Limitation Period Expired – Discoverability Principle Not Applicable

In Muirhead v. Coulas [2011] OJ No. 4908 (S.C.J.), the defendants moved for summary judgment dismissing the action as statute barred. The action arose from a slip and fall in July 2005 and a claim was not commenced until July 2010.

The plaintiffs took the position that the limitation period did not begin to run until June or November 2009 when two medical opinions were received following another slip and fall in February 2006 when the plaintiff injured her same knee. They claimed that it was not until they received these reports that they discovered the 2005 injuries were ongoing and permanent.

The defendants took the position that there was no issue with respect to discoverability as the plaintiff knew she hurt her knee and she underwent surgery on her knee three days later and was unable to work for several months following.

Justice Mackinnon held that the defendants met their initial burden as they had led evidence that the plaintiff knew of her injury, it was serious enough to require surgery, she could not walk for two months after, she still had pain and restriction in movement six months later and had not been able to return to work by then. Justice Mackinnon also relied on section 5(2) of the Limitations Act , 2002 which sets out a presumption that a plaintiff has the requisite knowledge as of the day the act took place, “unless the contrary is proved”.

Addressing the plaintiffs’ submission that a proceeding would not have been an appropriate means to remedy the injury sustained as the plaintiff believed her injuries were resolving and would not be permanent, Justice Mackinnon stated that section 5(1)(a)(iv) “does not amount to a bar to an action for recovery in tort” and held that the cause of action was complete, even if the complete extent of damages was not fully known.

Justice Mackinnon agreed with the plaintiffs’ submission that an individual should not be required to commence an action where there is no reasonable prospect of recovery, but found there to be no such facts in the case at hand.
In response to the plaintiffs’ submission that the true nature of the loss from the 2005 slip and fall was not knowable until after the second incident, Justice Mackinnon held that the plaintiff clearly had a claim arising from the first incident and “the facts learned subsequently that the injury was permanent and contributed to her current severe condition may have been a basis to increase the quantum of damages sought but is not a new or different claim”.

Lastly, the plaintiffs attempted to rely on cases that extended the running of the limitation period because a medical opinion was required in order to know whether a cause of action existed. Justice Mackinnon pointed out that in all of these cases, the court had referred to the requirement that the plaintiff acted with due diligence in acquiring facts in order to be fully apprised of all material facts upon which a negligence claim can be based, including being diligent in requesting and receiving a medical opinion, if required. The plaintiffs in this case did not provide evidence as to why they did not seek out the medical reports sooner that were ultimately obtained in 2009. Also, there was evidence to suggest that there was an operative report available in March of 2007 that the plaintiffs did not request until later.

It was held that there was no genuine issue requiring a trial.

- Kristen Dearlove, Student-at-Law

Sheikh v. Pinheiro 2011 ONSC 6143

We thank M. Edward Key of O’Donnell, Robertson & Sanfilippo for this contribution to our blog.

The plaintiff was going westbound in her vehicle and the defendant taxi driver was travelling northbound in his taxi. They collided at an intersection. The defendant taxi then went on to collide with a southbound vehicle. That southbound vehicle did not collide with the plaintiff’s vehicle.

None of the drivers appeared to be hurt. They all went to the same Collision Reporting Center and filled out very detailed collision reports. There was no question who was driving what vehicle.

On the second anniversary of the collision, the plaintiff brought an action against the driver of the southbound vehicle, believing that he was the taxi driver. Essentially, the plaintiff got the other two drivers confused.
Two years after that (i.e. four years after the collision), the plaintiff commenced a separate action against the real taxi driver after realizing the mistake.

The taxi driver brought a motion for summary judgment on the basis that the action was limitation barred.

The plaintiff argued that there was a genuine issue regarding when the plaintiff knew or ought to have known the true identity of the driver that hit her vehicle. The motion judge made short work of that argument. In particular, for strategic reasons, the plaintiff did not swear an affidavit regarding the state of her personal knowledge of the issues, and the motion materials only included affidavits from their lawyers. The judge determined that the information was readily available in the form of the Self Collision Reports.

