Court File and Parties
COURT FILE NO.: CV-15-533354 DATE: 20200219 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK DIMECH Plaintiff – and – ASHA OSMAN and KHADIJA MAHAMED Defendants
Counsel: George Bekiaris and Sundeep Singh for the plaintiff Michael Chadwick and Maggie Morgan, for the defendants
HEARD at Toronto: February 14, 2020
F.L. MYERS J:
REASONS FOR DECISION
The Motion
[1] The defendants move for summary judgment dismissing this action. They submit that there is no serious issue requiring a trial on their defence under the Limitations Act, 2002, SO 2002, c 24, Sch B.
[2] On June 22, 2013, the plaintiff was seriously injured in a motor vehicle accident. He claims the defendant’ SUV cut in front of him and collided with his motorcycle. The plaintiff commenced this action on July 29, 2015 which was 37 days after the 2-year anniversary of the accident. The defendants submit that the action was commenced outside the applicable two-year limitation period and must be dismissed.
[3] For the reasons that follow, I find that the defendants have not met their evidentiary burden to establish that there is no serious issue requiring a trial on the limitation period issue. Therefore, the motion must be dismissed. The limitation period will remain an issue for trial.
The Facts
[4] In light of my decision that the limitation period remains an issue that will continue to trial, I will limit my reasons so as not to risk pre-judging the outcome.
[5] The evidence relied upon by the defendants is essentially a recital by counsel of medical records of the plaintiff’s care after the accident and some admissions from the plaintiff’s examination for discovery. The plaintiff took no issue with the admissibility of his medical records through a lawyer’s affidavit. He relied upon the records as well.
[6] As a result of the accident, the plaintiff suffered: undisplaced fractures of his fourth and fifth ribs, a pneumothorax (pierced lung), an oblique extra-articular fracture at the base of the 1st right metacarpal (thumb) with radial angulation, and an avulsion fracture at the ulnar collateral ligament attachment to the base of the 1st proximal phalanx.
[7] Treatment of the plaintiff’s broken thumb required open reduction surgery. A metal plate and hardware had to be implanted in the thumb of his right hand. The plaintiff is right-handed.
[8] The plaintiff saw his family doctor five days after the accident on June 27, 2013. The plaintiff’s wrist was in a cast post-surgery. The plaintiff reported multiple soft tissue injuries. His neck was tender with range of motion. The doctor recorded that the plaintiff was having significant difficulties participating in the activities of daily life. The doctor told him to keep taking pain medication and to follow-up with a plastic surgeon.
[9] On July 4, 2013, the plaintiff retained Mr. Bekiaris as his lawyer in relation to the accident. Mr. Bekiaris wrote to the defendants’ insurance adjuster that day.
[10] On July 5, 2013, the plaintiff attended an appointment with a psychiatrist. He reported a number of concerns including the accident. The doctor prescribed medication for depression and paranoia, ongoing psychotherapy, and indicated that he would provide an assessment in due course.
[11] On July 16, 2013 the plaintiff saw his family doctor again. He reported the same conditions.
[12] July 29, 2013 is the date that is two years before the statement of claim was issued on behalf of the plaintiff. It marks the end of the 37-day “pre-limitation period window” in issue on this motion.
[13] The defendants rely on further medical reports up to two years after the accident. They show pretty much the same injuries continuing to be reported and treated. The plaintiff argues that anything after July 29, 2013 is irrelevant because, as explained below, the issue on this motion is whether the plaintiff reasonably ought to have discovered his cause of action in the 37-day pre-limitation period window between the date of the accident and July 29, 2013.
The Legal Issue
[14] Under s. 4(1) of the Limitations Act, 2002 a person loses the right to sue for a claim two years after she “discovers” the claim. Under s. 5(2) of the Limitations Act, 2002 a plaintiff injured in a car accident will be presumed to have discovered her claim on the day of the accident unless she proves that she did not discover the claim that day and that a reasonable person with her abilities and in her circumstances would not have discovered the claim until a later time.
