Court File and Parties
Court File No.: CV-14-516747 Date: 2019-06-20 Superior Court of Justice - Ontario
Re: Roxanne Rockford, Plaintiff And: Saidal Haque, Defendant
Before: Pollak J.
Counsel: Asher Honickman, for the Plaintiff J. Kendall Cumming, for the Defendant
Heard: January 16, 2019
Endorsement
[1] The defendant, Saidal Haque, seeks an Order for summary judgment dismissing the plaintiff’s action for damages arising out of a car accident on August 17, 2009 because she did not commence her action within the limitation period prescribed in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Limitations Act”).
[2] Ms. Rockford’s car was rear-ended by a car which was owned and operated by the Defendant.
[3] The Defendant submits that as the accident happened on August 17, 2009, the Plaintiff was statutorily required to commence her action by August 17, 2011. The Statement of Claim was issued on November 24, 2014, more than five years and three months following the accident.
[4] The parties agree on the law governing the issue of discoverability but disagree on the application of that law to the facts of this case.
[5] On this motion for summary judgment, Ms. Rockford must provide evidence to show that the issue of discoverability is a genuine one that requires a trial. On this motion, the Plaintiff must provide evidence to persuade the Court that the issue of discoverability requires a trial. The burden of proof is on the moving party Defendant to demonstrate that the limitation period has expired and that there is therefore no genuine issue requiring a trial.
[6] Ms. Rockford is presumed to have discovered that she had a viable claim that may meet the statutory threshold and exceed the applicable deductible by no later than August 17, 2011, two years after the Accident. The parties agree that the issue on this motion is whether Ms. Rockford’s claim was discovered or discoverable before November 24, 2012, two years before the issuing of the Statement of Claim.
[7] Ms. Rockford’s position on this motion is that her Claim was not discoverable until December 13, 2012 at the very earliest and therefore not discoverable before November 22, 2012. Her claim was issued on November 20, 2014. She submits that this Court may grant her a partial summary judgment dismissing the Defendant’s limitations defence even though she has not brought a cross-motion. Alternatively, she submits that there is a genuine issue requiring a trial on the issue of discoverability and the motion should be dismissed.
[8] In this action, Ms. Rockford must prove that her claim is not statute-barred and that she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue. (Farhat v Monteanu, 2015 ONSC 2119 at para 34.)
[9] She submits that the jurisprudence provides that a claim will not be discoverable until she has a medical diagnosis or opinion regarding the permanence and seriousness of her injuries, so that she has an objective appreciation that her claim will likely meet the threshold requirement of a permanent serious impairment. It is Ms. Rockford’s evidence that her first awareness that her claim could possibly meet the statutory threshold occurred on December 13, 2012 when her counsel received the report of Dr. Chen, psychiatrist, which had been commissioned for accident benefits purposes. Before then, her counsel's advice was that she should not issue a claim until she had enough evidence to support a threshold impairment and a general damages claim in excess of the deductible. Her counsel advised her in 2014 that her claim had the potential to succeed.
[10] The Defendant disagrees with the Plaintiff’s position that she needed a “medical diagnosis” on the “permanence and seriousness” of her injuries in order to “discover” her claim. Rather, the Defendant relies on the Plaintiff’s evidence that she was in constant pain and aware that the pain was impacting her life in a significant manner. She had to drop out of school due to the pain. She could not work because of the pain. It is submitted that by the end of 2011 Ms. Rockford knew, or ought to have known, the extent of the impact that her ongoing pain was having on her life, as she had withdrawn from two academic programs and she knew that she could not work in any capacity. She was limiting her daily activities. She was continuing treatment. She was taking medication regularly. As a result of all of this knowledge, Ms. Rockford should have been more diligent in investigating her condition. The Defendant’s position is that Ms. Rockford did not need a medical diagnosis to discover her claim as she knew the “material facts necessary to make a claim”.