Alternatively, the plaintiff argued that there was a genuine issue for trial on the basis that she could not "discover" that her injuries were likely to satisfy the Insurance Act threshold until 2 years before she started the second action.
The motions judge rejected the plaintiff's argument. The trial judge considered that the medical evidence was clear that it was "reasonably discoverable" that the plaintiff's injuries met the threshold more than two years before the second action was commenced.

The motion judge looked not only at medical reports, but also relied on the fact that the first Statement of Claim (issued exactly 2 years after the accident) alleged that she sustained "serious and permanent injuries." The motion judge stated at paragraph 47 of his reasons that, "While this action was mistakenly directed against the wrong defendant, this assertion by the plaintiff in the Statement of Claim is akin to an admission that, by at least that time, if not earlier, the plaintiff viewed her injuries from the accident as serious and permanent, and that they had thereby discovered their potential cause of action."

Discoverability - Identity of Vehicle Owner

After determining vehicle ownership, is counsel required to continue looking for contrary information?

Velasco v. North York Chevrolet Oldsmobile Ltd., [2011] ONCA 522 (C.A.), involves a car accident that occurred in 2005. The appellant’s vehicle was struck by two other vehicles. The ownership of the one vehicle (the “Denyer vehicle”) is the subject of this appeal.

The appellant issued a statement of claim in 2006. Counsel relied on a statement in the police report to determine that Denyer was the owner of the Denyer vehicle. This belief was confirmed later that year by way of the pleadings delivered by Denyer’s insurer stating that Denyer was the owner of the vehicle.

Early in 2007, counsel for the appellant received a 732 page Crown Brief that contained a license plate search which showed that Denyer was not in fact the owner of the vehicle. This search did not come to the attention of counsel until two years later when preparing for discoveries. At that time, a statement of claim was issued against the respondents on the basis of their ownership.

The respondents brought a motion to dismiss the claim against them on the basis that the limitation period had expired. The motion judge held that counsel for the appellant should not have closed their minds to the ownership issue and should have reviewed the Crown Brief promptly to settle that issue.

The Court of Appeal disagreed with the motion judge and held that counsel had acted with reasonable diligence in continuing to rely on the initial information they had received “until contrary information actually came to their attention”. The court did not find a duty on counsel to positively search for contradictory information after they were satisfied as to the ownership.

Thanks to our articling student, Kristen Dearlove, for this post.

The discoverability principle in third party claims

White v. Mannen, 2011 ONSC 1058 (S.C.J.)

This was a motion by the third party, Brant County, for summary judgment on the basis that the action against it was commenced out of time.

The main action arose out of a motor vehicle accident that occurred on May 22, 2004. The plaintiff was a passenger in the defendant's vehicle, which crested a hill and swerved to avoid a parked car, leaving the roadway and striking a tree. In the third party claim, the defendant alleged the road and hill obstructed his view.

The claim was issued December 2, 2005 and served on the defendant February 21, 2006. The third party claim was issued September 24, 2009. The defendant argued that it was only after examinations for discovery and receipt of an engineering opinion that he discovered he had a cause of action against the municipality.

Justice Gordon conducted a useful review of the case law with respect to discoverability, and specifically the due diligence required: a party must only learn of sufficient facts upon which to commence a claim and need not be in a position to prove it. Legal advice or an expert opinion is not necessarily required, and an examination for discovery may not be required. In resisting a motion for summary judgment, the responding party must address the due diligence requirement and provide full disclosure.

Justice Gordon held that the defendant knew at the time of the accident that there was restricted visibility on the hill. The failure of the defendant to tender evidence on due diligence was fatal to his position. The third party claim was well out of time and was dismissed.

This decision is a good review of the principles pertaining to discoverability and should be reviewed both by those pursuing third party claims and those defending them.