Reasons for Decision

(Motion for Summary Judgment)

Court File No.: CV-21-00000290-0000
Date: 2025-02-25
Ontario Superior Court of Justice
Between:
Joanne Lloyd, Plaintiff
– and –
William Baker, Defendant/Moving Party

Appearances:
Rebecca Patten, for the Plaintiff
Stefanie Pereira and Michelle Davis, for the Defendant/Moving Party

Heard at Belleville: February 3, 2025
Justice: Robert Tranmer

Introduction

[1] The action arises out of a motor vehicle collision which occurred on November 24, 2015.

[2] The defendant moves for summary judgment dismissing the action on the basis that it was commenced after the limitation period had expired.

Brief Facts

[3] The plaintiff was born on December 18, 1972. At the time of the collision, she was employed as a PSW.

[4] On April 15, 2015, that is approximately seven months prior to the motor vehicle collision, she was injured in the workplace and suffered a concussion type injury from two blows to the head.

[5] She was scheduled to return to work on November 26, 2015, that is two days after the collision occurred. She stated on discovery that “my work concussion had got better. That’s why I got cleared to go back to work”.

[6] Because of the intervening motor vehicle collision, her actual return to work was in January 2016.

[7] She did not return back to full-time hours. And she did not work overtime or premium shifts. However, she suffered no loss of income until 2020.

[8] The evidence is that she was treated by her family doctors for both injuries and was compliant with their treatments and referrals. Her symptoms persisted. There were some improvements over time.

[9] At the request of her employer, she consulted with a clinical psychologist whose area of practice was in clinical neuropsychology, Dr. Day. She attended for clinical examination by him in November 2019 and he filed his report dated March 12, 2020. On July 21, 2020, he met with the plaintiff to discuss his report and diagnoses.

[10] Subsequent to that meeting, she retained a lawyer who commenced this litigation by way of a statement of claim issued November 8, 2021.

The Issue

[11] The defendant submits that the limitation period for commencing this action began to run on the date of the collision. In the alternative, the defendant submits that, at the latest, the limitation period began to run on March 4, 2019 when the plaintiff was referred by her family doctor to Providence Continuing Care Centre (PCCC) for the acquired brain injury clinic as per the recommendation of the neurologist, Dr. Riopelle, which had been made on July 5, 2018. At that time, Dr. Riopelle was of the opinion that it was premature to offer a prognosis without MRI imaging of her brain and cervical cord.

[12] It is the plaintiff’s submission that the limitation period did not begin to run until the feedback session with Dr. Day where he explained his diagnoses and that she had suffered second impact syndrome which was likely contributing to her prolonged recovery and more complicated response to her injuries. He diagnosed her with mild neurocognitive disorder due to a traumatic brain injury, adjustment disorder, and somatic symptom disorder.

Legal Principles

[13] The parties are agreed on the applicable law with respect to motions for summary judgment.

[14] The parties agree that sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, are applicable. There is a presumption that the limitation period began on the date of the collision, unless the plaintiff proves otherwise.

[15] The parties agree that the Insurance Act, R.S.O. 1990, c. I.8, sections 267.5(3) and (5) bar liability for healthcare expenses or nonpecuniary loss resulting from bodily injury arising directly or indirectly from the use or operation of an automobile unless the injured person has sustained permanent serious impairment of an important physical, mental or psychological function.

[16] Damages are sustained and a cause of action established when it is reasonably discoverable that the injury meets the legal threshold of “permanent serious impairment” under the Insurance Act. (Peixeiro v. Haberman, [1997] 3 SCR 549, para 44). The plaintiff does not need to know the extent of the injuries to start the limitation clock; however, no cause of action exists until sufficient severity of injury exists. (para. 30)

[17] The question is not whether the plaintiff believes that her injury meets the criteria but whether there is a sufficient body of evidence available to be placed before a judge that, in counsel’s opinion, there is a reasonable chance of persuading a judge, on the balance of probabilities, that the injury qualifies under the threshold. When such a body of material has been accumulated, then and only then should the limitation begin to run. The court must afford a degree of latitude to a plaintiff in making this very individual and complicated determination. (Ioannidis v. Hawkings, [1998] O.J. No. 1421 (Gen. Div)). The court also noted that determination of whether a claim meets the threshold, or not, is one about which reasonable people may often disagree.

