r v. McCartney, 2015 ONSC 2119

Farhat v. Monteanu Ontario Reports Ontario Superior Court of Justice, Perell J. April 1, 2015 125 O.R. (3d) 267 | 2015 ONSC 2119 Case

Summary Limitations — Discoverability — Plaintiff's lawyer notifying defendant eight days after motor vehicle accident that plaintiff hadsuffered "serious injuries" — Plaintiff commencing personal injury action two years and 32 days after accident — Plaintiffadducing some evidence on defendant's

summary judgment motion that lawyer's letter was sent to protect claim forprejudgment interest in event that plaintiff's injuries were later diagnosed as meeting threshold in s. 267.5 of Insurance Act andthat plaintiff did not become aware that his injuries met threshold until almost one year after accident — Plaintiff rebuttingpresumption in s. 5(2) of Limitations Act that he discovered claim on date of accident — Insurance Act, R.S.O. 1990, c. I.8, s.267.5 — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The plaintiff was injured when his vehicle was rear-ended by the defendant's vehicle on May 18, 2006.

Eight days later, the plaintiff'slawyer wrote to the defendant and stated that the plaintiff had sustained "serious injuries" as a result of the accident. Neither the motorvehicle accident report nor the plaintiff's police statement of witness referred to any injuries. The plaintiff commenced a personal injuryaction on June 19, 2008. The defendant moved for

summary judgment dismissing the action as statute-barred. The plaintiff brought apartial

summary judgment motion with the intention of defeating the limitation period defence. [page268] Held, the plaintiff's motion should be granted; the defendant's motion should be dismissed. The plaintiff adduced some evidence that his lawyer's letter to the defendant was sent to protect a claim for prejudgment interest in theevent that the plaintiff's injuries were later diagnosed as meeting the threshold in s. 267.5 of the Insurance Act and that the plaintiff didnot become aware that his injuries met the threshold until April 2007.

The plaintiff had rebutted the presumption in s. 5(2) of theLimitations Act that he discovered the claim on the date of the accident. He was not precluded from doing so by the statement in hislawyer's letter that his injuries were serious. The action was not statute-barred. The defendant's argument that the plaintiff did not have a threshold claim and thus could not be found to have "discovered" the claim inApril 2007 amounted to an improper attempt, through a

summary judgment motion, to have a pre-trial motion to determine whether theplaintiff's injuries met the threshold. Ioannidis v. Hawkings (1998), (ON SC), 39 O.R. (3d) 427, [1998] O.J. No. 1421, 59 O.T.C. 285, 3 C.C.L.I. (3d)232, 37 M.V.R. (3d) 17, 78 A.C.W.S. (3d) 798 (Gen. Div.), consd Other cases referred to Bhaduria v. Persaud (1998), (ON SC), 40 O.R. (3d) 140, [1998] O.J. No. 1943, 62 O.T.C. 289, 79 A.C.W.S. (3d)626 (Gen. Div.); Bolton Oak Inc. v. McColl-Frontenac Inc., [2011] O.J. No. 4953, 2011 ONSC 6567, 64 C.E.L.R. (3d) 239, 209A.C.W.S. (3d) 812 (S.C.J.); Chan v. Abdo, [2013] O.J.

No. 2447, 2013 ONSC 3017 (S.C.J.); Durham (Regional Municipality) v. Oshawa(City) (2012), 113 O.R. (3d) 54, [2012] O.J. No. 5118, 2012 ONSC 5803, 4 M.P.L.R. (5th) 160, 221 A.C.W.S. (3d) 1002 (S.C.J.);Everding v. Skrijel (2010), 100 O.R. (3d) 641, [2010] O.J. No. 2534, 2010 ONCA 437, [2010] I.L.R. I-5018, 263 O.A.C. 130, 321D.L.R. (4th) 550, 190 A.C.W.S. (3d) 591; Fuller v. McCartney (2003), (ON SC), 63 O.R. (3d) 393, [2003] O.J. No.545, 34 M.V.R. (4th) 198, 120 A.C.W.S. (3d) 225 (S.C.J.); Gaudet v. Levy (1984), (ON SC), 47 O.R. (2d) 577, [1984]O.J.

No. 3312, 11 D.L.R. (4th) 721, 46 C.P.C. 62, 27 A.C.W.S. (2d) 448 (H.C.J.); Hoffman v. Jekel, [2011] O.J. No. 879, 2011 ONSC1324, 198 A.C.W.S. (3d) 668 (S.C.J.); Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, 276 O.A.C.75, 198 A.C.W.S. (3d) 333; McSween v. Louis, (ON CA), [2000] O.J. No. 2076, 187 D.L.R. (4th) 446, 132 O.A.C.

