By: Deborah Ikede, Associate Lawyer
Preface
A recent decision from Ontario’s Court of Appeal re-examined the two-year limitation period within the context of a personal injury action. The Court upheld the dismissal of the Plaintiff’s action, finding that his action was statute-barred as it was commenced beyond the applicable two-year limitation period. The Court held that the preponderance of evidence produced by the Plaintiff established that he reasonably knew or ought to have known about his injuries more than two-years before he started the action.
Facts
On February 2, 2013, the Plaintiff was injured in a motor vehicle accident. On March 2, 2016, he commenced an action against the Defendant. In his statement of claim, the Plaintiff claimed several hundred thousand dollars in damages for the “permanent and serious injuries” that he alleged were caused by the accident. He also alleged that he did not discover “until recently” that his injuries would meet the threshold contained within in the Insurance Act, R.S.O. 1990, c. I.8.
The Defendant stated, amongst other things, that the action was statute-barred. She subsequently brought a motion for summary judgment seeking to dismiss the action.
The motion judge allowed the Defendant’s motion and struck the Plaintiff’s claim, concluding that the medical evidence and the Plaintiff’s own evidence of his injuries allowed for him to know that he “had serious and permanent injuries discoverable well within the two-year limitation period.”
Analysis
The Court of Appeal re-examined the general principles and statutory provisions of discoverability relating to when a Plaintiff who has suffered personal injuries as a result of a motor vehicle accident knows, or reasonably ought to have known, that they have a viable claim for damages as their injuries meet the statutory deductible and threshold of a serious and permanent impairment.
When considering the reasonable discoverability of a claim, the court must be satisfied that a reasonable person in the plaintiff’s circumstances would have discovered the claim. 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. However, when there is no evidence of a change in the plaintiff’s condition, delayed discovery of a permanent impairment may instead be because the claimant failed to make reasonable inquiries.
The Court of Appeal found that while the motions judge did not mention a specific date for the commencement of the limitation period, the motion judge correctly tethered his conclusion to the timing of the evidence which supported 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.
The court noted that the motion judge detailed the uncontroverted evidence that recounted the consistent history, severity and permanence of the appellant’s injuries following the accident. This evidence detailed physical and psychological injuries and included the appellant’s self-reports of his injuries to the various physicians and psychologists who examined him for insurance purposes, and to his own family doctor, and the appellant’s evidence on his examination for discovery.
The court found that these were the same injuries particularized as serious and permanent in his statement of claim, for which he claimed hundreds of thousands of dollars well in excess of the statutory deductible. Importantly, the evidence did not establish any change in the appellant’s condition.
The Court of Appeal rejected the Plaintiff’s argument that the limitation period should begin when he obtained a medical opinion in the form set out in Section 4.3 of O. Reg. 461/96. It held that the evidentiary proof as set out in s. 4.3 outlining what a plaintiff is required to establish 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. 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.
In this case, the Plaintiff was found to have made self-reports, as well as medical opinions obtained prior to March 2, 2014, that were consistent with the later medical opinions. At the very latest, by December 19, 2013, he had a doctor’s report that stated he had a serious psychological disorder, which would have triggered the discovery of the potential cause of action. While the specific evidence that the Plaintiff had to support his claim for damages continued to develop, the productions indicate that he had equivalent knowledge supporting the viability of a cause of action more than two years before he issued the Claim. Thus, this body of evidence was found to be sufficient to satisfy the discoverability principle.
Recommendations When Attempting to Enforce a Limitation Period
It has historically been quite challenging in personal injury actions following a motor vehicle accident for a defendant to establish that a claim is statute barred by virtue of falling outside the prescribed limitation period. The bar is even higher if a defendant is seeking to have the claim struck by way of summary judgment motion as it is very hard to establish that there is no genuine issue requiring a trial. But this recent decision from the Court of Appeal suggests that it is in fact possible in the right circumstances and with the right medical evidence.
It is not enough for a defendant to simply state the claim should have been discoverable within the two-year limitation period. Rather, the defendant must conclusively establish that the claim was in fact discoverable by the plaintiff or by a ‘Reasonable Person’ more than two years prior to the issuance of the claim to support the request for relief. While being successful is likely to remain quite challenging, a very significant quantum of time and costs will be saved if a defendant is able to establish that the claim ought to be dismissed for being commenced outside of the applicable limitation period.
Consequently, defendants are encouraged to undertake a thorough investigation that involves collecting as much medical evidence as possible to sufficiently establish what the plaintiff knew or ought to have known and when. This ought to involve securing the clinical notes & records of all treating doctors and therapists, the decoded OHIP summary, the plaintiff’s accident benefits file and the extended health benefits file, amongst other productions. Once these records are in hand, a properly informed cost benefit analysis can be performed on whether it is worthwhile to advance a summary judgment motion.