2017 ONSC 5458, 2017 ONSC 5458

CITATION : Malyavina v. Akanda , 2017 ONSC 5458 COURT FILE NO.: 16-69897 DATE: 2017/09/07 COURT OF ONTARIO SUPERIOR COURT OF JUSTICE RE: Rubaiyat Malyavina, Plaintiff AND: Petro Akanda, Defendant BEFORE: Mr. Justice Calum MacLeod COUNSEL: Miryam Gorelashvili and L. Craig Brown, for the Plaintiff, responding party Joseph W. L. Griffiths, for the Defendant, moving party HEARD: September 7, 2017 ENDORSEMENT [ 1 ] The parties move for

summary judgment on the question of the limitation period. This question arises because the motor vehicle accident in which the plaintiff was allegedly injured took place in December of 2012 but the action was not commenced until September of 2016. [ 2 ] Pursuant to s. 4 and 5 of the Limitations Act , 2002, S.O. 2002, c. 24, Sched. B, the limitation period of two years begins to run from the date on which the “claim was discovered”. There is a presumption that the date of discovery is the date of the accident but in motor vehicle cases, because of the threshold (s. 266 of the Insurance Act ) the provisions of s. 5 (1) (

a) and (

b) would not necessarily be satisfied until it was apparent, or should have been apparent by the exercise of reasonable diligence, that the injury was of a permanent nature that might reasonably be the basis for a viable tort action. See Yelda v. Vu, 2013 ONSC 4973 at paras 28-30 , summarizing the law in this area. [ 3 ] As Justice Perell noted in Farhat v. Monteanu , 2015 ONSC 2119 , it is ironic that the threshold requirements built into the Insurance Act have also resulted in uncertainty concerning the expiry of limitation periods.

As he stated in para 39, “the limitation period only begins to run when a sufficient body of information is available to determine whether the plaintiff has a claim that may meet the threshold.” I also agree with Justice Perell’s decision in Pereira v. Contardo , 2014 ONSC 6894 at para. 65 , that there are not different limitation periods for pecuniary and non-pecuniary loss.

The running of the limitation period in motor vehicle cases in Ontario does not begin to run until it is clear that a tort claim is likely to survive a threshold motion and exceed the deductible and the collateral benefits. [ 4 ] The evidence before me shows that up to and including the sonogram in October 2014, the plaintiff was consistently being told by her medical practitioners that the pain should resolve. In fact, she received similar advice in October of 2014. In addition, the assessment of her case by her accident benefit carrier was that it remained within the minor injury guidelines.

She did however know as of October 2014 that she had a “partial thickness tear of the subscapularis tendon” and “possible bursitis.” [ 5 ] It was not until September of 2016 that she ceased working because according to her evidence the pain had become intolerable and resulted in inability to work. Given the

definitions in s. 4.1 and 4.2 of Regulation 461/96, it is arguable that only then in September 2016 did the cause of action fully accrue.

For purposes of this motion however, I accept that a court could conclude the cause of action would have been apparent with the exercise of reasonable diligence in October of 2014 because there is no evidence of any diligence between that date and the date she left her employment and started this action. [ 6 ] If the cause of action was discovered in October of 2014, the action was commenced within the limitation period. [ 7 ] The defendant argues that the plaintiff has the statutory onus under the Act to displace the presumption and the evidence she puts forward is little more than a series of assertions unsupported by comprehensive clinical notes or other detailed corroborating documents.

He suggest that the plaintiff has therefore failed to put her best foot forwards and negative inferences may be drawn. [ 8 ] There are several answers to this. It is the case that the plaintiff has the statutory onus to displace the presumption but as I have indicated above, that is relatively simple in motor vehicle cases. More importantly, in a

summary judgment motion, the onus is on the moving party and never changes. Nor is the inference in Rule 20.02 automatic. The defendant therefore has the onus of showing that the limitation period has expired and there is no genuine issue requiring a trial because the plaintiff could not meet the onus imposed by the Act . I am satisfied by the plaintiff’s evidence that it is genuinely possible that a court will conclude the limitation period only began to run in October of 2014 or even September of 2016.

[ 9 ] I am not however able to grant

summary judgment to the plaintiff. This is because the evidence of severity of the injury, continuity of the injury, threshold, discoverability and causation is intertwined. There are genuine issues requiring a trial and in the circumstances of this case with the limited evidentiary record currently available it would be unproductive to attempt to make binding findings of fact. [ 10 ] On the facts of this case and given the preliminary stage in the litigation, this case is similar to Phung v. Mais , 2012 ONSC 7153 and not Yelda v. Vu , supra. [ 11 ] In conclusion, the motion for

summary judgment is dismissed. [ 12 ] I will entertain written submissions on costs if counsel are not able to agree within 30 days. Mr. Justice Calum MacLeod Date: September 7, 2017 CITATION : Malyavina v. Akanda , 2017 ONSC 5458 COURT FILE NO.: 16-69897 DATE: 2017/09/07 ONTARIO SUPERIOR COURT OF JUSTICE RE: Rubaiyat Malyavina, Plaintiff AND Petro Akanda, Defendant BEFORE: Mr. Justice Calum MacLeod COUNSEL: Miryam Gorelashvili and L. Craig Brown, for the Plaintiff Joseph W. L. Griffiths, for the Defendant ENDORSEMENT Mr. Justice Calum MacLeod Released: September 7, 2017