2011 NLCA 27, 2011 NLCA 27

Date: 201104 28 Docket: 09/115 Citation: Morgan v. Rogers , 2011 NLCA 27 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : KIM MORGAN FIRST APPELLANT (THIRD DEFENDANT/FOURTH DEFENDANT BY COUNTERCLAIM) AND : DAVID MORGAN SECOND APPELLANT (FOURTH DEFENDANT/FIFTH DEFENDANT BY COUNTERCLAIM) AND : DEAN BRADLEY FRY FIRST DEFENDANT/ (THIRD DEFENDANT BY COUNTERCLAIM) AND : DANIELLE DELANEY THIRD APPELLANT/ (SECOND DEFENDANT/PLAINTIFF BY COUNTERCLAIM) AND : ROYAL GARAGE LIMITED FIFTH DEFENDANT AND : DAIMLER CHRYSLER CANADA INC.

SIXTH DEFENDANT AND : JUDY ROGERS RESPONDENT (FIRST PLAINTIFF/DEFENDANT BY COUNTERCLAIM) AND : DONALD ROGERS (Dismissed) SECOND PLAINTIFF AND : SELBY DONALD ROGERS (Dismissed) THIRD PLAINTIFF (SECOND DEFENDANT BY COUNTERCLAIM) Coram: Welsh, White and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 200701T0874

Appeal Heard: December 6, 2010 Judgment Rendered: April 28, 2011 Reasons for Judgment by Hoegg, J.A. Concurred in by Welsh and White, JJ.A. Counsel for the First and Second Appellants: Bridget S. Daley Counsel for the Third Appellant: Terry Rowe, Q.C. Counsel for the Respondent: Donald K. Powell Hoegg, J.A.: INTRODUCTION [ 1 ] The appellants Kim Morgan, David Morgan and Danielle Delaney are defendants to an action taken by Judy Rogers for damages sustained as a result of a motor vehicle accident. This appeal concerns whether the respondent, Mrs. Rogers, can rely on the provisions of

section 14 or 15 of the Limitations Act , S.N.L. 1995, c. L-16.1 (the “ Act ”) to advance her otherwise time-barred personal injury claim. FACTS [ 2 ] Mrs. Rogers was the driver of a car involved in a multi-vehicle collision on February 26, 2005 at Bay Roberts, NL. Directly afterwards, she was taken by ambulance to Carbonear General Hospital where her injuries were assessed. At the hospital Mrs. Rogers told staff that she had lost control of her car when braking to reduce her speed after coming upon a black van stopped in the middle of the slippery road. Mrs.

Rogers was diagnosed with soft tissue injury and a possible undisplaced fracture of the scapula, treated with analgesics and released. The next day her family doctor attended her home to address her complaints of pain and reduced mobility. The day after that, February 28, 2005, she gave a written statement about the accident to an RCMP officer who went to her home. In it Mrs. Rogers describes how the accident happened, the driving conditions, being trapped in her car and then extricated from it by the jaws of life, her visit to the hospital and her injuries. For several days after the accident, Mrs.

Rogers suffered from pain, incoherence, nausea, dizziness and severe headache and spent most of her time in bed. She was prescribed Demerol for her symptoms. [ 3 ] On February 27, 2007, Mrs. Rogers, through counsel, issued a statement of claim for damages arising from the accident. The statement of claim was issued one day after the expiration of the two year limitation period governing claims arising from motor vehicle accidents. (See

section 5 of the Act ). The parties agree that the claim was issued outside of the prescribed period. [ 4 ] As a consequence, the defendants applied under Rule 38 of the Rules of the Supreme Court, 1986 for a determination that Mrs. Rogers’ claim was statute barred. In response, Mrs. Rogers maintained that her action was saved by the operation of the discoverability principle pursuant to