[11] The plaintiff’s unchallenged expert evidence on this motion is that it is likely that a “threshold diagnosis” could not have been made in 2011. The Defendant has provided no evidence in response to this opinion. There is also no evidence that the Plaintiff was diagnosed with Chronic Pain Syndrome or any other condition suggestive of serious and permanent injuries and impairments before to November 24, 2012.
[12] The Defendant emphasizes that Ms. Rockford and her counsel had the obligation to credibly assess all of the evidence to determine whether she could meet threshold, including the her knowledge and particularly where the condition in issue is chronic pain in the absence of a clear objective injury.
[13] As noted above, the defendant relies on a plaintiff's own descriptions of her medical condition as set out in the evidentiary record before the Court.
[14] Ms. Rockford submits that the jurisprudence favours the Plaintiff in determining the issue of discoverability. The reason for this is the stringent provisions of the Insurance Act, R.S.O. 1990, c. I.8 that eliminate the claims of all but the most seriously-injured plaintiffs. The Defendant however, argues that our Courts have not held that a medical opinion is required in all cases. Ms. Rockford was only required to know the material facts necessary to make a claim.
[15] The Ontario Court of Appeal, in the decision of Fennell v. Deol, 2016 ONCA 249, [2016] O.J. No. 1745, held that when whether a person in the plaintiff's circumstances and with her abilities ought reasonably to have determined the elements of a claim, is relevant to consider what reasonable steps the plaintiff ought to have taken. The Defendant submits that Ms. Rockford’s failure to take steps to discover her claim is a relevant factor in the discoverability analysis.
[16] In the Fennell case, the Court of Appeal held that the question to ask to determine when the limitation period begins to run is whether there was 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 a balance of probabilities that the injury meets the statutory threshold.
[17] In considering whether a sufficient body of evidence was available to the Plaintiff in this action, the Defendant submits that this Court should consider her prior medical history, the severe and constant nature of her post-Accident complaints, her use of treatment and medication and the impact of said complaints on her life and academic goals. It is submitted that the evidence on the record shows that Ms. Rockford had the necessary factual knowledge to support her claim for damages as a result of the Accident but failed to issue her claim within the limitation period. The Plaintiff (and her counsel) it is argued, had a sufficient body of evidence to have a reasonable chance of persuading a judge, on the balance of probabilities, that Ms. Rockford’s injuries may meet the statutory threshold as of the August 17, 2011 statutory limitation date, and certainly no later than the end of December 2011.
[18] The principle of discoverability provides that a cause of action arises when the material facts on which it is based have been discovered, or ought to have been discovered, by the Plaintiff by the exercise of reasonable diligence. However, it has been held that a plaintiff will not have discovered her claim before she knows that she has a substantial chance to succeed in recovering a judgment for damages. (Everding v Skrijel, 2010 ONCA 437 at para 11). Ms. Rockford must have had an appreciation that her damages reached a point that they could be considered permanent and serious.
[19] In the case of Farhat v Monteanu, 2015 ONSC 2119, the court stated as follows:
“No doubt, much to the chagrin of the defence bar, s. 267.5(5) of the Insurance Act introduces some slack into the apparent rigidity of the presumption found in s. 5(2) of the Limitations Act, 2002. A plaintiff, and in some instances his or her negligent lawyer, can take comfort from this slack because 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.”
[20] The Defendant argues that Ms. Rockford did not act with due diligence in discovering the claim. As mentioned above, our Court of Appeal has held that due diligence is a factor that informs the analysis when a claim ought to have reasonably been discovered. However, that lack of due diligence is not in itself a ground to find that the limitation period has expired.
[21] The threshold requirements are specifically referred to in section 267.5 (5) of the Insurance Act, which provides that:
(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).
Section 267.5(5) of the Insurance Act, RSO 1990, c I.8.