[15] While one might normally think that being injured in a car accident automatically gives one a claim or the right to sue, that is not necessarily the case. Under s.267.5(5) of the Insurance Act, RSO 1990, c I.8 a person injured in a car accident in Ontario can only sue for non-pecuniary losses if the accident caused her to suffer “permanent serious impairment of an important physical, mental or psychological function.” This is commonly referred to as the “threshold”. If a plaintiff cannot prove that her injuries meet the threshold, her claim for non-pecuniary loss will be dismissed.
[16] While a plaintiff can sue for pecuniary loss without meeting the threshold, case law provides that for the limitation period to commence in Ontario in relation to a motor vehicle accident lawsuit in which both pecuniary and non-pecuniary damages are claimed, the plaintiff must have known or ought reasonably to have known that she could likely meet the threshold so as to have the right to sue. In Ioannidis v. Hawkings, Justice Langdon held that for the two-year limitation period to start running, there must be,
…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.
[17] The question of when the limitation period commences is a question of fact. See: Farhat v Monteanu, 2015 ONSC 2119, at para. 33. It requires a finding of a date when a plaintiff or her lawyer knew or ought reasonably to have known that she had a reasonable chance to prove that she suffered permanent serious impairment of an important physical, mental or psychological function as a result of the car accident.
[18] There is no evidence from Mr. Bekiaris as to whether he, as the plaintiff’s counsel, had formed an opinion during the 37-day pre-limitation period window that the plaintiff had a reasonable chance of persuading a judge that his injuries would meet the threshold. I offered Mr. Bekiaris an opportunity to consider refraining for acting as counsel on this motion both due to this evidentiary issue and in consideration of the fact that if the defendants succeed in having this action dismissed, Mr. Bekiaris could possibly face a claim for having missed the limitation period. He determined to proceed as counsel.
[19] The defendants argue that having a metal plate surgically implanted in the thumb of one’s dominant hand obviously has a reasonable potential to seriously and permanently impair an important function. Moreover, since nothing really changed from the end of the 37-day pre-limitation period window through the next two years until the claim was issued, the plaintiff knew the same things during the 37-day pre-limitation period window as when he issued the claim.
[20] The plaintiff concedes that he knew or ought to have known that his injuries were “serious” during the 37-day pre-limitation period window But, he submits, there was no indication in the medical records from that period that his injuries would be “permanent” or that they would impair an “important…function” permanently. The plaintiff argues that in the 37 days after his accident, he had not even begun rehabilitation. His injuries were still acute. He was being treated. His psychiatrist had deferred providing an assessment. He was seeing his surgeon and family doctor for ongoing treatment. He followed their advice regarding treatment and follow-up. It was too early to know if his pain would become chronic or his injuries permanent.
[21] The plaintiff relies upon Farhat and similar cases that reflect the fact that determining when a claim might reasonably meet the threshold “introduces some slack into the apparent rigidity of the presumption found in s.5(2) of the Limitations Act, 2002.” See: Farhat at para. 39.
[22] With no evidence from counsel, and no evidence of any contemporaneous prognosis from a doctor, I am left to try to determine by inference whether the plaintiff or his counsel ought reasonably to have known that his injuries reasonably could have met the threshold during the 37-day pre-limitation period window.
[23] The defendants offer another basis to decide the motion as well. They remind the court that under s.5(2) of the Limitations Act, 2002, the burden to rebut the presumption that the limitation period commenced on the date of the car accident lies on the plaintiff. Moreover, there is case law that recognizes a positive duty on a plaintiff to make diligent inquiries of her doctors and lawyers rather than sitting back and allowing the limitation period to pass.
[24] In Yasmin v. Alexander, 2016 ONCA 165, the plaintiff was injured in a car accident. Her lawyer made accident benefits claims for her but did not commence a lawsuit in tort. The lawyer said that he was not retained to do so. The plaintiff sued her lawyer for missing the limitation period for her tort claim. To try to mitigate the plaintiff’s loss, the lawyer (or his insurer) asked the plaintiff to commence a tort claim some three-and-a-half years after the car accident. The lawyer had himself added as an intervenor on the defendant’s motion to dismiss the claim. The lawyer argued before me that the claim was not discoverable as one that met the threshold until a date that was within two years of the issuance of the statement of claim.
