Canada: ONSC Dismisses Limitation Period Motion

Last Updated: March 12 2014
Article by Daniel Strigberger

The Ontario Superior Court has released a summary judgment decision in a motor vehicle accident tort action dealing with a limitation period issue. The decision appears to be the first of its kind since the Supreme Court of Canada's decision in Hryniak v. Mauldin.

In Huang v Mai, the plaintiff was injured on October 15, 2007 when her bicycle was struck by the defendant's motor vehicle. About 21 months after the accident, on June 17, 2009, the defendant advised her Ontario Works caseworker that she might seek compensation for the injuries she had suffered in the accident. The next month, on July 9, 2009, she retained a lawyer, and on July 16, 2009, he sent the defendant a letter giving notice of the plaintiff's claim for damages. He also put the defendants` insurer on notice of the claim.

After taking on the file, the plaintiff's lawyer obtained a variety of reports of medical and other examinations that had occurred during 2008 before his retainer (apparently insurer examinations for her accident benefits claims). None of the reports seemed to suggest the plaintiff's injuries were serious.

On December 18, 2009, the Statement of Claim was issued. The plaintiff's lawyer had intended to issue the Statement of Claim within two years of the motor vehicle accident, but he failed to properly diarize the two-year anniversary of the accident. The Statement of Claim was 63 days late.

The defendants moved for summary judgment to dismiss the action on the basis that the plaintiff missed the two-year limitation period to issue an action, pursuant to the Limitations Act, 2002. The defendants submitted that that there was no genuine issue requiring a trial and that the plaintiff's action was untimely because her lawyer, who admitted to having intended to issue a Statement of Claim within two years of the accident, negligently failed to do so.

The evidence at the motion was that in 2011, the plaintiff's lawyer obtained a report from Dr. Michael West of August 30, 2011. Dr. West opined that the plaintiff suffered an impairment which impacted on essentially all of her activities of daily living and has caused her to suffer a significant overall diminution in her quality of life. The plaintiff lawyer's opinion was that the medical evidence was insufficient to persuade a judge that the plaintiff had sustained an injury that met the threshold requirements of s. 267.5(5) of the Insurance Act until he received Dr. West's report in 2011.

Mr. Justice Perell dismissed the defendants' summary judgement motion. His analysis on this issue (starting at paragraph 26) is worth the read.

Justice Perell referred to the Supreme Court's landmark ruling in Hryniak, wherein the Supreme Court held that on a motion for summary judgment under Rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers enacted when Rule 20 was amended in 2010. Justice Perell wrote:

I take the Supreme Court as directing the court on a summary judgment motion to use the approach that existed before Rule 20 was amended and to determine first whether there is a genuine issue requiring a trial about when Ms. Huang discovered or ought to have discovered that she had a claim against the Defendants that might satisfy the Insurance Act threshold.

This analysis should be done without using the enhanced fact-finding powers available under rules 20.04 (2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure, under rule 20.04(2)(a).

...

Applying the approach mandated by Hryniak v. Mauldin, if, however, there appears to be a genuine issue requiring a trial, then second the court should determine if the need for a trial can be avoided by using the new powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

In other words, Justice Perell held that on a motion for summary judgement in a motor vehicle accident tort claim, involving a limitation period issue (post Hryniak), the motions judge:

  1. Must decide whether there is a genuine issue requiring a trial about when a plaintiff discovered or ought to have discovered that she had a claim against the defendant that might satisfy the Insurance Act threshold:
  2. If there is a genuine issue, the judge must decide whether the need for a trial can be avoided using the new powers under rules 20.04 (2.1) and (2.2).

In this matter, Justice Perell reviewed the prior caselaw on limitation periods and the threshold issue. He found that there was a genuine issue requiring trial as to when the plaintiff first discovered that her injuries met the threshold. He also found that the new powers under Rule 20 would not avoid the need for a trial:

In the case at bar, Ms. Huang obviously believed that she had a claim that ought to be pursued when she retained a lawyer in the summer of 2009, but her lawyer's professional opinion was that there was not sufficient medical evidence to have a reasonable chance of persuading a judge that the Plaintiff had sustained an injury that met the requirements of s. 267.5 (5) of the Insurance Act. Sufficient evidence was not obtained until the report of Dr. West dated August 30, 2011 was received.

If [plaintiff's lawyer's] view is correct, which is a genuine issue requiring a trial, then Ms. Huang's action commenced in 2009 was not late but rather premature until perhaps as long as 2011.

These limitation period issues are always fact specific, but it will be interesting to see how judges will be dealing with similar motions in light of Hryniak.

See Huang v Mai , 2014 ONSC 1156 (CanLII)

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