section 14 of the Act . THE APPLICATIONS COURT DECISION [ 5 ] Evidence on the Rule 38 application was tendered in affidavits from Mrs. Rogers, her counsel, and counsel for the Fifth and Sixth Defendants. It included the RCMP accident investigation file, Mrs. Rogers’ Carbonear Hospital record and her physician’s clinical file. The evidence was unchallenged. [ 6 ] The applications judge decided that the discoverability provisions of

section 14 of the Act saved Mrs. Rogers’ claim. He stated in his judgment that discoverability delayed the running of the limitation period relating to Mrs. Rogers’ action by one or two days, because Mrs. Rogers “was likely rendered for at least a day or two incapable of knowing or understanding the circumstances of the accident and thereby being aware that she had a cause of action against any of the Defendants” (paragraph 21). He went on to say in the same paragraph that Mrs. Rogers’ claim was thus brought “within the terms of

section 14 of the Act that the running of the limitation period was delayed until her pain and incoherence had subsided a day or two after the accident, certainly she had sufficient knowledge on the 28th which is the evidence we have in relation to the statements she gave.” He concluded that he was “satisfied, on the balance of probabilities, Mrs. Rogers was unaware of the existence of circumstances giving rise to a cause of action at least one or two days following the accident until the statement was taken by the RCMP.

As a consequence, the limitation period did not begin to run until probably February 28th” (paragraph 23). In the result, the applications judge found that Mrs. Rogers’ action was filed within two years from February 28, 2005 and therefore was not statute barred. THE APPEAL [ 7 ] The appellants appeal to this Court alleging that the applications judge erred in law and/or in mixed fact and law as to his statement and application of the legal test for discoverability under

section 14 of the Act , and that he misapprehended the evidence on which he based his decision that Mrs. Rogers’ action was saved. The appellants also argue that if it was the applications judge’s intention to find that Mrs. Rogers’ action was saved due to disability, he erred in his appreciation of the evidence and in concluding that

it supported a finding of disability under

section 15 of the Act. STANDARD OF REVIEW [8] The standards of review to be applied by an appellate court are well established. They were recently summarized byCameron J.A. of this Court at paragraph 15 of Cleary v. Courtney, 2010 NLCA 46: [15] The standards of review applied by this Court were discussed in Ring v. Canada et al., 2010 NLCA 20, at para. 6: The standard of review applied by an appellate court depends upon the nature of the matter being reviewed. A pure question of law isreviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own.

Findings of fact,on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error. A determination of whether a legalstandard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law. A question ofmixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricableerror in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error inlaw and the applicable standard is correctness.

These principles are well established: Housen v. Nikolaisen, 2002 SCC 33 ,[2002] 2 S.C.R. 235. Findings of credibility are part of the fact finding process and are subject to the same standard of review, as are inferences drawn fromthe facts. If inferences drawn by the trial judge are reasonable, an appellate court should not intervene just because other inferencescould also have been reasonably drawn: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paragraph 74. InH.L. v.

Canada, paras. 55-56, Fish J. said: “Palpable and overriding error” is at once an elegant and expressive description of the entrenched and generally applicable standard ofappellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governingstandard. In Housen, for example, the majority … and the minority … agreed that inferences of fact at trial may be set aside on appeal ifthey are “clearly wrong”.

Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge’sfindings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result. In my respectful view, the test is met as well where the trial judge’s findings of fact can properly be characterized as “unreasonable” or“unsupported by the evidence”.

THE LAW The Discoverability Principle [9] The discoverability principle developed as judge-made law to attenuate the harshness and injustice of barring a claim before aplaintiff knows of its existence or is able to sue (see Central Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147 at page224 and Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549 at paragraphs 36 and 37). The principle permits alimitation period to accrue from the time when a plaintiff knows or ought reasonably to know that he or she has a cause of action asopposed to the time when the events giving rise to the cause of action arose.

The Legislation [10] In recent years discoverability has been codified in legislation, and in this Province it is found in

section 14 of the Act. Therelevant parts of that

section read as follows: 14.