[18] In Mapletoft v. Service, para. 36, the court stated that it could not accept the argument that it is not open to a defendant to deny that injuries meet the threshold test while simultaneously arguing that the limitation period has expired. The court noted that the defendant in that case conceded that it may have trouble riding in both of these directions at trial, but it is entitled to plead alternative and potentially contradictory defences. The court noted that discoverability cannot mean that the limitation period does not run until the plaintiff knows for sure that the injury crosses the threshold.

[19] Another applicable principle is that plaintiffs are expected to act diligently and not sleep on their rights, (M. (K.) v. M. (H.), [1992] 3 S.C.R. 6); Fennell v. Deol, 2016 ONCA 249.

[20] I have taken into consideration that the deductible for cases of this nature in 2016 was $36,000 and in 2017 was approximately $37,300.

[21] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the court stated that the plaintiff does not need to know the exact extent or type of harm it has suffered or the precise cause of its injury in order for limitation period to run. (Para. 46). A plausible inference of liability is enough. (Para. 47).

[22] The court in Everding v. Skrijel, 2010 ONCA 437 put the principle this way:

[11] … Clearly, it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have a substantial chance to succeed in recovering a judgment for damages. These provisions of the Insurance Act … allows actions to proceed where the injuries are sufficiently significant that a substantial monetary award is likely to be recovered. …

[23] Justice Perell in Pereira v. Contardo, 2014 ONSC 6894 cited the decision of Belobaba J: “It is one thing to know you have constant pain. It is quite another thing to be told that the pain has been medically diagnosed as chronic pain that could clear the ‘permanent and serious’ threshold under the Insurance Act”. To the same effect is the decision in Hurley v. Punitharanjan, 2015 ONSC 7337 at para. 29, “None of the medical reports before the motion judge opines that the plaintiff’s injuries constituted, on a balance of probabilities, a serious and permanent injury such that it met the requirements… of the Insurance Act”. Para. 31.

The Evidence

[24] The moving party reviewed the medical records and employment forms of the plaintiff. These demonstrate regular attendances by the plaintiff for assessment and treatments.

[25] It is significant that all of these forms referred to her injuries as post concussion syndrome or concussion.

[26] Except for 1. the ambulance call report: head/brain trauma; and 2. a hospital visit on September 8, 2016 which was for a pain in the back occurring while at work, and the record for which had written “brain injury” and under Past Medical History recircled “IBS LT. Sided Brain Injury 2015,” there is no reference to a brain injury until Dr. Day’s diagnosis of “mild neurocognitive disorder due to traumatic brain injury (repeated concussions, the second while still recovering from the first, with persistent posting concussion symptoms including poor stamina.”) It is his examination and report and feedback that first informs the plaintiff that second impact syndrome is likely contributing to prolonged recovery and more complicated response to her injuries. He reports that most concussions would be expected to resolve, and symptoms diminish within a matter of months. Indeed, that was the plaintiff’s experience, from her workplace injuries.

[27] The forms and medical records indicate “indefinite” with respect to duration of restrictions, or “indeterminate” or “unknown.”

[28] The family doctor indicated on November 1, 2016 that the expected date of return to work full time was unknown and that the prognosis is guarded or full recovery.

[29] The medical record dated December 1, 2016 indicates that the patient was counselled with respect to a potential prognosis and never reaching 100% or previous baseline. The reference is to post concussion syndrome.

[30] In a note dated January 5, 2017, neurologist, Dr. Riopelle, was of the opinion that she should be out of the workforce and supported until such time as her migraine symptomology is improved. This same doctor, on July 5, 2018, reported mild to moderate concussion with persistent symptoms but reported that it was premature to give a prognosis for potential improvement and recommended MRI imaging of the brain and cervical spinal cord.

[31] On January 10, 2018, the family doctor reported that there were no pending specialist referrals, that the expected date of return to work full time was unsure, and that the medical prognosis towards full recovery was guarded.

[32] On March 13, 2018, the family doctor reported that a sudden cure of her post concussion syndrome is unlikely to happen. A note from the family doctor dated March 21, 2018 again reported that expected date of return to work full time was unsure and a medical prognosis towards full recovery was guarded.