[22] The Plaintiff’s evidence is that she was never advised that she had a severe and permanent injury until May of 2014. Her counsel deposed that neither his firm, nor anyone acting on its behalf, commissioned any medical reports on behalf of Ms. Rockford during the two year period following the Accident. The Defendant argues that any reasonable person involved in a car accident and who had Ms. Rockford’s ongoing and increasing pain after the accident would conclude that she may have a problem that is both serious and permanent. It is submitted that Ms. Rockford ought to have been more diligent in investigating her condition before May 2014. The Defendant’s position is that the combination of these circumstances should have led a reasonable person to conclude that her physical and psychological limitations would seriously and permanently interfere with her daily activities before 2014.
[23] Ms. Rockford agrees that each case must be decided on its facts but emphasizes that our jurisprudence has held that a claim will not be discoverable until the plaintiff is provided with some medical diagnosis or opinion regarding the permanence and seriousness of her injuries, so that she has an objective appreciation that her claim will likely meet the threshold of a permanent serious impairment and surpass the statutory deductible for general damages.
[24] In Ms. Rockford’s case, that medical opinion was received in 2016 after her claim had been issued, as she was diagnosed with fibromyalgia. Before December 2012 (less than two years from when the claim was issued), she followed up regularly with her family physicians and her chiropractor, along with a psychologist. She was advised that her pain was temporary and uncomplicated and she relied on the expert medical advice of her treating practitioners. Ms. Rockford’s evidence is that her symptoms worsened after 2011. I do find that there is no evidence to support the position that she knew or reasonably could have known that her impairments were permanent until she was diagnosed with fibromyalgia in 2016, or alternatively, when she was advised in December 2012 that her prognosis for a “full recovery” was poor.
[25] In the Hryniak v. Mauldin, et al 2014 SCC 7, [2014] S.C.R. 87 case, the Supreme Court of Canada gave us a roadmap of the approach to follow on a Motion for Summary Judgment. At paragraph 66 of the decision, the court states:
“On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…”
[26] The Ontario Court of Appeal stated in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 at paras. 35 and 37, that the advisability of a staged summary judgment process must be assessed in the context of the litigation as a whole. The Court noted that in a staged summary judgment process there was a risk that a trial judge would develop a fuller appreciation of the relationships and the transactional context than the motion judge, which can force a trial decision that would be implicitly inconsistent with the motion judge’s finding, even though the parties would be bound by that finding. This process, in such context, would risk inconsistent findings and substantive injustice. At paras. 44-45 the court stated:
“Evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice. This makes the motion judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
Judges are aware that the process of preparing summary judgment motion materials and cross-examinations, with or without a mini-trial, will not necessarily provide savings over an ordinary discovery and trial process, and might not “serve the goals of timeliness, affordability and proportionality” (Hryniak at para. 66). Lawyer time is expensive, whether it is spent in court or in lengthy and nuanced drafting sessions. I note that sometimes, as in this case, it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process. That is the risk, and is consequently the difficult nettle that motion judges must be prepared to grasp, if the summary judgment process is to operate fairly.”
[27] In the case of Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Ontario Court of Appeal considered the appropriateness of motions for summary judgment that will determine some of the issues, but will not dispose of the action as a whole. The Ontario Court of Appeal cautioned parties and judges about the limits and problems associated with partial summary judgment motions.
[28] The Court explained that partial summary judgment motions tend to defeat the stated objectives of proportionality, timeliness and affordability underlying Hryniak.
[29] It was held that a partial summary judgment motion should be considered a “rare procedure” that is reserved for issues that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner.
[30] The Court reasoned that this approach is entirely consistent with the Supreme Court’s comments in Hryniak v. Mauldin, 2014 SCC 7 as follows:
“[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, 2002 CanLII 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v. Daigle & Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:
[P]artial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.
[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450,120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922,133 O.R. (3d) 561.Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.
[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.
[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives Hryniak.
[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is always the possibility of an appeal.
[31] Second, a motion for partial summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.
[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.
[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.