[25] Like this case, the plaintiff argued that in the period preceding the two years before the action was commenced, none of the medical evidence gave the plaintiff a reason to expect that her injuries might become permanent. The Court of Appeal said that a reasonable, diligent person in the plaintiff’s position would have made inquiries about suing during that 18-month period. At para. 12 of the decision, the Court of Appeal held:
[12] Although prior to February 17, 2010 none of the medical reports indicated that the appellant had a permanent impairment, the reason this is not mentioned in the reports is because neither the appellant nor her counsel sought an opinion with respect to this issue. According to the appellant, she had retained K. to pursue her claim. K., who denied such a retainer, had not taken any steps to investigate whether the appellant’s injuries met the threshold. The evidence suggested no real change in the appellant’s condition since 2008; indeed the appellant’s new counsel based his opinion that she met the threshold on her description of her injuries together with an x-ray report from 2009. The motion judge concluded that it was unreasonable for the appellant to have failed to make the inquiry having regard to her injuries and condition. In these circumstances, there was no error in the motion judge’s finding that the appellant failed to act with diligence to determine whether her injuries were serious and permanent, and that her claim ought reasonably to have been discovered before February 17, 2010.
[26] The defendants argue that with the burden lying on the plaintiff to prove that he could not reasonably have discovered his claim in the 37-day pre-limitation period window, it was incumbent upon him to adduce evidence to show that he or his counsel acted with diligence by asking a doctor for a prognosis. The defendants argue that the plaintiff has failed to prove that he asked any doctor whether his injuries were likely to permanently seriously impair an important function right up to the time that the claim was issued. As such, he cannot meet his burden to show that he acted with diligence as required to rebut the presumption in s. 5(2) of the Limitations Act, 2002.
The Burden of Proof on a Summary Judgment Motion
[27] The defendants rely heavily on the failure of the plaintiff to adduce evidence to meet his burden of proof. They say that if I am in doubt as to whether the plaintiff’s injuries were severe enough to reasonably have been viewed as capable of meeting the threshold during the 37-day pre-limitation period window, then the plaintiff failed to meet his persuasive burden. Plus, the plaintiff failed to inquire and therefore, under Yasmin, he must be held to have failed to prove that he acted with the diligence required to rebut the presumption in s. 5(2) of the Limitations Act, 2002. These are arguments on the ultimate merits of the limitation period question to be sure.
[28] But, before I can consider resolving the limitation period on the merits on a motion for summary judgment, there is a prior step required. A defendant who asks for summary judgment has an evidentiary burden under Rule 20.01(3) of the Rules of Civil Procedure to establish that there is no serious issue requiring a trial under Rule 20.04(1) of the Rules of Civil Procedure. In Sanzone v. Schechter, 2016 ONCA 566, at para. 30, Brown JA explains that “…only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.”
[29] Like the plaintiff, the defendants have adduced no evidence to establish that a reasonable person, in the first 37 days after this type of accident, suffering injuries like those of the plaintiff, would likely know that he or she is likely to meet the threshold. There is no expert prognosis. There is no evidence about whether in the 37-day pre-limitation period window the plaintiff’s counsel ought to have concluded that he had a sufficient body of evidence to provide a reasonable chance of persuading a judge that the plaintiff’s injuries will meet the threshold.
[30] In Hryniak v Mauldin, 2014 SCC 1, the Supreme Court of Canada described the judge’s role in considering a motion for summary judgment as follows:
- On a motion for summary judgment under Rule 20.04 of the Rules of Civil Procedure, 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) of the Rules of Civil Procedure. 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) of the Rules of Civil Procedure. 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, affordability and proportionality in light of the litigation as a whole.
[31] In my view, the defendants have not met their evidentiary burden to allow me to fairly and justly adjudicate the limitation period issue summarily. While there may perhaps be cases where a plaintiff’s injuries are so severe that they can confidently be said to meet the threshold from day one, I cannot tell if this is such a case. The defendants have given me the plaintiff’s medical records. But I have nothing to allow me to draw an inference that the plaintiff or his lawyer ought to have concluded in the first 37 days after the accident that the injuries met or were likely to meet the threshold at some time in future.
