2013 ONSC 4973, 2013 ONSC 4973

CITATION : Yelda v. Vu, 2013 ONSC 4973 COURT FILE NO.: 11-27773 DATE: 2013/08/09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Valmire Yelda ) ) ) Robert Findlay, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) Thi Duyen Vu, also known as Peter Vu, Diane Vu, Selena Vu, also known as Selena Ferreira Vu, or, Ines Vu, Ivo Curzi, and State Farm Mutual Automobile Insurance Co. ) ))) ) Brian Bangay, for the Defendants Selena Vu and Peter Vu Christopher Missiuna, for the Defendant Curzi ) Defendants ) ) ) ) HEARD: July 24, 2013 The Honourable Mr. Justice H. S. Arrell REASONS FOR JUDGMENT Introduction: [ 1 ] The defendants bring these 2 motions for

summary judgment to dismiss the claim of the plaintiff on the basis that the applicable limitation period has expired.

Facts: [2] The plaintiff was a passenger in the Vu vehicle when it was involved in a motor vehicle accident on July 19, 2002. The accidentwas therefore eleven years ago. She issued her claim for damages on May 25, 2011. The pleadings are complete and discoveries havebeen held. [3] This accident involved a 2 car collision with both defendants alleging they had a green light. As such, both damages andliability are live issues. [4] The defendant Curzi is 78 years of age. He is in poor health.

Discoveries had to be held in his home as he was unable to attendthe examiner’s office. [5] Pursuant to an Order by Lococo J. dated July 21, 2011 for production of the police file the police have indicated their file hasbeen destroyed due to the passage of time. All that counsel have is a redacted police report and no further investigating material by thepolice. [6] The Ministry of Health has indicated that its policy is not to retain information longer than 7 years.

The earliest OHIPinformation provided by the plaintiff is dated April 1, 2003, almost one year post accident. [7] The plaintiff attended the emergency department of her hospital on the day after the accident complaining of back, neck andshoulder pain. She was released later that day with medication and told to see her family doctor, which she did. [8] The family doctor prescribed physiotherapy for 1 month, analgesics and some time off work.

That was the extent of theplaintiff’s active treatment except for over the counter pain medication and two or three visits to emergency hospital departments untilNovember 2009. At that time an x-ray showed L5-S1 facet disease as well as sacroiliitis. Shortly thereafter the plaintiff retained counselwith the claim being issued in 2011. [9] The plaintiff testified on her discovery that she had “really bad” low back pain “half the time” each month following theaccident.

She always believed this pain was caused solely as a result of the motor vehicle accident of July 19, 2002. [10] The pain would occasionally spike up and become intolerable causing her to attend hospital. There appears to be no evidencethat the plaintiff did anything further to investigate this consistent, ongoing pain until November 2009. Her affidavit indicates that shewas told at the hospital each time she attended that there was nothing wrong and she would be fine after a few days rest.

That obviouslydid not occur as the pain continued. [11] The plaintiff also testified that she did nothing further to investigate her medical condition because “everybody says it’s so hardto find family doctors…” There is no explanation as to why she did not follow up with the doctor who initially treated her in the summerof 2002, nor is there any explanation as to why she came to have more intense investigations in the fall of 2009 but not before.

I amadvised by plaintiff’s counsel that she did attend the clinic she usually went to over that time period but never for the injuries from theaccident, only for the usual and routine ailments. There is no explanation as to why she did not ask that clinic to investigate her ongoingpain. [12] The plaintiff further testified that between 2002 and 2009 the pain on occasion would be so intense she could not function. [13] The plaintiff filed an accident benefits certificate shortly after the accident indicating she was unable to work or look after herparents.

Her doctor at that time indicated she had suffered a soft tissue injury and acute stress disorder. [14] The plaintiff further testified that her pain became progressively worse from the date of the accident until the present. She wasreally never pain free at any time. [15] The plaintiff testified that despite this consistent and increasing pain she was able to maintain her employment from October2002 until November 2007 when she took a 1 year maternity leave.

She did work for a year or so after her maternity leave ended. [16] The plaintiff testified that the pain increased further after obtaining a new job in 2009 such that she finally sought some medicalinvestigation and had the x-ray of her back in November 2009. She has not worked since March 2010. [17] The plaintiff applied for a disability pension with C.P.P. on July 29, 2011. In that application she stated that she had chronic backpain and since 2002 she had stopped running, jumping, climbing and felt that her life was passing her by.