(1) Notwithstanding

section 13, in an action (

a) for personal injury; (

b) property damage; (

c) professional negligence; (

d) for relief from the consequences of a mistake; (

e) under the Fatal Accidents Act; and (

f) for a non-fraudulent breach of trust, the limitation period fixed by this Act does not begin to run against a person until he or she knows or, considering all circumstances ofthe matter, ought to know that he or she has a cause of action.

(2) The burden of proving that the running of the limitation period has been postponed or suspended under this

section is on theperson claiming the benefit of that postponement or suspension. [11]

Section 15 of the Act addresses the running of a limitation period when a plaintiff is under a disability. The applicationsjudge’s finding that Mrs. Rogers was essentially incapacitated for a day or two after the accident thus delaying the accrual of thelimitation period raises the issue of disability pursuant to

section 15. The applicable parts of that

section read: 15.

(1) Notwithstanding

section 13 and subsection 14(3), where, at the time the right to bring an action arises, a person is under adisability, the running of time with respect to a limitation period under this Act is postponed so long as that person is under a disability.

(2) Where the running of time against a person with respect to a cause of action has been postponed under subsection (1) and that person

ceases to be under a disability, that action shall be started before the date of expiration of the limitation for that action commencing fromthe date the disability ceases. …

(5) A person is under a disability while that person is … (

b) incapable of the management of his or her affairs because of disease or impairment of his or her physical or mental condition; … Burden of Proof [12] The party seeking the benefit of the discoverability principle has the burden of proving facts that justify the extension of alimitation period. Likewise, if a party wants to postpone the running of time due to disability, that party has the onus of proving he orshe was disabled within the meaning of the Act for the applicable period of time.

The Case Law [13] The Supreme Court of Canada succinctly described the operation of the discoverability principle on a limitation period at page224 of Central Trust, which was an action arising from a solicitor’s negligence in taking an illegal mortgage: [A] cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered orought to have been discovered by the plaintiff by the exercise of reasonable diligence … . [14] This principle and the manner of its application were reiterated more recently by the same court in Ryan v.

Moore, 2005 SCC38 , [2005] 2 S.C.R. 53 at paragraph 22: The discoverability principle provides that “a cause of action arises for purposes of a limitation period when the material facts onwhich it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”. Central Trust, at p. 224. [15] Although Ryan v. Moore is a case from this province, it did not involve consideration of

section 14 of the Act. [16] In WEH Enterprises Limited v. Squires, 2010 NLCA 41, a recent decision of this Court, the discoverability principle wasapplied in the context of

section 14 of the Act. WEH upheld an applications court’s decision that the plaintiff could not rely ondiscoverability to extend a limitation period (paragraph 25). The applications judge had considered the evidence and determined thatthere were indicators of negligence present which the appellant knew or ought to have by reasonable diligence known when the eventsgiving rise to the cause of action occurred. Accordingly, he ruled that the plaintiff had failed to provide evidence sufficient to displacethe inference that it knew or ought to have known of the defendants’ negligence when it occurred.

This Court agreed, stating that theappellant had failed to establish the elements necessary for reliance on the discoverability rule. [17] Cases relied on by the Appellants include the following: In Williams v. Thomas Development Corp. et al. (2000), (NL SC), 196 Nfld. & P.E.I.R. 220 (S.C.T.D.) referred toby the parties, the plaintiff was unaware of the existence of a party whose involvement as a defendant she could not have known of untilafter she had discovered the first defendant, which discovery had taken place after the limitation period expired.

The court appliedsection 14 of the Act, and permitted the action to proceed against the newly discovered defendant, notwithstanding that the limitationperiod governing the cause of action had expired. In Stell v. Obedkoff (1999), (ON SC), 45 O.R. 3d 120 (Ont.

S.C.J.), a case decided before the codification of thediscoverability principle in Ontario legislation, the evidentiary burden on a plaintiff seeking to invoke the discoverability principle wasdiscussed at paragraph 16: … beyond the allegations, the plaintiffs have not adduced any evidence which gives rise to a factual issue regarding the question ofdiscoverability.