304, 97 A.C.W.S. (3d) 327 (C.A.); Phung v. Mais, [2012] O.J. No. 5990, 2012 ONSC 7153, 17 C.C.L.I. (5th) 241, 224 A.C.W.S. (3d)297 (S.C.J.); Simonelli v. Halifax Insurance Co., [2002] O.J. No. 1354, 38 C.C.L.I. (3d) 154, 113 A.C.W.S. (3d) 703 (S.C.J.); Soper v.Southcott (1998), (ON CA), 39 O.R. (3d) 737, [1998] O.J. No. 2799, 111 O.A.C. 339, 43 C.C.L.T. (2d) 90, 80A.C.W.S. (3d) 1087 (C.A.); Voisin v. Hartin, [2000] O.J. No. 5009, [2000] O.T.C. 931 (S.C.J.); Yelda v. Vu, [2013] O.J. No. 3683, 2013ONSC 4973, [2013] I.L.R. I-5484 (S.C.J.) Statutes referred to Insurance Act, R.S.O. 1990, c.

I.8, s. 267.5, (5), (b), (12) [as am.], (15) [as am.] Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.],

(2) MOTION by the defendant for

summary judgment dismissing an action; MOTION by the plaintiff for partial

summary judgment. Alan Honner, for plaintiff. Murray A. MacDonald, for defendant. [page269] PERELL J.: — A. Introduction [1] The plaintiff, Syed Farhat, sues the defendant, Roxana Monteanu, for damages for his non-pecuniary injuries from a motor vehicleaccident. Relying on the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act"), Ms. Monteanu pleads that his claim is statute-barred. The trial is scheduled for January 25, 2016. [2] Mr. Farhat now brings a partial

summary judgment motion with the purpose of defeating Ms. Monteanu's limitation period defence.Advancing two original arguments about the operation of the Act, Ms. Monteanu brings a cross-motion for a

summary judgmentdismissing Mr. Farhat's action as statute-barred. [3] There was no controversy between the parties that the issue about whether Mr. Farhat's claim is statute-barred can be resolved oneway or the other by

summary judgment. [4] For the reasons that follow, I grant Mr. Farhat's partial

summary judgment motion, and I dismiss Ms. Monteanu's

summary judgmentmotion. Mr. Farhat's claim is not statute-barred, and his action should proceed to trial in the normal course. B. Factual and Procedural Background [5] The evidence for the respective

summary judgment motions consisted of (

a) the affidavit evidence of Jacqueline J. Boyd, a senior lawclerk with the firm of Mazin & Associates Professional Corporation, the lawyers for Mr. Farhat; and (

b) the affidavit evidence ofMichael V. Maiola, an associate lawyer of the law firm Withrow & Associates, the lawyers for Ms. Monteanu. [6] I take the following from the affidavit and documentary evidence. [7] On May 18, 2006, Mr. Farhat was sitting in a parked van when it was struck by a vehicle driven by Ms. Monteanu. After thecollision, he immediately got out of the van to examine the damage. The motor vehicle accident report signed May 20, 2006 by theinvestigating police officer does not refer to any injuries arising from the motor vehicle accident. Mr.

Farhat's police statement of witnessdoes not mention any injuries. [8] Within eight days of the accident, Mr. Farhat retained Mazin & Associates Professional Corporation to act for him for his no-faultbenefit and tort claims. [9] On May 26, 2006, Mr. Mazin wrote Ms. Monteanu and stated that Mr. Farhat had sustained "serious injuries" as a result of theaccident. The full text of the letter is as follows: [page270] Please be advised that I have been retained by the above named client with respect to a motor vehicle accident he was involved in.

OnMay 18, 2006, my client was involved in a motor vehicle accident, in which you, as the driver of the offending vehicle were at fault. As aresult, he has sustained serious injuries. Please promptly advise your insurance company of this letter so that we may attempt to resolve this matter. Govern yourself accordingly. [10] In her affidavit, Ms. Boyd deposes that she was advised by Mr. Mazin that the purpose of the letter was to protect Mr. Farhat's claimfor prejudgment interest "in the event that [his] injuries were later diagnosed as having reached the threshold of being both permanent

and serious". [ 11 ] After the accident, Mr. Farhat attended massage and physiotherapy treatments on 50 occasions between May 26, 2006 and May 7, 2007. [ 12 ] Mr. Farhat attended laser therapy four times between May 20, 2006 and July 5, 2006. [ 13 ] Mr. Farhat had no physical treatment between May 18, 2007 and May 18, 2008, the second anniversary of the car accident. Although he has had numerous visits with his family physician, he has not sought physical treatment for almost eight years. [ 14 ] Ms. Boyd deposes in her affidavit that on the basis of Mr.