[32] Similarly, while I was able to conclude at first instance in Yasmin that the plaintiff had not diligently pursued a claim on the facts, I have nothing to allow me to reach the same conclusion here and now. I do not know if a reasonable patient 37 days into treatment ought to have been asking his doctors for long term prognoses about serious impairment of important functions. Neither is there any evidence before me to let me weigh or conclude whether a reasonable personal injury lawyer ought to have been seeking reports from the doctors about threshold issues within the 37-day pre-limitation period window.
[33] I wish to be clear that I am finding only that I am not yet armed with the evidence required to make the factual assessments asked for by the defendants. Perhaps, after hearing the evidence of some or all of the plaintiff, his treating doctors, his counsel, and appropriate experts, it will be apparent that the threshold issue was or ought to have been understood right away by someone studied in the art. Or, it may be that a 37-day period was just too soon to draw any meaningful conclusions. I simply cannot tell on the record before me. I cannot hold the plaintiff to the presumption in s. 5(2) of the Limitations Act, 2002 as yet because the defendants have not shown that there is no serious issue requiring a trial as to whether the plaintiff can prove that he discovered his threshold claim later. While the plaintiff bears that ultimate persuasive burden of proof on the merits at trial, the defendants bore an evidentiary burden of satisfying me that the outcome was fairly and justly determined on the material before the court. And this they did not do.
The Hryniak Ladder of Summary Proceedings
[34] Under para. 66 of Hryniak as set out above, once I determine that I cannot fairly and justly resolve the issues summarily on the record, I am required to consider whether a resolution is available using the broader procedural powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure.
[35] In my view, I do not have any basis to make the findings of fact required under the expanded powers to find facts under Rule 20.04(2.1) of the Rules of Civil Procedure. There is no competing evidence or opinions for me to prefer. There is no credibility finding to be made on cross-examinations. The medical records alone do not provide me with a sufficient basis to draw the necessary inferences.
[36] Furthermore, this is not a fit case for a mini-trial or other assessment of the limitation period issue separate from the resolution of the merits at trial under Rule 20.04(2.2) of the Rules of Civil Procedure. As the evidence filed on this motion demonstrates, there is almost a complete overlap of the evidence relevant to the limitation period issue and the merits of the plaintiff’s claim. On that basis, viewed from the perspective of the proceeding as a whole, the interests of justice are not advanced by summary proceedings on the limitation period issue alone. The goals of timeliness, affordability, and proportionality are not advanced by seeking to resolve an issue summarily where remaining issues will lead to duplication of evidence and a risk of inconsistent verdicts. Both of these risks are present in this motion. See: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at paras. 36 and 37.
[37] As the defendants have not established that there is no serious issue requiring a trial, the motion must be and is hereby dismissed.
I am not Seized of this Case
[38] Counsel agreed that if the motion were to be dismissed, there is nothing to be gained by me becoming seized of the action to try to provide case management towards a customized resolution process. They agree that the most efficient, affordable, and proportionate manner to resolve this case is for it to continue along the well-understood path to a personal injury trial. In light of my assessment of the litigation as a whole in this case, I agree. Therefore, under para. 78 of Hryniak, this is a case where I should find that I am not seized going forward.
Costs
[39] The plaintiff seeks costs of $11,293 on a partial indemnity basis all-inclusive. The defendants submit that the plaintiff filed his claim late and is obtaining an indulgence by being allowed to continue. As such, they submit that their motion was reasonable and they should not be required to pay costs. I disagree. A successful party may be denied costs where the court exercises a discretionary authority to relieve her from the consequences of her own procedural default. That is not the case here. I have not exercised a discretionary authority to relieve the plaintiff from the consequences of a default. The limitation period issue remains for trial and admits of no discretionary relief. Rather, in this motion, the defendants claimed and failed to establish that there was no serious issue requiring a trial. The plaintiff incurred costs as a result and is presumptively entitled to partial indemnity. The defendants shall pay costs to the plaintiff of $11,000 on a partial indemnity basis all-in.