[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.” [emphasis added]
[31] Having regard to these cautions, at the hearing of this motion, the Court raised the issue of the propriety of this motion for summary judgment with the parties. The parties submit that the Court should hear and consider the motion for summary judgment as this is the most cost effective and expeditious way to proceed. Alternatively, the Plaintiff’s position is that this motion should be dismissed as there are genuine issues requiring a trial.
[32] The parties submit that none of the concerns expressed by the Court of Appeal in the recent decision of Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 OR (3d) 561 are applicable in this case. The parties agree that the adjudication of this summary judgment would not cause any added delay, expense, wasted judicial resources, or lead to inconsistent findings. On the contrary, granting of partial summary judgment will streamline the trial process and will also avoid potentially inconsistent findings between this Honourable Court and the trial judge on the date of discoverability. I agree that this is one of those “rare” cases where the issue of the “limitation period” can be easily “bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner.
[33] Additionally, although the Plaintiff has not brought a cross-motion for a determination that her claim is timely, it is submitted that even in the absence of a cross-motion, the Court is entitled to make findings of fact pursuant to rule 20.04 of the Rules of Civil Procedure that the Claim is in fact timely and is therefore entitled to grant partial-summary judgment on the discoverability issue in favour of the plaintiff. The Defendant made no submissions on this issue.
[34] Applying the roadmap which I have just referred to above that the Supreme Court of Canada has given us to evaluate the evidence before the Court: 1) On the basis of the evidentiary record alone, are there genuine issues that require a trial? I must ask if the evidentiary record in front of me provides me with the evidence I need to "fairly and justly adjudicate the dispute”.
[35] In my view, the answer is yes. I find that there is no genuine issue requiring a trial on the limitations defence.
[36] I find that the first indication that Ms. Rockford's claim could possibly meet the threshold and surpass the statutory deductible was in a report of Dr. Chen, physiatrist, on December 13, 2012.
[37] Dr. Chen made a number of clinical diagnoses in his report, but none of these diagnoses provided an explanation for Ms. Rockford's ongoing pain. Dr. Chen noted the presence of chronic pain, but did not diagnose Ms. Rockford with Chronic Pain Syndrome. Despite not providing a medical basis for her ongoing pain complaints, Dr. Chen’s opinion was that the prognosis for a full recovery to pre-accident functional and physical level was poor. Dr. Chen’s report, however, offered no opinion as to whether Ms. Rockford was seriously impaired or whether the seriousness of her impairments were permanent. He opined only that she was unlikely to recover fully.
[38] The evidence is that Ms. Rockford remained hopeful that she would recover until 2014. At that time, she had not been told by a treating doctor that her impairments were serious and permanent and had not been diagnosed with any particular condition.
[39] At her cross-examination, Ms. Rockford explained that her experience at Western was completely different from what had happened years earlier at George Brown. She had new, more severe and more advanced symptoms at Western. She continued to have hope after withdrawing from George Brown and York, but her experience at Western caused her to “withdraw and completely lose hope” in her ability to continue with her education.
[40] On May 28, 2014, she was referred to a specialist, Dr. Khajehdehi, who later noted that she had chronic pain and also opined that further investigation was needed to rule out fibromyalgia.
[41] Ms. Rockford’s diagnosis of fibromyalgia was not confirmed until she was referred to Dr. Paula Williams in February 2016. Dr. Williams made the formal diagnosis of fibromyalgia and noted that “this chronic pain disorder was caused by the motor vehicle accident.” The prognosis for improvement was noted to be “fair to guarded”, but Dr. Williams cautioned that most individuals who suffer from fibromyalgia are never able to work again.
[42] The Defendant’s argument is based on the fact that Ms. Rockford had been dealing with pain and limitations from the outset. Her medical record is however, that her symptoms and impairments became worse over time.
[43] Further, Ms. Rockford submits that even if she subjectively or objectively knew that she had a serious impairment by 2011, she could not have known that her impairments were permanent until being diagnosed with fibromyalgia in 2016. It was only at that point that she learned of the nature of her ailment and her prognosis for the future given her knowledge.