No evidence has been provided indicating that here were unusual circumstances which prevented the plaintiffs fromdiscovering the alleged negligence of the defendants, nor has there been any suggestion that the defendants withheld a vital part of theevidence. No evidence has been provided to explain why the alleged negligence of the defendants could not reasonably have beendiscovered within the limitation period. A more recent Ontario case, Jack v. Canada (Attorney General), (ON SC), [2004] O.J. No. 3294 (Ont. S.C.J.), alsodid not involve consideration of a statutory provision addressing discoverability.

Jack held that objective facts supporting a claim thatare discovered at a later point in time are pre-requisite to extending a limitation period on the basis of discoverability, and that a plaintiffneed not have a thorough understanding of the facts on which his or her action is based, nor knowledge of the precise cause of herinjuries, on the date his or her cause of action arises. The court reasoned that such requirements would set the bar too high for extendinga limitation period beyond that which the legislature had determined appropriate.

In Hendsbee v. Khuber (1995), (NS SC), 148 N.S.R. (2d) 270 (SC), the plaintiff was affected by a change in the lawbrought about by a Supreme Court of Canada decision on jurisdiction. As a result, he found himself out of time and sought to invoke thediscoverability principle to assist. No statutory provision addressing discoverability was at issue. Justice Goodfellow found no evidenceto support discovery of any information which would warrant the clock ticking from a date later than the date on which the plaintiff washurt, and barred the plaintiff’s claim. ISSUES [18] The issues before this Court are whether the applications judge correctly interpreted and applied

section 14 of the Act infinding that Mrs. Rogers did not know she had a cause of action until February 28, 2005, and whether the evidence supports his decision. [19] The

interpretation of

section 14 of the Act is a legal issue, and must be decided on a standard of correctness. The application ofthis statutory provision to found facts is a question of mixed fact and law, and subject to the review standard of palpable and overridingerror. The findings of fact and inferences drawn by the applications judge are subject to a review standard of palpable and overridingerror, and can be overturned only if they are determined to be unsupported by the evidence or otherwise wrong and if the erroneousfindings affected the result. ANALYSIS [20] While all of the above referenced cases may be helpful to consideration of this matter, it is important to recognize that this caseinvolves

interpretation and application of the principle of discoverability within

section 14 of the Act. If Mrs. Rogers wishes to avail ofthe benefit of

section 14, she has the burden of establishing on a balance of probabilities that she did not know or ought not reasonably tohave known she had a cause of action until some time later than February 26, 2005. [21] The meaning of “cause of action” was discussed in Foley v. Greene (1990), (NL SC), 85 Nfld. & P.E.I.R.156 (Nfld. T.D.). At para. 36, Barry J. as he then was, quoted Lord Diplock’s definition from Letang v.

Cooper, [1964] 2 All E.R. 929(H.L.) at 934: A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy againstanother person. [22] Justice Barry went on to say: This definition was accepted in Consumer Glass as well as in Hier v. Allstate Insurance Co. of Canada (1988), (ON CA), 51 D.L.R. (4th) 1 (Ont. C.A.). In Pioneer Envelopes Ltd. v.

Minister of Finance of British Columbia (1980), (BC SC), 24 B.C.L.R. 175 (S.C.), at 185, Bouck, J. said: A cause of action is not defined by the Court Order Interest Act and the common law has never specifically said it has a particularmeaning. More often it has been discussed with respect to limitation provisions in a statute. Then the court has to decide at what time acause of action came into being.

The broad rule under this head is that the time a cause of action arises is when any fact that is materialto be proved entitling the plaintiff to succeed is in existence so that a defendant will have the right to traverse any such allegations of fact. [23] The case law demonstrates that the discoverability principle relates to discovery of the material facts which ground a cause ofaction. Material facts essential to a cause of action are facts supporting a basis for the action, like negligence in this case, damage, andthe existence of defendants.