Her doctor in that applicationconfirmed chronic back pain which is information he must have received from the plaintiff as he had only been her doctor since Februaryof 2011. The plaintiff wrote to C.P.P. on January 4, 2012 that “…I have struggled with this ongoing back pain for about 10 yearsnow…”. The Law: [18] A motion for

summary judgment shall be granted if the court has a full appreciation of the evidence and issues required to makedispositive findings without a trial. Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , [2011] OJ No.5431 (OCA) [19] The court on a

summary judgment motion may weigh the evidence, evaluate credibility and draw reasonable inferences from theevidence. Combined Air Mechanical Services v. Flesch, supra [20] The onus is on the moving parties to persuade me there is no genuine issue for trial.

[21] The Court of Appeal in Combined Air Mechanical Services v. Flesch has instructed motions judges that cases that call formultiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous recordare generally not suitable for

summary judgment. [22] The parties agree that the applicable legislation is the Highway Traffic Act and the Limitations Act. [23] At the time this accident occurred the plaintiff had to meet what is commonly referred to as the threshold which was defined inthe legislation as “a permanent serious impairment of an important physical, mental or psychological function”. [24] The legislation and case law imposes a 2 year limitation period from the date the plaintiff knew or ought to have known that acause of action existed through the exercise of reasonable diligence. Limitations Act, S. 5 Peixeiro v.

Haberman, (SCC), [1997] 3 S.C.R. 549 (S.C.C.) Position of the Parties: [25] The plaintiff argues she did not discover that her injuries would be sufficient to meet the threshold of the insurance regime inplace at the time of the accident until November 2009 when she had x-rays and further investigations. It is then, she submits, that thelimitation period commences and therefore by issuing her claim on May 25, 2011 she was well within the 2 year period under theLimitations Act.

She further argues that as all parties have been examined for discovery there is no prejudice to the defendants. [26] Finally, the plaintiff argues that it was not unreasonable to rely on the various doctors at the emergency departments she attendedover 7 years when she was advised there was nothing wrong and to take a couple of days rest. [27] The defendants argue that it is inconceivable that someone could have pain 50 percent of the time that was getting worse over 7years and not seek any treatment, diagnosis or prognosis.

They further argue that based on the plaintiffs evidence of pain 50 percent ofthe time; regularly taking medication for pain; pain causing hospital visits and time off work; and being unable to function on occasionbecause of the pain, that she was under an obligation to arrange some medical investigation and has therefore failed the test of duediligence. Analysis: [28] The plaintiff must have an appreciation that her damages reach a point that they could be considered permanent and serious. Everding v. Skrijel, 2010 ONCA 437 , [2010] O.J.

No. 2534 (OCA) [29] The onus is on the plaintiff to persuade the court that the seriousness of her injury was not discoverable within the applicablelimitation period. Smith v. Blackall, [2012] O.J. No. 4252 [30] The plaintiff also must persuade the court that she acted with due diligence to discover if she had a claim. As the Court ofAppeal has said limitation periods are not enacted to be ignored. Alexis v. Toronto Police Services Board, [2009] O.J. No 376 and aff’d 2009 ONCJ 647 , [2009] O.J. No. 5770 (OCA) [30] Limitation periods bring finality to litigation which is in the best interests of all parties.

As well, limitation periods help preventprejudice to the parties so that evidence, memories, and witnesses are available and fair trials held within a reasonable time period afterthe cause of action arose. Defendants are entitled to know at some point that they are no longer facing a claim. Peixero,supra, para 34 [31] In the case at bar there is perceived prejudice with a delay of eleven years. There is as well, real prejudice to the defendants.

Forexample, counsel for the defendant Curzi has sworn that he has some serious health problems which when combined with his age wouldappear to indicate that his memory is fading and discoveries had to be held in his home; the full police investigation is no longeravailable; O.H.I.P. records prior to May 1, 2003 are no longer available; the plaintiff’s employer for a number of years both before andafter the accident has gone bankrupt and it’s records are unlikely to be available; clearly some witnesses that would have evidence willnow have memories that are less than complete even if such people are still available; certain medical evidence that would likely go tocausation is not available because investigations were not carried out in a timely manner. [31] The Court of Appeal has indicated clearly that the plaintiff has an obligation to act with due diligence to discover if she has acause of action. “As appears from the decisions of the Supreme Court of Canada in Central Trust Co, and Peixeiro, the discoverability principle rests bydefinition on the requirement of due diligence by the plaintiff.