Farhat's personal knowledge and the documents prepared by his service provider, he was not aware that the aggregate of his injuries constituted a permanent and serious impairment of an important bodily function until April 2007. [ 15 ] In her affidavit, Ms. Boyd deposes that in April 2007, Mr. Farhat was referred for nerve conduction study on his left hand and left leg due to pain and numbness. She says that the study results were interpreted by Dr. M.

Zaillan who, in a report dated June 16, 2007, reported neurological abnormalities and nerve damage that required further investigation. [ 16 ] Also in April 2007, Mr. Farhat underwent a neurological examination conducted by Dr. A. Mossanen, a neurologist. Ms. Boyd deposes that Dr. Mossanen reported numbness and a loss of power in Mr. Farhat's left hand. Dr. Mossanen's diagnosis was that Mr. Farhat has a non-dermatoromal sensory deficit in the left upper and lower extremities. [ 17 ] It is Ms. Boyd's belief that Mr.

Farhat was not aware of the severity of his injuries until these neurological investigations were completed in April 2007, and only then did Mr. Farhat realize the severity and permanent nature of his injuries. [page271] [ 18 ] Mr. Farhat commenced his action against Ms. Monteanu on June 19, 2008. [ 19 ] Between October 19, 2005 and December 1, 2014, Mr. Farhat visited his family physician 46 times. [ 20 ] The doctor's notes indicate that Mr. Farhat first mentioned the motor vehicle accident on his 12th post-accident attendance on June 2, 2008. Mr.

Farhat only mentioned back pain to his family doctor on September 18, 2008, attendance number 14, and on August 13, 2014, attendance number 44. The plaintiff first mentioned memory loss to his family physician on September 17, 2009, three years and four months after the accident. There is no reference in the notes to the motor vehicle accident or motor vehicle accident complaints during 27 visits to the family doctor. C. Discussion and Analysis [ 21 ] Mr. Farhat brought his personal injury negligence action two years and 32 days after the date that he was allegedly injured while sitting in a parked van.

The van was struck by a vehicle driven by Ms. Monteanu. Mr. Farhat makes no claim for pecuniary damages. In order for him to have a claim for non-pecuniary loss, he must satisfy the pre-conditions of s. 267.5(5) (

b) of the Insurance Act , R.S.O. 1990, c. I.8, the so-called "threshold" for a non-pecuniary claim. [ 22 ] Ms. Monteanu makes two novel arguments that Mr. Farhat's non-pecuniary loss claim is statute-barred for being late. In order to understand Ms. Monteanu's two arguments, it is necessary to set out s. 267.5(5) , (12) and (15) of the Insurance Act and ss. 4 and 5 of the Limitations Act, 2002 , which state: INSURANCE ACT 267.5 . . . Non-pecuniary loss

(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. . . . . . [page272] Motion to determine if threshold met; non-pecuniary loss

(12) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre- trial conference, determine for the purpose of subsections (3) and (5) whether, 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. . . . . . Determination at trial; non-pecuniary loss

(15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsections (3) and (5) whether, 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. . . . . . LIMITATIONS ACT, 2002 BASIC LIMITATION PERIOD Basic limitation period 4. 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 5(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 ). [page273] 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. [ 23 ] Ms. Monteanu's first argument is that pursuant to s. 5(2) of the Limitations Act, 2002 , there is a presumption that a motor vehicle accident claim is discovered at the time when the accident occurred, and she argues that this presumption has not been rebutted. She submits that in the circumstances of the case at bar, the presumption that the claim has been discovered cannot be rebutted when, eight days after the accident, Mr. Farhat's lawyer, in correspondence to Ms. Monteanu, indicated that Mr.

Farhat's injuries were serious. [ 24 ] With this early knowledge of seriousness, Ms. Monteanu submits that the presumption cannot be rebutted, unless Mr. Farhat's lawyer provides direct evidence that he delayed issuing the claim within two years because he wanted medical confirmation that the serious injury was a permanent injury. No such evidence was presented in the case at bar. Rather, Mr. Farhat relied on the evidence of Ms. Boyd, a senior law clerk employed by his lawyer, instead of providing his lawyer's evidence. Ms.

