Canada: Using Discoverability Principle Court Extends Commencement Of Running Of Limitation Period Until Plaintiff Receives Chronic Pain Diagnosis In Expert Report

Last Updated: March 16 2015
Article by Marinus Lamers

It is not uncommon for a Plaintiff, in advancing a claim for personal injuries arising from a motor vehicle accident, to rely upon the principle of discoverability to defeat a summary judgment motion brought by a Defendant where the Plaintiff’s claim was issued beyond the presumptive two year limitation period provided for in section 4 of the Limitations Act, 2002.  Such was the case in Pereira v Contardo, 2014 ONSC 6894 What is surprising in the Pereira v Contardo decision is that in applying the discoverability principle, the Court effectively held that the two year limitation period did not begin to run until the Plaintiff had obtained an expert report which diagnosed a permanent, chronic pain condition which could support the applicable threshold of a permanent serious impairment. 

Pereira v Contardo arose from a December 21, 2008 motor vehicle accident, in which the Plaintiff suffered soft tissue injuries to his neck, shoulders and back.  Within two months of the accident the Plaintiff retained legal counsel and applied for Statutory Accident Benefits wherein he reported that his injuries were affecting both his home life and his employment.   Within a year of the accident he was diagnosed with chronic post-traumatic headaches.  In an August 26, 2010 occupational therapist report it was reported that the Plaintiff’s son had taken over the running of the Plaintiff’s business and that the Plaintiff required attendant care valued at over $6,000.00 per month.  Further recommendations were made for an array of medical assessments including the need for an intense pain management program. 

Notwithstanding all of the foregoing, it was not until October 2012 that an expert report was obtained from a pain specialist who diagnosed the Plaintiff as suffering from a chronic pain condition. 

A Statement of Claim on behalf of the Plaintiff was not issued until March 28, 2013, four years and three months after the motor vehicle accident.  In the body of the claim, the Plaintiff pleaded that he could not have reasonably discovered through the exercise of due diligence that his impairments would be permanent until he obtained the expert report. 

A motion was brought on behalf of the Defendant for summary judgment to dismiss the Plaintiff’s action on the ground that it was statute barred.  In bringing the motion, the Defendant put before the Court the Plaintiff’s discovery evidence as well as the various medical records.  The Plaintiff filed no responding material.

In dismissing the motion, the motion judge differentiated between a Plaintiff who knows that they have constant pain and receiving a medical diagnosis of chronic pain that would satisfy the “permanent and serious” threshold criteria and that it was reasonable to delay over three and a half years before seeking an expert opinion.  As a result the motions judge concluded that the action was commenced within two years of the discovery of the claim. 

In a November 27, 2014 ruling, a motion for leave to appeal to the Divisional Court was dismissed by Justice Pernell.  In dismissing the motion, Justice Pernell made three findings of note.

Firstly, the Plaintiff had not failed to put his best foot forward by failing to file any responding material and was entitled to rely upon his own discovery evidence and the medical records which were put before the Court by the Defendant.

Secondly, the Court rejected the defence argument that even if the non-pecuniary general damage claim was not statute barred, the Plaintiff’s economic loss claims, which were not subject to the discoverability of the threshold, were subject to the two year limitation period from the date of the accident and were statute barred.  On this issue the Court held that if the threshold claim was not statute barred then all other claims could proceed likewise. 

That left, as the final issue, whether it was reasonable for the Plaintiff to delay seeking an expert report to support a chronic pain diagnosis and accordingly delay the discoverability of a claim. 

The two primary components needed to establish a threshold satisfying injury are that a Plaintiff’s impairments are both serious and permanent.  One of the hallmarks of a serious impairment is that it substantially interferes with a person’s ability to continue his or her regular or usual employment.  Such appears to have been the case since shortly after Mr. Pereira’s accident, based on his reports to the accident benefit insurer and the report of the occupational therapist.  Permanence requires that an impairment be continuous and lasting indefinitely.  A strong indication of this existed for Mr. Pereira within a year after the accident, as his pain was at such a level that he was incapable of working and he required significant attendant care.  Notwithstanding the foregoing, Justice Pernell concluded that there was no good reason to doubt the correctness of the motion judge’s decision and denied the motion for leave to appeal.

While the receipt of an expert report which provided a chronic pain diagnosis would provide evidence of a threshold satisfying injury, what is not addressed in the decision is why an expert report was required at all in order for the Plaintiff to have sufficient material facts so that a reasonably prudent Plaintiff or Plaintiff’s counsel would have determined that there was a claim that would satisfy the threshold criteria. 

We have no explanation as to why no claim was issued within two years of the date of the accident.  As a practical matter, one of the first steps taken by every prudent Plaintiff’s counsel when first retained to pursue a claim arising from a motor vehicle accident is to note the date of the accident in their limitation date reminder system.  While the principle of discoverability, as set forth of section 5 of the Limitations Act can, in certain circumstances, delay the commencement of the running of the two year limitation period, its applicability is a factual issue with no guarantee of success.  No prudent Plaintiff’s counsel would rely upon the discoverability principle and delay issuing a claim beyond the two year limitation.  The discoverability principle is generally relied upon as a last resort in circumstances where counsel was either not retained until the two year limitation period had already expired, or through inadvertence, had failed to issue a claim within the two year limitation period. 

While we do not know why a more timely claim was not issued, the report does note that in July of 2013, the Plaintiff through new counsel had issued a claim alleging negligence against his previous counsel for failure to issue a Statement of Claim within the two year limitation period.

It is also interesting to note that notwithstanding the defence argument that there ought to have been knowledge that the threshold had been exceeded earlier than receipt of the expert reports, the Defendant in his defence denied that the threshold had been satisfied.  It is somewhat inconsistent to deny that the Plaintiff has a threshold satisfying injury while at the same time seeking to argue that the Plaintiff should have appreciated at an earlier date that he had a threshold satisfying injury sufficient to commence the running of the two year limitation period. 

One can only speculate as to whether the Court might have viewed this matter differently had the Defendant, from the outset, admitted that the injury would satisfy the threshold.  As a matter of tactics, keeping all of your options open is not always the best course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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