This summary judgment motion brought by the defendants under Rule 20 of the  Rules of Civil Procedure is a decision regarding the validity of a claim of a psychologically injured plaintiff not physically present at the scene of the incident.

Facts

The claim subject to this summary judgment motion arose as a result of a motor vehicle collision that took place on September 12, 2014, near Hamilton, Ontario.

The plaintiff was not directly involved in the accident; rather, the plaintiff's daughter was rear-ended at a red light.  Immediately following the collision, the plaintiff received a phone call from her daughter, who was trapped in the vehicle and panicking.  The plaintiff listened and attempted to assist in any way she could.  All the while, the at-fault driver was allegedly behaving in a threatening manner with a complete lack of care for the plaintiff's injured daughter.

The plaintiff's daughter apparently suffered catastrophic injuries and launched an action in 2016, in which the plaintiff also claimed damages pursuant to the Family Law Act.

However, in 2018, the plaintiff was diagnosed with post-traumatic stress resulting in psychological symptoms.  Over five years after the accident, the plaintiff commenced an action claiming damages for psychological injury.  The plaintiff alleged she was "present at the scene of the accident... by means of a mobile telephone." In other words, she "witnessed the immediate aftermath of the collision auditorily", and that caused psychological injuries which have interfered with the plaintiff's ability to work and carry on normal activities of daily living.

The defendants moved for summary judgment, asserting that the plaintiff has no cause of action, and even if she does, the action is barred by the Limitations Act.

Does the plaintiff's claim have no cause of action?

The Court assessed whether it was possible for the defendant to owe the plaintiff a duty of care.  The Supreme Court of Canada in  Mustapha v Culligan established there is no distinction between psychological and physical injury and both are actionable.  The Labrosse  decision turned on the foreseeability of said psychological injury, with the Court stating that it would appear "farfetched to include a person phoned by an accident victim in the same class as a person who is present at an accident."

The Court noted a) there is a body of law in which courts have refused to award damages in these circumstances, and b) the plaintiff was unable to point to any decision which recognized a duty of care to a person who is an "auditory witness."

However, the Court held that just because such a duty has not yet been recognized, this does not mean a robust evidentiary basis will not lead a trier of fact to find a novel duty of care.  On this ground, the Court, therefore, found that this being a novel case, it may require nuanced findings of fact that are genuine issues best resolved at trial, noting that ruling out the possibility of liability on summary judgment may not be appropriate.

Is the plaintiff's claim barred by the Limitations Act?

With respect to discoverability, the defendants asserted that the claim being commenced five years since the motor vehicle collision bars the action for falling outside the 2-year limitation period per the Act.   The plaintiff claimed that it was only in February 2017 that she first began to realize her own psychological injury and began to consult with a lawyer with respect to accident benefits.  It was in September 2018, after she was assessed by a psychologist, that she realized she may have sustained an injury that may be recoverable in tort.  Because the defendant could not cast doubt on the plaintiff's evidence on this motion, the Court held that the date of discovery is a genuine issue to be determined at a trial.

Conclusion

In dismissing the defendants' summary judgment motion, MacLeod J. remarked:

[41] In conclusion, this is not a case that can be dismissed at this stage on a summary judgment motion.  It is conceivable that a trial judge could find that the plaintiff falls within a class of individuals to whom the defendant owed a duty of care.  It is possible that the plaintiff's injuries could be found to be factually and legally caused by the accident.  It is plausible that the date when the claim was discovered was the date on which she received the psychological and legal opinions referred to in her affidavit.  She is a long way from establishing the foregoing, but she has tendered sufficient evidence to show that she has a chance of doing so.

[42] As a consequence, the test in Rule 20 is not met.  There are several genuine issues to be adjudicated and they cannot appropriately be resolved on the material now available.  The motion is dismissed.

What this means? 

There are a number of tidbits to come out of this decision.  Firstly, the Court leaves open the possibility of finding a novel duty of care for a plaintiff as an "auditory witness."  Secondly, the Court alluded to the numerous potential hurdles the plaintiff faces, not only with the novel claim but also with the limitations defence.  In any event, the judicial commentary of MacLeod J. can only serve to benefit the plaintiff in addressing the limitations issue at trial or any obstacles in the finding of liability.  This is a case that plaintiff counsel will want to keep an eye on as it progresses through the courts.

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