Monteanu submits, therefore, that the presumption in s. 5(2) has not been rebutted. [ 25 ] Ms. Monteanu's first argument is set out in paras. 30 to 34 of her factum, which state: 30. Paragraph 11 of the plaintiff's supporting affidavit of senior law clerk Ms. Boyd appears to suggest the plaintiff became aware of the severity and permanent nature of the injuries as a result of the neurological investigations in April 2007. It is respectfully submitted that neurological investigations in April 2007do not refer to the "seriousness" or "permanence" of the alleged injuries. 31.

It is respectfully submitted that there is no direct evidence of when the plaintiff became aware of the neurological investigations.

32. It is respectfully submitted that the plaintiff has not provided information or documentation with respect to when counsel wasretained to pursue a tort claim to when counsel were instructed to commence an action.

Counsel for the plaintiff has not produceddocumentation with respect to who drafted the statement of claim, when instructions were received to draft the statement of claim, whenthe first draft of the statement of claim was completed, when the statement of claim was finalized, and when people were instructed toattend the courthouse to issue the statement of claim, and more generally provide documents related to the process of obtaininginstructions from the plaintiff to pursue the tort claim. 33.

It is respectfully submitted that the law relating to the discoverability of threshold injuries ought not to a method for counsel toachieve indirectly what they cannot do directly. [page274] 34.

When counsel are retained within days of an accident to pursue a tort claim and a claim is not commenced within the statutorylimitation period, counsel ought have an onus to prove that the limitation period was considered and a conscious decision was made notto commence an action; a procedure was in place to review the decision at some reasonable point in the future; a decision was madearound the time the additional information was obtained; and counsel moved expeditiously when the additional evidence was obtained. [26] There is no case law that supports this novel argument by Ms.

Monteanu, and the case law about the effect of the threshold on therunning of limitation periods stands strongly against her argument. [27] There is no onus on a plaintiff to prove or show (

a) that the limitation period was considered and a conscious decision made not tocommence an action; (

b) that a procedure was put in place to review the conscious decision at some reasonable point in the future; and(

c) that a decision was made when additional information was obtained and counsel moved expeditiously. [28] Whether all this demonstration of what the lawyer must show "ought" to be the case is neither here nor there, because what "is" thecase under the law about the running of limitation periods is that when an action is not commenced within two years after the accidentthe only onus on the plaintiff is to show that he or she could not have discovered the case during the period of delay before commencingthe action, which in the case at bar is just 32 days. [29] Mr.

Farhat's claim is apparently based on chronic pain becoming a permanent serious impairment of an important physical, mentalor psychological function. Much to the dismay of insurance companies of defendants, almost invariably, it will take several months todetermine whether ongoing pain suffered as a result of an accident is a permanent serious impairment.

It will typically, almost invariably,be the case that a plaintiff with only a chronic pain claim will not know that the claim surpasses the Insurance Act threshold untilsometime after the date of the accident. [30] In the circumstances of the case at bar, I do not have to determine when precisely Mr. Farhat discovered or ought to have discoveredthat his claim might surpass the threshold. Ms.

Boyd's evidence, which is more argument than evidence and which suffers from severaldegrees of hearsay, suggests that discovery occurred in April 2007, which would extend the running of the limitation period into 2009. [31] Given the statutory presumption that a limitation period begins to run from the date of the accident, the onus is on the plaintiff topersuade the court that the seriousness of his or her [page275] injury was not discoverable within the applicable limitation period and theplaintiff must also persuade the court that he or she acted with due diligence to discover if there was a cause of action: Yelda v.

Vu,[2013] O.J. No. 3683, 2013 ONSC 4973 (S.C.J.), at paras. 29-30. [32] In Everding v. Skrijel (2010), 100 O.R. (3d) 641, [2010] O.J. No. 2534, 2010 ONCA 437, approving Voisin v.

Hartin, [2000] O.J.No. 5009, [2000] O.T.C. 931 (S.C.J.), the Court of Appeal held that in applying the discoverability principle of the Limitations Act,2002, the court should consider the threshold requirements of the Insurance Act, and the Court of Appeal held that a plaintiff will nothave discovered his or her claim before he or she knows they have a substantial chance to succeed in recovering a judgment for damages.A person cannot be expected to commence an action before he or she knows that the necessary elements as set out in the legislation canbe established on the evidence: Hoffman v. Jekel, [2011] O.J.