Review of other provincial legislation addressing discoverability in the context of limitations accords withthe discoverability principle relating to a plaintiff’s discovery of material facts grounding his or her cause of action. See for exampleLimitations Act, 2002, S.O. 2002 c. 24, Sch. B, sec. 5; Limitations Act, R.S.B.C. 1996, c. 226, s. 6; and Limitations Act, S.S. 2004, c.L-16.1, s. 6. Knowledge of a “cause of action” within the meaning of

section 14 means knowledge of the material facts grounding thecause of action. [24] In his judgment the applications judge quoted the discoverability principle from Central Trust. He went on to identify what acause of action is, and then suggested, in paragraph 19, that knowledge of a cause of action requires knowledge of first, “a circumstanceor situation like an accident which has occurred, second, that the circumstance has caused some damage, and third, that it was caused bya person who could be a party to an action.” Accordingly, the judge, proceeding on the basis that

section 14 required that Mrs. Rogers’know the material facts of her cause of action, correctly stated the question to be determined. [25] The applications judge then considered whether Mrs. Rogers knew she had a cause of action on February 26, 2005. Severaltimes in his judgment he referred to Mrs. Rogers’ “awareness” or “appreciation of circumstances” in assessing her knowledge, as shownby the following references: 1) Mrs. Rogers was not “fully aware of what happened for several days” (paragraph 7); 2) “… I am certain that Mrs.

Rogers was in a position on the 28th certainly to form the intention or to be aware of the circumstancessurrounding [the] accident such that she would be aware that she had a cause of action.” (paragraph 12); and 3) the information the plaintiff gave to the hospital as not recording “sufficient circumstances, for instance the identify of otherparties, for her to be able to have a full appreciation that she had a cause of action.” (paragraph 16) He then asked himself, in paragraph 19: “Is there any evidence before me which indicates that the Plaintiff, Mrs.

Rogers, had sufficientknowledge on the 26th of February to have been aware that she had a cause of action.” [26] While the concept of knowledge encompasses awareness and appreciation, it would be preferable to use the actual word

“know” as found in the statute, and then to assess Mrs. Rogers’ knowledge vis à vis each of the material facts of her action in determining whether she knew or ought to have known them on February 26, 2005. Such an approach would allow for a clearer analysis. [ 27 ] The applications judge ultimately found that Mrs.

Rogers did not “know” she had a cause of action until February 28, 2005, saying at paragraph 21 that “she was likely rendered for at least a day or two incapable of knowing or understanding the circumstances of the accident and thereby being aware that she had a cause of action against any of the defendants.” The appellants argue that this finding is unreasonable and not supported by the evidence.

Is it? [ 28 ] I am satisfied that the applications judge’s apprehension of the evidence is unsupported by the record, and that it has led to a wrong result. [ 29 ] As a general observation, there is no evidence of any later event that led Mrs. Rogers to discover any material fact related to her cause of action after February 26, 2005, and her counsel was not able to identify any material facts on which her claim is based which she did not know or could not by reasonable diligence have known on the date of the accident. [ 30 ] The evidence indicates that Mrs.

Rogers advised the hospital staff of the circumstances of the accident. Her hospital chart entry reads: “Driver of Dodge Neon on slippery surface Black van was stopped in middle of road Hit brake to reduce speed – lost control”. [ 31 ] This statement itself indicates that Mrs. Rogers knew of possible negligence, the existence of at least one defendant and that she had suffered damage on February 26, 2005. [ 32 ] The applications judge partly rested his decision on a finding that because the hospital record did not disclose potential defendants other than the owner and/or operator of the black van, Mrs.

Rogers must not have been aware of the circumstances of the accident. With respect, a plaintiff’s failure to identify all possible defendants to her action to medical personnel in a hospital emergency department is not evidence that she did not know or was incapable of determining by reasonable diligence facts material to her cause of action. [ 33 ] The applications judge also justified his decision on his finding of uncertainty as to the source of the information contained in her hospital record. The judge concluded that it was not proved that Mrs.

