COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17-71591
DATE: 2019/09/18
RE: Melanie Gates, Jessica Gates and Ryan Gates by their Litigation Guardian Arthur Edward Dixon, Plaintiffs (Respondents)
AND: Robert Gates, Therese Balfour and Balmoral Insurance Brokers Ltd.., Defendants (Appellants)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Mitchell Kitagawa, for the Appellant/Defendant Stephen Cavanagh, for the Cross-Appellant /Plaintiff
HEARD: August 6, 2019
REASONS FOR DECISION
[1] This is an appeal of a decision of Master Fortier dismissing a motion for summary judgment.[^1] That motion had been brought by the defendant Robert Gates who sought a finding that the limitation period had expired and the action against him was statute barred.
[2] Both parties appeal. The defendant argues that the master should have granted summary judgment in favour of the defendant and should have dismissed the action. The plaintiff argues that the master should have granted summary judgment in favour of the plaintiff and should have found that the limitation period had not expired. The master found that the evidence on the question of discoverability was less than clear and accordingly that the question of the limitation period should be determined on a full evidentiary record at trial.
[3] It is common ground that the standard of review in an appeal from the master is identical to an appeal from a judge.[^2] In general appellate courts are not to interfere with decisions at first instance unless the decision is clearly erroneous. The standard is correctness for questions of law but deference for findings of fact. A nuanced analysis is required for findings of mixed fact and law. The application of an incorrect legal standard to the facts may constitute an error of law.[^3] Similarly, an exercise of discretion is entitled to deference unless it has been exercised arbitrarily, capriciously or on wrong or inapplicable principles.[^4]
[4] Summary judgment motions in relation to the expiry of a limitation period have a mixed track record in Ontario. In theory trial efficiency would be enhanced by advance determination of this issue because otherwise there is the risk of a full-blown trial on liability and damages only to have the entire action fail because it is found to be statute barred. The problem arises because the Limitations Act incorporates both a discoverability test and a presumption. The principle of discoverability operates in favour of a plaintiff because the limitation period does not begin to run until all of the factors set out in subsection 5 (1) were known or ought to have been known. The presumption operates against the plaintiff by presuming those factors were known to the plaintiff on “the day the act or omission on which the claim was based took place.”[^5]
[5] Under the Act, the onus is on the plaintiff to rebut the presumption and to prove that the limitation period began to run at a later date. In clear cases a summary judgment motion may be useful because it may be possible to establish the date of discoverability by cogent affidavit evidence. In that case summary judgment may definitively establish one way or the other that the limitation period had expired or had not expired when the statement of claim was issued.[^6] This is not always the case particularly in motor vehicle cases where the question of discoverability is tied up with the question of determining permanency and seriousness of the injury under s. 267.5 (5) of the Insurance Act.[^7]
[6] In many cases, the question of reasonable diligence and when the seriousness of the injury should have been apparent is intertwined with issues of severity, causation and damages.[^8] Such cases remain ambiguous. The first question on such a summary judgment motion is whether or not the evidence establishes that discoverability is a genuine issue. If there is no genuine issue then summary judgment must be granted but if there is a genuine issue, the second question is whether it can be justly decided without a trial.[^9] While masters do not have access to the enhanced fact finding powers set out in Rule 20.04 (2.1) and (2.2), nevertheless the road map approach to summary judgment endorsed by the Supreme Court of Canada remains apt.[^10]
[7] It is entirely possible for a defendant to fail on a limitation period summary judgment motion because the plaintiff has sufficient evidence to demonstrate that discoverability is a live issue. It will not necessarily follow that summary judgment in favour of the plaintiff is appropriate. Discoverability may be a genuine issue but the evidence may be insufficient to conclusively determine the question on the affidavit evidence. Moreover, that evidence may be intertwined with evidence that must be called at trial in any event. It may be inappropriate to grant partial summary judgment in favour of the plaintiff.[^11]
[8] I say partial summary judgment because judgment in favour of the plaintiff declaring that the limitation period has not expired only removes a single issue from the trial. The plaintiff will still have to proceed to trial and prove the case on the merits. By contrast, summary judgment declaring that the limitation period had expired when the claim was commenced is complete. It results in a finding that the action is stature barred and it will be dismissed. The considerations are not symmetrical.
[9] Partial summary judgment in favour of a plaintiff gives rise to different considerations than complete summary judgment in favour of a defendant. The Court of Appeal has frequently cautioned against inappropriate use of partial summary judgment.[^12] It should not be granted if it will not shorten the trial and if there is a risk of contradictory findings of fact at the trial. Thus, in the example above, the fact that causation and threshold remain live issues and are intertwined with discoverability may be a significant impediment to the granting of partial summary judgment.
