitation period in Landrie was more compelling than it is for Ms. Gionet. I also find persuasive the defence position that Ms. Gionet provided scant evidence of incapacity after the fall of 2011, which was still more than two years prior to the commencement of the action. In all the circumstances, I have significant doubt whether the evidence before me would justify a finding that Ms. Gionet was incapable of commencing an action against Mr. Radford for any period that would be determinative of the limitation issue in this case.

[50] That being said, I am not prepared to make any definitive factual determinations with respect to Ms. Gionet’s alleged incapacity at any particular time. As I have indicated, it is unnecessary to do so, given my previous conclusion that a trial was required to determine whether the limitation period commenced more than two years prior to the commencement of the action.

[51] As well, I doubt the utility of in effect bifurcating the tolling issue from the limitation issue generally, given that the underlying factual considerations are to some extent intertwined. As previously indicated, plaintiff’s counsel argued that even if she was personally served with First National’s mortgage claim in July 2011, the evidence supported the conclusion that Ms. Gionet was medically incapable of understanding that she was being sued. Her condition at that time may also be relevant to the question of whether her claim was discoverable at that time, that is, whether (in the words of cl. 5(1)(b)) “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the matters giving rise to the claim. Therefore, Ms. Gionet’s capacity is arguably in issue, whether or not the evidence would support the conclusion that she was incapable of herself bringing an action against Mr. Radford at any relevant time.

V. Conclusion

[52] Accordingly, an order will issue in the following terms:

1. Mr. Radford’s summary judgment motion is dismissed.
2. Costs of this motion shall be determined based on written submissions.

[53] If the parties cannot agree on costs, each party may serve and file brief written submissions (not to exceed three pages) together with a costs outline within 21 days. Each party may reply by brief written submissions within seven days. All such submissions are to be forwarded to the Trial Coordinator and to me at 59 Church Street, 4th Floor, St. Catharines ON L2R 7N8. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R.A. Lococo Released: August 13, 2018