Rogers herself provided the information to the hospital staff, the inference being that it could have been provided by her son who accompanied her to the hospital. [ 34 ] The information in the hospital record describing the accident appears under the heading “Patient’s Account of Injury” on a page which clearly identifies Judy Rogers as the patient. There is no mention of any other person in that record, nor any implication from the wording that the information was provided by anyone other than Mrs. Rogers. There is therefore no basis for a finding of uncertainty.

As well, the RCMP Continuation Report written by Constable Vincent Clark states that on the day of the accident Constable Alexander attended the hospital and “spoke with the Rogers, who had both sustained non-life threatening injuries.” This notation indicates that Mrs. Rogers spoke with the police officer on February 26, 2005, and accordingly, infers knowledge of the situation including her knowledge that she sustained damage. [ 35 ] The evidence of Mrs.

Rogers that she was incoherent, dizzy, nauseated and suffered from headache for several days after the accident also figured into the applications judge’s reasoning. While not wishing to minimize Mrs. Rogers’ symptoms in any way, they do not, in the absence of other evidence, indicate that she was unable to know the material facts relating to her accident. Indeed this state of Mrs. Rogers’ health persisted for several days post accident, yet the applications judge found it only prevented her knowing she had a cause of action for “a day or two”. Accordingly, this is not a logical basis for distinguishing Mrs.

Rogers’ knowledge of her cause of action before February 28, 2005 from after February 28, 2005. [ 36 ] It is also noteworthy that Mrs. Rogers’ statement given to the RCMP two days later on February 28, 2005, provides a clear, first-hand description of the involvement of each of four vehicles in the accident, as well as her extrication from her car by the jaws of life, her hospital visit and her injuries. There is no suggestion in the wording of Mrs. Rogers’ statement that it is anything other than a clear recounting of events from her own memory. [ 37 ] The applications judge also indicated that Mrs.

Rogers’ knowledge of her cause of action was “insufficient” and that her appreciation and/or awareness of what happened was not “full”. With respect, these are slippery concepts. It is not necessary that a plaintiff fully appreciate the material facts of her cause of action before the limitation period accrues.

As found by the court in Jack , a plaintiff’s understanding does not have to be thorough nor does his or her knowledge have to be precise before a limitation period begins to run. [ 38 ] Having regard to the above, it is clear that the trial judge made palpable and overriding errors in his assessment of the evidence in finding that Mrs. Rogers had no knowledge of her cause of action. It is also clear that his misapprehension of the evidence affected the result. Accordingly, his decision must be set aside.

Disability [ 39 ] As indicated above, the applications judge determined that the applicable limitation period could accrue from February 28, 2005 because of Mrs. Rogers’ immediate post accident medical condition. The Appellants argue that the applications judge’s findings indicate that he confused sections 14 and 15 of the Act .

Section 15 of the Act serves to extend a limitation period for a person who is under a disability. While the assessment of a plaintiff’s knowledge required by

section 14 may allow for consideration of a plaintiff’s health, evidence relating to health can certainly engage consideration of capacity under the provisions of

section 15. [ 40 ] For Mrs. Rogers to postpone the running of time applicable to her cause of action under

section 15 , she must prove as a result of her mental or physical condition she was incapable of managing her affairs for the period in respect of which she seeks postponement.

Insofar as the applications judge’s decision may be construed as a finding of disability warranting the accrual of the limitation periodfrom a date later than February 26, 2005, it is incumbent upon this Court to address the issue. [41] Again, the authorities are helpful. The following cases are examples of disability being considered for the purpose ofextending a limitation period. [42] In Coffey v. Bassett et al. (2001), (NL SC), 207 Nfld. & P.E.I.R. 173 (NLTD), a case decided undersection 15 of the Act, Mrs.