[33] Dr. Riopelle in his note of July 5, 2018, referenced above, also notes that the plaintiff was diagnosed with post concussion syndrome and had attended post concussion rehab at Providence Continuing Care. He listed the persistent symptoms including work restrictions.

[34] The results of the MRI are dated January 20, 2019, and counsel are agreed that it showed no significant findings with respect to the brain or spinal cord attributable to the motor vehicle collision.

[35] On March 4, 2019, the family doctor reported that he would refer the plaintiff to PCCC acquired brain injury clinic. Upon doing so, he was informed that there was a three year wait list.

[36] On referral, the plaintiff was examined by Dr. Day in November 2019. His written report was completed in March 2020, and he had a feedback session with her in July 2020.

[37] It was subsequent to this feedback session that the plaintiff hired a lawyer and the statement of claim was issued.

[38] It was not until March 2022 that the plaintiff’s employer put her on permanent part-time employment. She had not suffered a loss of income until 2020.

[39] The defendant pointed out that in the course of her examination for discovery and cross-examination on this motion, the plaintiff attributed her persistent symptoms and concerning incidents to the motor vehicle collision. Counsel for the plaintiff responds that this is with the benefit of hindsight which is not the relevant timeframe to be considered on the motion. I agree with plaintiff’s counsel on this point.

Analysis

[40] I find that the plaintiff exercised due diligence, attending for regular consultation and treatment and compliant with directions from her medical caregivers.

[41] I find that the plaintiff reasonably expected to recover from what she understood to be concussion injuries and symptoms just like she had from the workplace concussion. Indeed Dr. Day confirms that that was a reasonable expectation.

[42] The plaintiff swears that Dr. Day was the first doctor who explained to her that she had a traumatic brain injury. That is borne out by the record. She swore that her understanding is that a traumatic brain injury is more severe than a concussion. She swore that she always thought that a concussion was an injury that would resolve. Indeed, that was her experience from her workplace concussion. She swore that she didn’t realize that her injury from the motor vehicle collision was medically complicated by the previous workplace concussion until Dr. Day explained and pointed it out to her. She also pointed out that Dr. Day diagnosed psychological impairments including adjustment disorder and somatic symptom. This is borne out by the record. I acknowledge that Dr. Day did not use the word, “permanent.”

[43] I accept her evidence that this triggered the plaintiff retaining a law firm in connection with the motor vehicle collision for the first time. There is evidence that two law firms had previously represented her in respect of WSIB.

[44] I find that none of the medical reports and forms opined that the plaintiff’s motor vehicle collision injuries constituted, on a balance of probabilities, a serious and permanent injury such that it met the threshold criteria.

[45] In my view, the referral to the PCCC acquired brain injury clinic did not start the limitation period to run.

[46] I find that there was not a sufficient body of evidence for the plaintiff to have known that there was a reasonable chance of persuading a judge, on the balance of probabilities, that her injuries met the threshold before the feedback session with Dr. Day. The court must afford a degree of latitude to a plaintiff in making that determination. I find that it was only at that point that she could plausibly infer that she had a substantial chance to succeed in recovering a judgment for damages.

[47] As stated in the cases, it is one thing for the plaintiff to suffer from symptoms that her medical experts attribute to post concussion syndrome, from which she had recovered previously, and a completely different thing to be told by a specialist medical practitioner to whom she was referred that she was suffering from a mild neurocognitive disorder due to traumatic brain injury resulting from repeated concussions with the effect of second impact syndrome contributing to her prolonged recovery and more complicated response to her injuries, and in addition, from two psychological impairments.

[48] In my view, this case is distinguishable from Sorita v. Toronto Transit Commission, 2016 ONSC 2508. In the present case, I find that Dr. Day does provide new information to the plaintiff and does contain a detailed analysis of her ongoing symptoms including the reason why that is the case.

[49] I find that it was not until July 2020 that there was a substantial body of evidence that could have been used to overcome the Insurance Act threshold and that this action was commenced within the applicable limitation time.

[50] I find that the plaintiff has met the onus on her to overcome the presumption.

Decision

[51] For these reasons, and despite the very capable submissions made on behalf of the defendant, this motion for summary judgment is dismissed.

[52] I thank counsel on both sides for their excellent and focused written and oral submissions.

[53] Counsel advised that they have agreed upon the costs of this motion and therefore, I make no order in that regard.

Robert Tranmer
Released: February 25, 2025