It has been said that hard facts are apt to introduce bad law.
This may occur when judges are asked to exercise their discretion
to provide relief to a party facing severe consequences. An example
of this might be a plaintiff who faces a motion for summary
judgement dismissing the claim as statute-barred. Such was the fate
of Ms. Landrie who sustained injuries in a slip and
fall on November 19, 2008. Ms. Landrie retained counsel who
commenced an action on November 22, 2010. Unfortunately, she
mistakenly provided her counsel with the incorrect date of the
The Action was commenced two years and 3 days after the
occurrence. Ms. Landrie had therefore missed the two-year
limitation period within section 4 of the Limitations Act,
20022] ("Act"), which
expressly provides that no action shall be commenced after the
second anniversary of the day on which the claim was discovered.
Having realized their mistake, counsel amended their pleadings to
include a claim that, while she was in hospital, Ms. Landrie was an
"incapable person" pursuant to section 7(1) of the
Act. Section 7(1) states that the limitation
period does not run when the claiming party "is incapable of
commencing a proceeding... because of his or her physical, mental
or psychological condition."
Importantly, the operation of section 7(1) is contingent upon
the reverse-onus provision within section 7(2), which requires
that, "A person shall be presumed to have been capable of
commencing a proceeding in respect of a claim at all times unless
the contrary is proved (emphasis added)."
Therefore, Ms. Landrie faced the burden of proving that she was
entitled to have the two-year limitation period tolled by three
days because she had been in hospital for roughly 15 days
immediately following her fall.
Ms. Landrie's claim appeared to be in jeopardy as it was
clearly brought out of time. Authorities such as the Ontario Court
of Appeal's decision in Deck International Inc. v. The Manufacturers
Life Insurance Company, 2012 ONCA 309 indicate that the
parties are expected to provide some form of medical evidence to
prove incapability. However, what constitutes "proof" is
within the courts' discretion, and Ms. Landrie would ultimately
benefit from that discretion.
In his decision, Justice Perell stated that despite the reverse
onus on the plaintiff, the burden in section 7 is, in fact,
"more liberal and generous" than the repealed
section 47 of the Limitation Act.
Section 47 required the plaintiff to be a "minor, mental
defective, mental incompetent or of unsound mind" in order to
toll the limitation period. With this relaxed onus in mind,
Justice Perell found that Ms. Landrie had proven that she was
incapable of commencing the proceeding on time because of her
physical and mental state while in the hospital.
Justice Perell then employed the recent decision in
Hryniuk, (2014 SCC 7) to decide in Ms. Landrie's favour, by
summary judgement. Importantly, the decision was based
primarily on affidavit evidence of Ms. Landrie and neither side
presented expert medical evidence. The decision is remarkable for
the paucity of objective and corroborative evidence. What is
prominently featured in the decision is that Ms. Landrie did
require medical attention during the weeks immediately following
the incident and her claim was only 3 days out of time. These facts
appear to have motivated Justice Perell to exercise his discretion
in her favour. Despite being the moving party, the Defence not only
lost the motion for summary judgement, but is now unable to address
the limitation at trial on the full evidentiary record.
It is possible that Landrie could signal a movement
towards a relaxed interpretation of section 7(1)'s
requirements. It is also possible that Landrie is part of
a larger movement towards the utilization of summary judgement as a
gatekeeping adjudicative option. However, it is more likely that
the decision in Landrie was specific to its facts and
their amenability to a form of "common sense justice".
Regardless, defendants in personal injury cases should be aware of
the potential impact of Landrie. Prudent defence counsel
should ensure that they bring their best case forward when moving
for summary judgement of a statute-barred claim or risk losing the
ability to argue the issue at trial.
 Landrie v Congregation of the Most Holy Redeemer, 2014 ONSC
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