Judicial respect for that requirement is inherent to proper regard for thediligence policy rationale, which underlies limitations statutes. That requirement dictates the test to be applied in determining the start ofa limitation period under the discoverability principle: when can it be said that the plaintiff knew, or by reasonable diligence could havediscovered, the material facts on which to base a cause of action against the proposed defendant?” Zapfe v. Barnes, (ON CA), [2003] O.J. No. 2856 at para. 24 (OCA)

[31] The test therefore is whether the plaintiff had actual knowledge that she may have suffered a serious and permanent injury from the accident, or if she did not, whether she exercised due diligence in investigating the possibility that she had such a claim. [ 32 ] The evidence on this issue appears clear and in my view non-controversial. There are no facts which are unknown to me based on the record. The law is clear that the parties are to put their best foot forward and I may assume that there will be no new or additional information on this issue which will be produced at trial.

This issue will be decided by a judge alone at trial even though at present this is a jury matter. This is not one of those issues that calls for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses found in a voluminous record. [ 33 ] Indeed the defence is relying on the plaintiff’s own sworn evidence at discoveries almost exclusively in this motion. I conclude therefore that this is a case that should be decided efficiently and expeditiously by way of

summary judgment. This is the most cost effective method of resolution of the limitation issue. Plaintiff’s counsel did not disagree in his oral submissions to me.

I am convinced that I have a full appreciation of the evidence to enable me to make dispositive findings to decide the limitation period issue at this time and that a trial is not required on that narrow issue. [ 34 ] I am of the view that any reasonable person involved in an accident such as this who had ongoing and increasing pain from the date of the accident would conclude eventually that she may well have a serious problem which might be permanent.

At the very least a reasonable person in the shoes of the plaintiff, assuming her complaints of pain as she describes them are believed, would conclude that she needed to have her medical situation investigated much earlier than she actually did. [ 35 ] It is not plausible that a reasonable person would consistently take over the counter pain medication for many years for pain she believed was solely caused by the car accident, and yet do nothing further to investigate the cause.

The plaintiff had no difficulty accessing a family doctor for routine matters so her excuse of not investigating further because doctors are hard to find lacks credibility. Likewise, it is implausible that someone could have pain consistently and “really bad” pain 50 percent of the time and do nothing to investigate the cause. Similarly, it strikes me as implausible that a reasonable person who was unable to function a couple of days per month because of pain would make no investigation.

Finally, I find it totally implausible that a reasonable person would find her pain so bad on three occasions that she would have to attend an emergency ward for relief and yet would do nothing further to investigate the reasons when what she was told by the ER doctors turned out to be incorrect. [ 36 ] The plaintiff stated in her application for C.P.P. disability benefits that she had “struggled with back pain for 10 years”. She further listed a number of things of daily living that she had been unable to do since the accident in 2002, such as running, jumping, and climbing and her life was passing her by.

She further reports in her application through her doctor chronic pain.

There are similar narrations by her in various medical reports, the EMG report, along with the transcripts of discoveries and her cross examination of ongoing pain since the accident which was getting worse. [ 37 ] Any one of these facts may not be sufficient for a reasonable person to conclude she did not have a serious permanent problem but the combination of them all, over a number of years where there was no improvement, is conclusive in my view to conclude that the plaintiff’s assertion she did not suspect she had a serious and permanent health problem from the motor vehicle accident is not credible.

She had a duty to investigate, and that duty arose long before May 25, 2009, some 7 years after the accident. Indeed that duty arose in 2005 or 2006 when she first started to attend emergency wards with no subsequent relief. At the very least it arose in November 2008 with her visit to St. Joseph’s Hospital for continued back pain. Conclusion: [37] The

summary judgment motion of the defendants is granted and the action of the plaintiff is dismissed. [ 38 ] If the parties are unable to agree on costs they may file with my trial co-ordinator 3-4 pages of written submissions, double spaced, in addition to any offers and draft bills of costs, within 30 days of the release of this decision. ___________________________ Arrell J. Released: August 9, 2013 CITATION : Yelda v. Vu, 2013 ONSC 4973 COURT FILE NO.: 11-27773 DATE: 2013/08/09

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Valmire Yelda Plaintiff - and – Thi Duyen Vu, also known as Peter Vu, Diane Vu, Selena Vu, also known as Selena Ferreira Vu, or, Ines Vu, Ivo Curzi, and State Farm Mutual Automobile Insurance Co. Defendants REASONS FOR JUDGMENT Arrell J. HSA:mg Released: August 9, 2013