[44] Ms. Rockford was advised on December 13, 2012 that her prognosis for a “full recovery” was poor. She did not have an explanation of the nature of her pain or whether she would be able to recover to a manageable level. She could not have known at that time that the seriousness of her impairments were permanent, only that some symptoms would likely be permanent. If December 13, 2012 was the “triggering event” for discoverability purposes, Ms. Rockford’s claim was brought within two years of that date and is therefore timely.
[45] The moving party has adduced no evidence that this is incorrect or that Ms. Rockford’s fibromyalgia could have been diagnosed earlier than it was.
[46] With respect to the issue of her lack of diligence in investigation of her condition, the evidence is that Ms. Rockford retained counsel in June of 2010. She relied on her counsel’s advice not to commence a claim until a sufficient body of evidence had been established that she had sustained a threshold impairment and general damages likely to exceed the deductible. Her counsel advised her to commence a claim in November of 2014.
[47] I agree with the Plaintiff’s characterization of the jurisprudence as providing that a claim is only discoverable when the plaintiff receives a medical diagnosis or some other information relevant to the permanence or seriousness of her condition. I find that before November of 2014, Ms. Rockford did not have a “sufficient body of evidence” to know that a legal proceeding was the appropriate means to seek a remedy pursuant to s. 5(1)(a)(iv) of the Limitations Act, 2002 and that her claim had a “substantial chance” of succeeding.
[48] I find that the evidentiary record on this motion does not support the Defendant’s limitation defence. For this reason, the motion for summary judgment is dismissed. As mentioned above, Ms. Rockford asks this Court to dismiss the limitations defence, even though she has not brought a motion requesting this remedy. The Defendant has not objected to the appropriateness of granting such a partial summary judgment.
[49] Even though Ms. Rockford has not brought a cross-motion to dismiss the limitation defence, there is no further evidence or submissions that the Defendant could have led which it held back because there was no cross-motion. On a summary judgment motion a party must “put its best foot forward (Chao v. Chao, 2017 ONCA 701, at para. 24). The Applicant presented all limitations issue evidence it had at the summary judgment motion regardless of whether a cross-motion was brought. The Applicant cannot claim that it would have led different evidence or made different submissions as it knew about the requested relief. In applying the analysis of the Court of Appeal in the Butera case, I find that the concerns raised regarding a partial summary judgment dismissing the limitations defence are not present in this case. This is a case where the issue of the limitations defence is one “that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner”.
[50] I grant partial summary judgment dismissing the limitations defence on the basis the findings of fact and law that I have referred to above.
[51] The Applicant was served with the Respondent’s factum which contains the request for partial summary judgment. The Applicant therefore had the opportunity to either address the issue at the motion hearing or request an adjournment to prepare a response. The Applicant addressed the limitations issue points in its factum and did not request such an adjournment to deal with this issue. This position is repeated by this court and the Court of Appeal in Gnys v. Narbutt, 2016 ONSC 2594, at para. 96 and Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150 at para. 17.
Costs
[52] The parties have reached an agreement on costs at the hearing of this matter. The Plaintiff is the successful party. The Plaintiff shall be awarded costs on a partial indemnity basis equal to $25,000, including all disbursements and applicable taxes and I so order.
[53] If the successful Plaintiff wishes to make submissions that costs on a higher scale should be awarded and the parties are unable to agree on such costs, they may make brief written submissions to me no longer than three pages in length. The Plaintiff’s submissions are to be delivered by 12:00 p.m. on June 26, 2019, and the Plaintiffs’ submissions are to be delivered by 12:00 p.m. on July 3, 2019. Any reply submissions are to be delivered by 12:00 p.m. on July 8, 2019.
[54] Submissions are to be delivered to Room 170, 361 University Avenue or via email to my assistant. After July 8, 2019, if no submissions are submitted for costs, the matter will be considered at an end and the file returned to the motions office.
Pollak J.
Date: June 20, 2019