2010 ONSC 2589, 2010 ONSC 2589

CITATION : LEES v. WILLOUGHBY ET AL, 2010 ONSC 2589 COURT FILE NO.: 06-0655 DATE: 20100503 SUPERIOR COURT OF JUSTICE - ONTARIO RE: THOMAS LEES, Plaintiff AND: DAVID WILLOUGHBY and the SUPERINTENDANT OF INSURANCE (did not participate in motion), Defendants BEFORE: THE HON. MADAM JUSTICE M. P. EBERHARD COUNSEL: A. Kerr Counsel, for the Plaintiff G. Marcuccio Counsel, for the Defendant Willoughby HEARD: April 28, 2010 ENDORSEMENT [ 1 ] The Defendant Willoughby moves for

Summary Judgment for breach of the applicable limitation period. [ 2 ] The following facts are not in dispute: (

a) The accident occurred June 29, 2003. (

b) The Statement of Claim issued June 23, 2006. (

c) The applicable limitation period is 2 years. (

d) On the date of the accident the Plaintiff attended at the local hospital with knee pain. He was told his knee was in two pieces. No treatment was offered and he was not using crutches when he returned to hospital 2 weeks later with back pain. Again no treatment was offered and the note on the chart stated: “Diagnosis – Back strain > if symptoms worsen or change follow up in E.R.” (

e) The Plaintiff consulted counsel but took no steps and sought no further treatment. (

f) The Plaintiff, who had theretofore worked sporadically, commenced full time employment in September 2005, found his pain worsening and consulted counsel who issued the Statement of Claim. [ 3 ] The issue upon which

Summary Judgment turns is whether “there is a genuine issue requiring a trial” [i] [1] that the discoverability rule applies, which would have the effect of postponing the running of the limitation period until “the material facts underlying the cause of action, including extent of the injury, are known”. [ii] [2] [ 4 ] I am aware of my expanded powers of assessment under the rule amendment which is balanced against caselaw adopting a more cautious stance: It is generally not appropriate to grant

summary judgment when the rule of discoverability is central to the resolution of a limitation issue. In this case, there were facts in dispute that constituted a genuine issue for trial. [3] [ 5 ] Case law, even under the previous rule, has established that

summary judgment may be granted in cases involving limitation periods. Although a party may raise the issue of discoverability, this does not prevent the granting of

summary judgment if the Plaintiff does not provide the court with evidence that would give rise to a factual issue regarding discoverability. Fekrta v. Siavikis [2008] O.J. No. 4281, at para 4 , Tab 1 [4] [ 6 ] I would have no hesitation in finding that the Plaintiff knew he was injured and knew the Defendant was involved in the accident giving rise to a factual claim for compensation. [ 7 ] However, under the Insurance Act , there is a threshold for a Plaintiff to meet where loss or damage arises from use or operation of a motor vehicle: [5] a.

Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature? b. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one? c. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?

[8] Although subsequent legislation varied those questions slightly, the significant criteria of “serious” and “permanent” remainas impediments to tort recovery. [9] Courts have addressed various fact circumstances involving Plaintiffs who know they have suffered a loss arising from useor operation of a motor vehicle but until a new factor develops in their circumstance, they argue that they were not aware of material factsgiving rise to their cause of action. [10] Many of these cases involve new medical information shedding light on extent of injury or causation[6] such that they arediscovered, by diligence in pursuing medical advice, to be serious and permanent. [11] There is no such bright light moment in the present case.

The Plaintiff was not advised to pursue treatment until symptomsworsened or changed. He could tolerate the level of pain which did not change, until he commenced full time work.

Then he perceivedthat his injuries were serious and permanent and a claim was pursued. [12] In Ioannidis, Speyer J. gathers authority describing the “Catch 22” for a Plaintiff whose claim if brought before injury matureswill not meet threshold but if he waits too long to determine serious and permanent, he risks breach of the limitations period: 44 ….It is suggested that at a trial, when the discoverability rule is applied to determine the limitation accrual date for an actionrequiring a qualifying injury (threshold), the test is not whether the claim meets threshold, or even whether there is a reasonable body ofevidence to support same (for that is the actual determination to be made by the trial Judge under

Section 266 of the Insurance Act, butrather, is there known or available credible evidence that permits an argument to be advanced on the claim. 45 I disagree with this submission. Peixeiro decides that the limitation period is postponed until the plaintiff knows or ought reasonablyto know by the exercise of diligence, that she has a qualifying injury. A body of evidence must exist for the plaintiff to make thatdetermination. In many cases, this will be a difficult call for everybody including the court. Each case must be decided on its own facts.

Ientirely subscribe to the observations made by Langdon J. in Ioannidis v. Hawkings (1998), (ON SC), 39 O.R. (3d)427: The statutory catch 22 which the potential litigant faces when the injuries do not heal as expected is succinctly stated in para. 14 [pp.555-56 S.C.R.] of the Peixeiro judgment: It is no answer to say that the plaintiff could protect his or her position by Starting an action notwithstanding the fact that there was noevidence of an injury that met the threshold … This procedure was obviated by s. 266(3), which provided for a pre-trial motion by thedefence to strike the plaintiffs claims.

See Grossi v. Bates (1995), (ON SC), 21 O.R. (3d) 564 (Div. Ct.). Thus, if the plaintiff issues suit prematurely, he or she may be faced with an almost I immediate motion to dismiss the claim. If,following a pre-trial assessment, the judge is persuaded that the claim does not meet the threshold, the plaintiffs action is dismissed onceand for all. 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 bestatute barred.

The ultimate determination whether a claim meets the threshold or not is far from a simple task and is one about which reasonable menmay often disagree. [13] There is an issue requiring trial as to the nuanced determination of what the Plaintiff knew, not just of his injury, but of thecriteria for his Cause of Action.

Supposing that he got accurate legal advice, what greater diligence could have been expected of thisPlaintiff, in his life circumstances, when the medical information he had did not suggest he do more? [14] In sedentary circumstances his loss of capacity was not evident but when put to the test, a loss was noted. This theory does notoffend logic. It could be so and should be tried. [15] I do not find this to be a case for

Summary Judgment on the basis of limitation period. [16] An alternate logic was argued that if he is better now than he was at a time before he could discover that his loss was seriousand permanent, that the Plaintiff cannot succeed. Either his injury was discoverable and has improved so that it would not now reachthreshold or it was not discoverable because it was not evidently serious or permanent and it still is not demonstrably serious orpermanent. [17] Too many other factors are at play. I am not prepared to leap to such a conclusion on this

Summary Judgment motion. [18] For these reasons

Summary Judgment is declined. [19] Costs may be addressed by written submission of up to 2 pages together with any offers and a cost memorandum to bedelivered to the judicial secretaries by June 1, 2010

EBERHARD J. Date: May 3, 2010 [3] MacMillan v. McDermid (ON CA), [2004] O.J. No. 937 [4] Fekrta v. Siavikis [2008] O.J. No. 4281, at para 4, [5] Meyer v. Bright (ON CA), [1993] O.J. No. 2446 page 8 [i] Rule 20.04(1) as amended [ii] Peixeiro v. Haberman (SCC), [1997] 3 S.C.R. 549, at para 18, Tab 2