[10] It is in this context that Master Fortier’s decision must be analyzed. I do not agree that the master purported to develop a new test for summary judgment when she remarked that if the evidence on the issue of discoverability is “less than clear” summary judgment should be refused. Paragraphs 16 – 18 of her decision in particular indicate that the master was alive to the proper test. It is accurate to say that in motions concerning summary judgment which focus on the expiry of the limitation period and discoverability, the court must be satisfied that the evidence clearly proves the date when the limitation period began to run. As discussed above, if that remains unclear or ambiguous then summary judgment will not be appropriate.
[11] This is the sense in which the master used the phrase “less than clear”. The phrase is derived from a decision of the Court of Appeal in which the Court of Appeal was quoting a finding by a motions judge that the date when the appellant’s claim was discovered was “less than clear.” As the Court of Appeal held in that instance, the question on the summary judgment motion “is whether there is a genuine issue respecting discoverability requiring a trial, and not whether the limitations defence is sure to fail.”[^13] This is the situation here. The evidence is sufficient to show that discoverability may have postponed the running of the limitation period but it is insufficient to show that the limitations defence is sure to fail.
[12] In the case at bar, Master Fortier found that the moving party had put little persuasive evidence before the court to demonstrate that the plaintiff had the requisite knowledge or should have had that knowledge before the date that she identified. The defendant generally relied upon the presumption.[^14] The plaintiff on the other hand deposed that in the circumstances of the accident, she had no reason to think that anyone other than the driver of the other vehicle was at fault.
[13] The accident apparently occurred when a vehicle driven by Henrika Helgeveld attempted to cross Highway 60 in front of the vehicle driven by Robert Gates in which Melanie Gates was a passenger. Ms. Hengeveld was charged with dangerous driving and although when sued by the Gates she had pleaded contributory negligence on the part of Robert Gates, that appeared to be boilerplate without evidentiary foundation. According to Melanie Gates’ evidence, it was only when the defendant Hengeveld amended her defence to include a counterclaim that the possibility of liability on behalf of Mr. Gates was seriously mooted. It was only then that she had any reason to believe she would have to sue her own husband and she commenced the second action. That evidence is little more than an assertion at this stage but on the summary judgment motion, Robert Gates presented no evidence to undermine it and as the moving party he had the onus to demonstrate that summary judgment was appropriate. The master found that neither party had put their best foot forwards. Under the circumstances the master found that the evidence was insufficient to grant summary judgment.
[14] I see no error in principle justifying appellate intervention. Whether any potential fault on the part of Mr. Gates should have been apparent to the plaintiff at an earlier date is very much tied up with the question of whether or not any such fault can be proven or whether the counterclaim is simply a tactical device. I agree with the master that on the evidence before the court, this determination should not be made on a summary judgment motion but is an issue best left to the trial.
[15] The appeal and cross appeal are dismissed. Under the circumstances, there will be no costs of the motion.
Mr. Justice C. MacLeod
Date: September 18, 2019
COURT FILE NO.: 17-71591
DATE: 2019/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Robert Gates, Therese Balfour, and Balmoral Insurance Brokers LTD., Plaintiffs (Respondents)
AND: Melanie Gates, Jessica Gates and Ryan Gates by their Litigation Guardian Arthur Edward Dixon, Defendants (Appellants)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Mitchell Kitagawa, for the Appellant/Defendant Stephen Cavanagh, for the Cross-Appellant /Plaintiff
Reasons for decision
Mr. Justice Calum MacLeod
Released: September 18, 2019
[^1]: 2019 ONSC 144
[^2]: See Zeitoun v. Economical Insurance Group, 2009 ONCA 415.
[^3]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235
[^4]: Hunt v. Sutton Group Incentive Realty Inc., (2002) 2002 CanLII 45019 (ON CA), 60 OR (3d) 665 (C.A.), Kempf v. Nguyen, 2015 ONCA 114
[^5]: S. 5, Limitations Act, 2002, S.O. 2002, c. 24, Sched B, as amended
[^6]: See Yelda v. Vu, 2013 ONSC 4973 and Farhat v. Monteanu, 2015 ONSC 2119; (2015) 125 OR (3d) 267 (SCJ) as well as Pammett v. 1230174 Ontario Inc., 2014 ONSC 2447 (Master)
[^7]: RSO 1990, c. I.8, as amended
[^8]: See Huang v. Mai, 2014 ONSC 1156; (2014) 119 O.R. (3d) 117 (SCJ), Malyavina v. Akanda, 2017 ONSC 5458
[^9]: See Hryniak v. Mauldin, 2014 SCC 7; [2014] 1 SCR 87
[^10]: See Mehdi-Pour v. Minto Developments Inc, 2010 ONSC 5414 (Master); aff’d 2011 ONSC 3571 (Div. Ct.); leave to appeal refused (October 20, 2011), Doc. M40188 (Ont. C.A.).
[^11]: See Loy-English v. Fournier, 2018 ONSC 6212
[^12]: See Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369
[^13]: Collins v. Cortez, 2014 ONCA 685, para. 13
[^14]: The master gave little weight to the hearsay evidence of an associate lawyer. In that regard see Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447