No. 879, 2011 ONSC 1324 (S.C.J.), at para. 9. [33] In Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, the Ontario Court of Appeal stated, at para. 23: Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospectiveplaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim hasbeen "discovered", and the limitation period begins to run: see Soper v. Southcott (1998), (ON CA), 39 O.R. (3d) 737(C.A.) and McSween v.

Louis (2000), (ON CA), 132 O.A.C. 304 (C.A.). [34] When a limitation period defence is raised, the onus is on the plaintiff to show that its claim is not statute-barred and that it behavedas a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitationissue: Durham (Regional Municipality) v. Oshawa (City) (2012), 113 O.R. (3d) 54, [2012] O.J. No. 5118, 2012 ONSC 5803 (S.C.J.), atparas. 35-41; Bolton Oak Inc. v. McColl-Frontenac Inc., [2011] O.J.

No. 4953, 2011 ONSC 6567 (S.C.J.), at paras. 12-14; Bhaduria v.Persaud (1998), (ON SC), 40 O.R. (3d) 140, [1998] O.J. No. 1943 (Gen. Div.). The limitation period runs fromwhen the prospective plaintiff has, or ought to have had, knowledge of a potential claim and the question is whether the prospectiveplaintiff knows enough facts to base a cause of action against the defendant, and, if so, then the claim has been discovered and thelimitation period begins to run: Lawless v. Anderson, supra, at para. 23; Soper v. Southcott (1998), (ON CA), 39 O.R.(3d) 737, [1998] O.J. No. 2799 (C.A.); McSween v.

Louis, (ON CA), [2000] O.J. No. 2076, 187 D.L.R. (4th) 446(C.A.); Gaudet v. Levy (1984), (ON SC), 47 O.R. (2d) 577, [1984] O.J. No. 3312 (H.C.J.), at p. 582 O.R. [page276] [35] In some limitation period

summary judgment motions, it may be necessary to demonstrate the time at which a plaintiff actingreasonably knew about his or her claim, but this motion is not one of those motions. For the purposes of the motions in the case at bar,for Mr. Farhat to rebut the presumption found in s. 5(2) of the Limitations Act, he need only show that he could not have discovered hischronic pain claim during the period between the date of the accident, May 18, 2006 and June 18, 2006 (two years before the date theaction was commenced), which I am satisfied he has done. [36] Perhaps ironically, because s. 267.5(5) of the Insurance Act was introduced to eliminate minor personal injury claims, its effect has

also been to protect such claims from the running of a limitation period for a period of time commensurate with how long it would take areasonable person with the abilities and in the circumstances of the plaintiff to have discovered that the threshold for a claim has beensurpassed. [37] A simple comparison between Mr. Farhat's automobile accident claim and a slip and fall case demonstrates why the operation of s.267.5 on limitation periods rankles the insurance defence bar. Visualize, if Mr.

Farhat had gotten out of his parked van and slipped andfell on a sidewalk in disrepair, there would be no waiting for a medical report and the limitation period for his occupier's liability claimwould immediately have commenced to run. [38] The law, however, for the discovery of slip and fall claims is not affected by s. 267.5 of the Insurance Act.

Section 267.5, however,does influence the running of limitation periods for motor vehicle accident non-pecuniary claims. [39] No doubt, much to the chagrin of the defence bar, s. 267.5(5) of the Insurance Act introduces some slack into the apparent rigidityof the presumption found in s. 5(2) of the Limitations Act, 2002. A plaintiff, and in some instances his or her negligent lawyer, can takecomfort from this slack because the limitation period only begins to run when a sufficient body of information is available to determinewhether the plaintiff has a claim that may meet the threshold.

In this regard, I adopt the observations of Justice Langdon in Ioannidis v.Hawkings (1998), (ON SC), 39 O.R. (3d) 427, [1998] O.J. No. 1421 (Gen. Div.), at pp. 433-34 O.R., where hestated: [N]o one can seriously argue that the decision whether a particular injury meets the statutory criteria is an easy one or, perhaps moreimportant, that it will be easy to predict the outcome of a motion to dismiss a claim which the defendant asserts is unworthy. Even insuch a motion, the onus is upon the plaintiff to demonstrate that his or her injuries meet the statutory criteria.

When one is seeking toapply the discoverability rule to the plaintiff in [page277] a case such as this, it behooves the court to grant a degree of latitude to aplaintiff before declaring that the limitation period has begun to run. . . . In practical terms, the question is not whether the plaintiffbelieves that her injury meets the criteria but whether there is a sufficient body of evidence available to be placed before a judge that, incounsel's opinion, has a reasonable chance of persuading a judge, on the balance of probabilities that the injury qualifies.

