Court File and Parties
Court File No.: CV-16-552928 Date: 2019-01-29 Ontario Superior Court of Justice
Between: Tamar Axenova, Plaintiff – and – Ioannis Bakas & Sergiy Viktorov Przhebelskyy & Hertz Canada (N.S.) Company o/a Rep. Hertz Canada Vehicles Partnership, Defendants
Counsel: No one appearing for the Plaintiff Reine Elizabeth Reynolds, for Defendants Ioannis Bakas, Hertz Canada (N.S.) Company o/a Rep. Hertz Canada Vehicles Partnership
Heard: January 29, 2019
Before: M. D. Faieta J.
Reasons for Decision
[1] The Plaintiff alleges that she suffered personal injuries as a result of a motor vehicle accident on May 15 2014, in the City of Vaughan. The Plaintiff was a passenger in an automobile owned by the Defendant Hertz and operated by the Defendant Ioannis Bakas (“Hertz Defendants”). The Hertz vehicle collided with a vehicle operated by the Defendant Sergiy Victor Przhebelskyy.
[2] The Plaintiff commenced this action on May 17, 2016 which is two year and two days after the collision occurred.
[3] The Statement of Defence filed by the Defendants Bakas and Hertz pleads that this action is statute barred as it was not commenced before the expiry of the applicable limitation period.
[4] The Statement of Defence filed by the Defendant Przhebelskyy also alleges that this claim is statute-barred.
[5] On July 24, 2018, Justice Firestone scheduled this motion at the request of the Hertz defendants. His endorsement states:
Motion for full summary judgment on limitation issue fixed to January 29, 2019 for 1 day. Timetable signed by me to apply. The timetable provided that the moving party was to file its motion record by September 4, 2018, the responding record was to be filed by September 18, 2018, cross-examinations were to be completed by October 29, 2018, the moving party’s factum was to be filed by November 30, 2018 and the responding factum was to be filed by January 4, 2019.
[6] The Hertz Defendants have filed their materials in accordance with the Justice Firestone’s endorsement.
[7] The Plaintiff has not filed any materials.
[8] The contemplated cross-examinations were never held.
[9] The Plaintiff did not appear at the hearing of this motion today.
[10] When asked by counsel for the Hertz Defendants on January 21, 2019 to confirm the Plaintiff’s position with respect to the motion, counsel for the Plaintiff, Ms. Anna Tamir, responded on January 24, 2019 that she was not available on January 29, 2019. When asked why, Ms. Tamir advised that she had to travel out of Canada for family reasons. Counsel for the Hertz Defendants advised on January 24, 2019 that her clients would oppose any request to adjourn this motion. Ms. Tamir responded:
You are not consenting – that’s fine. I am filing a complaint with the LSO for sharp practice. I suggest you familiarize yourself with your obligations to the LSO and with consequences of your actions.
[11] Counsel for the Hertz Defendants responded on January 24, 2019 that she would not be consenting to the adjournment of this motion.
[12] This motion two issues. First, whether to proceed in the absence of counsel for the Plaintiff. Second, whether to grant the motion for summary judgment.
Adjournment?
[13] In my view it would not be in the interests of justice to adjourn this motion in the absence of a motion for adjournment. The Plaintiff could have served and filed materials requesting an adjournment in advance. At the very least, Ms. Tamir could have arranged for a colleague to attend this motion to seek an adjournment. She did neither. While it is sensible and good practice for counsel to accommodate each other’s schedules, in this case there was no reason for counsel for the Hertz Defendants to agree to the adjournment of this motion when it is apparent from all the circumstances, including the lack of materials filed by the Plaintiff as required by Justice Firestone about six months ago, that the Plaintiff is simply seeking to stall the hearing of this motion for no other reason than to delay its outcome. Accordingly, I proceeded with the hearing of the summary judgment motion.
Should the Motion for Summary Judgment Be Granted?
Is this an appropriate case for summary judgment?
[14] The Hertz Defendants brings this motion for summary judgment on the ground that the action is barred by provisions of the Policy and/or the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”).
[15] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[16] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada stated, at para. 49:
There will be no genuine issue requiring a 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.
[17] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: see Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: see Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96, 98 O.R. (3d) 641, at paras. 17-19.
[18] Given the discrete issue, and the evidence filed, I find that I am able to make a “fair and just” determination of the merits of the motion for summary judgment.
Should the action against the Hertz Defendants be dismissed on the basis that it is statute-barred?
[19] The relevant provisions of the Act are as follows:
Definitions
- In this Act …
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission…
Basic limitation period
- 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.
Discovery
- (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). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(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. 2002, c. 24, Sched. B, s. 5 (2).
[20] Given s. 5(2) of the Act, the Plaintiff’s claim is presumed to have been discovered on the date that the loss or damage occurred- namely May 15, 2014. There is no evidence to rebut this presumption.
[21] The two year anniversary of the date of discovery in this case was Sunday May 15, 2016. As a result, the limitation period expired on the next day, May 16, 2016. This claim was not commenced until May 17, 2016 and accordingly, it is statute-barred.
CONCLUSIONS
[22] I grant the defendant’s motion for summary judgment. The Hertz Defendants seeks their costs of defending this action in the amount of $19,350.97 plus disbursements of $650.99. Given that examinations for discovery have not been held and that these costs largely reflect the costs of preparing for and attending this motion, I find that it is fair and reasonable for the Plaintiff to pay costs of $12,000, inclusive of disbursements, within 30 days to the Hertz Defendants.