|
Limitations Act - Discoverability - General (2). Sanei v. Debarros
In Sanei v. Debarros (Ont CA, 2023) the Court of Appeal considered the personal injury limitations scenario where the plaintiff asserts that 'discoverability' was deferred due to a worsening of the injury over time, here to reach the 'serious and permanent impairment' [IA s.267.5] of auto insurance law:(b) Principles and provisions applied
[15] The appellant pleaded in his statement of claim that his serious and permanent impairment arising from the accident met the statutory threshold under the Insurance Act. The appellant maintains that he did not reasonably know that his injuries had met the statutory threshold or the $30,000 statutory deductible applicable in this case, prior to March 2, 2014, two years prior to commencing his action. He submits that the motion judge erred in failing to make a specific finding as to the date on which the appellant discovered or ought to have discovered that his injuries amounted to a serious and permanent impairment that met the statutory deductible, which marked the start of the limitation period.
[16] I agree that the motion judge failed to make a specific finding of the discovery date, alluding only to a general time period, namely, “within the two-year time period”. As I explain below, I am not persuaded, however, that this error amounted to reversible error that tainted the entirety of the judgment.
[17] First, although he did not mention a specific date for the commencement of the limitation period, the motion judge referenced the correct analysis. He cited to Peixeiro, noting that time under the Limitations Act does not run until it is reasonably discoverable that the alleged injuries meet the threshold within the Insurance Act and that to meet this statutory threshold, the appellant must have a permanent and serious impairment. He correctly instructed himself that discoverability in this context refers to when the appellant first knew or ought to have known that a claim would be an appropriate remedy for the loss.
[18] Moreover, in reading the motion judge’s reasons generously, as I am required to do, the foundation for his decision is clear because he tethers his conclusion to the timing of the evidence of the appellant’s serious and permanent impairment. The evidence relied upon by the motion judge supports the conclusion that the appellant knew or reasonably ought to have discovered that he had a serious and permanent impairment that potentially met the statutory deductible prior to March 2, 2014.
....
[22] I disagree with the appellant’s contention that the limitation period did not start to run as he did not have medical opinions in the form required under s. 4.3 of Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996 (“O. Reg. 461/96”). Accepting without deciding that he did not have medical opinions in the form required under s. 4.3 for the purposes of a threshold motion or trial before March 2, 2014, the appellant, nonetheless, had medical opinions and his own evidence of injuries that were sufficient to trigger the discovery of his claim and the commencement of the limitation period.
[23] Section 4.3 of O. Reg. 461/96 sets out the evidence a plaintiff must adduce, in addition to “any other evidence”, to prove a permanent serious impairment of an important physical, mental or psychological function for the purposes of s. 267.5 of the Insurance Act: s. 4.3(1). The plaintiff’s evidence must include the evidence of one or more physicians: s. 4.3(2) to (4). In addition to the physician’s evidence, the plaintiff’s evidence must include corroborative evidence of the change in function alleged to be a permanent serious impairment: s. 4.3(5). The corroborative evidence may come from the plaintiff: Gyorffy v. Drury, 2015 ONCA 31, 380 D.L.R. (4th) 330, at paras. 33-44.
[24] The evidentiary proof set out in s. 4.3 that a plaintiff is required to produce on a threshold motion or at trial is different from the evidence sufficient to trigger a plaintiff’s discovery of a cause of action and the commencement of the limitation period for bringing an action. When an action progresses, a total absence of medical evidence and a lack of intention to adduce such evidence can be a basis for summary dismissal: see, e.g. Halley v. TTC, 2018 ONSC 6093. However, there is no statutory requirement that a plaintiff must have the exact form of evidence outlined under s. 4.3 to commence an action.
[25] As this court stated in Everding, at para. 11, “[c]learly it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have a substantial chance to succeed in recovering a judgment for damages” (emphasis added). A physician’s evidence that meets the strict and elevated requirements in s. 4.3 is not necessary for a plaintiff to have reasonable knowledge of a substantial chance of success. Delaying the commencement of a limitation period until a plaintiff obtains a physician’s evidence in the particular form required by s. 4.3 would “move the needle too close to certainty”, which is not the standard required to trigger discovery of a claim and the commencement of the limitation period: see, e.g., Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at paras. 47-48, citing K.L.B. v. British Columbia, 2003 SCC 51, [2003] 3 S.C.R. 403, at para. 55.
[26] In this case, the appellant had his own self-reports, as well as medical opinions obtained prior to March 2, 2014, that are consistent with the later medical opinions. He filed his statement of claim based on what he knew as of March 2, 2016. At the very latest, by December 19, 2013, he had Dr. Azadian’s report that stated he had a serious psychological disorder, which triggered the limitation period. Though the specific forms of evidence the appellant had to support his claim continued to develop, the record indicates that he had equivalent knowledge supporting the same substantial chance of success more than two years earlier.
[27] In my view, this body of evidence was sufficient to trigger the commencement of the limitation period. . Sanei v. Debarros
In Sanei v. Debarros (Ont CA, 2023) the Court of Appeal considered basics of the limitations 'discovery' doctrine:(a) General principles and statutory provisions
[10] The limitation period in an action for personal injuries arising out of a motor vehicle accident starts to run when the claimant knows, or reasonably ought to have known, that their injuries meet the statutory deductible and threshold of serious and permanent impairment under s. 267.5 of the Insurance Act: Everding v. Skrijel, 2010 ONCA 437, 100 O.R. (3d) 641, at paras. 9-11; Fennell v. Deol, 2016 ONCA 249, at para. 28.
[11] Section 5 of the Limitations Act defines discoverability as follows:5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. [12] To overcome the presumption in s. 5(2) of the Limitations Act, a person with a claim need only prove that they did not know of their permanent and serious impairment on the date of the accident, not that they exercised due diligence: Fennell, at para. 26. Where this presumption is rebutted, the limitation period begins to run on the earlier of the two dates contemplated in s. 5(1)(a) and (b): Fennell, at paras. 20-21. Unlike s. 5(2), s. 5(1)(b) imports the “reasonable person” standard and requires consideration of whether the claimant exercised due diligence: Fennell, at paras. 22-24.
[13] As this court instructed in Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at para. 30, in considering reasonable discoverability of a claim, “[t]he court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined.” Moreover, it is insufficient for the court to say that the claim “was discoverable ‘before the expiry of the limitation period’, without explaining why”: Morrison, at para. 30.
[14] A new medical imaging result or a specific diagnosis can constitute evidence necessary to support a claim for serious and permanent impairment, especially where the impairment worsens over time or where the initial prognosis was that symptoms would improve: see e.g., Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 43; Dubreuil v. Lalande, 2014 ONSC 7433, at para. 19; Rockford v. Haque, 2019 ONSC 474, at para. 24. However, when there is no evidence of a change in the plaintiff’s condition, delayed discovery of a permanent impairment may instead be because they failed to make reasonable inquiries: Yasmin v. Alexander, 2016 ONCA 165, at para. 12.
|