Hollett, a seventy-six year old plaintiff, was rendered unconscious and in need of surgery as a result of amotor vehicle accident. She was hospitalized and subsequently suffered a heart attack which prolonged her hospital stay. Medicalevidence established that she was a dependent individual unable to manage her own affairs until her release from hospital some threemonths post accident. The court found that she was disabled within the meaning of

section 15 and postponed the running of theapplicable limitation period until she had sufficiently recovered. [43] In Cowen v. Gray, 2001 Carswell BC 779, the British Columbia Supreme Court considered the medical condition of a plaintiffwho sought to extend a limitation period on the basis of difficulty in managing her day to day affairs as a result of post concussionsyndrome with memory loss, headache, chronic pain and depression caused by a motor vehicle accident. The British Columbia statutoryprovision respecting disability, on which the case was decided, is similar to the wording of section 15(5)(

b) of the Act. The Court foundthat these symptoms did not establish that the plaintiff was incapable of managing her affairs, and therefore the standard of proofrequired to establish disability so as to postpone the running of time was not met. The Court said that the evidence did not establish thatthe plaintiff’s post accident symptoms were so overwhelming as to cloud her understanding of her legal rights. [44] In Cowan, the court referenced Wirtanen v.

British Columbia (1994), (BC SC), 98 B.C.L.R. (2d) 335(BCSC), where the court permitted the extension of a limitation period on the basis of disability for a plaintiff who had suffered “anextremely severe traumatic brain injury” and was confined to a wheelchair. [45] The Wirtanen situation is akin to that in Snow v. Kashyap (1996), (NL CA), 139 Nfld. & P.E.I.R. 321(Nfld. C.A.) in which the plaintiff Snow, severely and irreversibly mentally and physically disabled, was held not to be bound by thelimitation period which would otherwise have governed his case. Although Snow was decided on

section 15 of the Canadian Charterof Rights and Freedoms owing to the Act not being in force at the time, the nature and extent of the Plaintiff’s capacity to manage hisaffairs was at issue. [46] It is clear from the above cases that the medical conditions of Mr. Snow, the plaintiff in Wirtanen and Mrs. Hollett in Coffeyare of a different order than that of Mrs. Rogers, and that they could support findings of incapacity to manage one’s affairs so as to provedisability under

section 15 of the Act. [47] The appellants argue that when a party applies for an extension of a limitation period under section 15(5)(b), supportive expertmedical evidence respecting capacity to manage one’s affairs must be tendered. While expert evidence may not be necessary in everycase, it is worth observing that such evidence would often be indicated. Mrs. Rogers did not adduce any medical opinion evidence. [48] In order to establish incapacity to manage one’s affairs within the meaning of

section 15 of the Act, it would be necessary toprove significant impairment. It would be unwise to set the requisite standard for establishing disability for the purposes of section15(5)(

b) in this case, for the issue was not fully argued by the parties due to the roundabout way it came before the Court. However, it issufficient to say that the evidence of Mrs. Rogers’ symptoms of pain, incoherence, etc. requiring bed rest and medication for several daysdoes not approach the level of impairment which must be proved in order to establish disability under the Act. The evidence respectingMrs. Rogers’ health condition post accident, which condition is not unlike that of many people injured in car accidents, does notdemonstrate incapacity to manage her own affairs for the purposes of

section 15 of the Act.

SUMMARY [49] In

summary, the trial judge committed palpable and overriding errors in finding that Mrs. Rogers did not know she had a causeof action on February 26, 2005. Accordingly, she is unable to avail of the provisions of

section 14 of the Act to postpone the running ofthe two-year limitation period applicable to her cause of action. Neither is she able to rely on the provisions of

section 15 to extend thelimitation period. To hold otherwise on the facts of this case would introduce uncertainty into an area of law such that the limitationprovisions of the Act would be rendered virtually ineffective in cases of personal injury, thereby defeating the purpose of thelegislation. In the result, Mrs. Rogers’ claim was issued outside of the prescribed period and is time barred. [50] In the result, the appeal is allowed and the appellants are awarded their taxed party and party costs in this Court and the Courtbelow. ______________________________ L. R. Hoegg, J.A. I Concur: ___________________________ B. G. Welsh, J.A. I Concur: ___________________________ C. W. White, J.A.