When such abody of material has been accumulated, then and only then should the limitation begin to run. This is not to say that the plaintiff isentitled to wait until he or she has an overwhelming case. It is only to say that the court must afford a degree of latitude to a plaintiff inmaking this very individual and complicated determination. [40] Ioannidis v. Hawkings, supra, was applied in Fuller v. McCartney (2003), (ON SC), 63 O.R. (3d) 393, [2003]O.J. No. 545 (S.C.J.); Simonelli v. Halifax Insurance Co., [2002] O.J. No. 1354, 38 C.C.L.I. (3d) 154 (S.C.J.); Hoffman v. Jekel, supra;Phung v. Mais, [2012] O.J.

No. 5990, 2012 ONSC 7153 (S.C.J.); and Chan v. Abdo, [2013] O.J. No. 2447, 2013 ONSC 3017 (S.C.J.). [41] In Phung v. Mais, supra, Justice Morgan noted the problem of prematurity posed by the discoverability rule where there is no causeof action until the threshold conditions could be satisfied. He stated, at para. 14: I am conscious of the difficulties that the "discoverability" rule poses for a plaintiff and his counsel. As has been noted in other cases, "ifthe plaintiff issues suit prematurely, he or she may be faced with an almost immediate motion to dismiss the claim . . .

On the other hand,the longer the plaintiff waits, the greater is the risk that he or she will wait too long and the action will be statute-barred." Ioannidis v.Hawkings (1998), (ON SC), 39 OR (3d) 427, at para. 35 (SCJ). Plaintiff and his counsel must be confident ofcredibly "assessing the medical and other evidence" as to whether the injured person has sustained permanent impairment, whether theimpaired bodily function is an important one, and whether the impairment is a serious one. Meyer v. Bright (1993), (ON CA), 15 OR (3d) 129, at 138 (Ont CA). [42] In Chan v.

Abdo, Justice Rady noted that the solicitor's admitted inadvertence in commencing a claim was not determinative ofwhether the claim was statute-barred. She stated, at paras. 36-37: The uncontroverted evidence is that Ms. Chan did not seek medical attention until six days after the accident. At that time, her familyphysician did not suspect a serious and permanent injury or that her patient might not recover. The fact that Ms. Chan was concernedabout her injuries immediately after the accident (as her examination for discovery evidence might be interpreted) is not sufficient to startthe limitation period running.

There was simply not a sufficient body of credible evidence to establish that her injuries met the thresholdat that time. Mr. Medcalf's affidavit suggesting solicitor's inadvertence is not determinative. In fairness, he also addressed the issue of discoverabilityand that evidence that Ms. Chan had suffered sufficiently significant injuries was not available until after more than seven days followingthe accident. [page278] [43] I conclude that there is no merit to Ms. Monteanu's first novel argument. [44] Ms.

Monteanu's second novel argument, also without any support in the case law, is that, after weighing of evidence, evaluating thecredibility of the deponent and drawing reasonable inferences from the evidence put forward on this motion, Mr. Farhat does not have athreshold claim and thus it cannot be concluded that he "discovered" his claim in April 2007. [45] In other words, Ms. Monteanu argues that Mr.

Farhat cannot discover a threshold claim when there is no threshold claim todiscover, as demonstrated by the evidence in the case at bar that suggests that the non-pecuniary damages claim cannot be connected tothe car accident. [46] I disagree with this argument, and I agree with Mr. Farhat's submission that Ms. Monteanu is improperly attempting through asummary judgment motion to have a pre-trial motion to determine whether Mr.

Farhat's injuries meet the threshold. [47] However, under s. 276.5(12) of the Insurance Act, a motion to determine if the threshold has been met may be made before trialonly "with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference". In the case at bar,the prerequisites for a pre-trial motion to determine whether the threshold has been met have not been satisfied.

[ 48 ] It may be the case that Mr. Farhat's injuries do not surpass the threshold, but that determination must be made at trial. I, therefore, disagree with Ms. Monteanu's second argument. D. Conclusion [ 49 ] For the above reasons, I dismiss Ms. Monteanu's

summary judgment and I grant Mr. Farhat's partial

summary judgment motion. The balance of his claim should proceed to the trial scheduled for January 2016. [ 50 ] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Farhat's submissions within 20 days of the release of these reasons for decision followed by Ms. Monteanu's submissions within a further 20 days. Plaintiff's motion granted; defendant's motion dismissed. End of Document