Discoverability and Threshold in a Summary Judgment Motion – Two Years From When? by Nathan Fabiano
Feb 27, 2020
On June 22, 2013, the plaintiff was involved in a motor vehicle accident. As a result of the accident, the plaintiff suffered various injuries, including a broken thumb. His broken thumb required surgery. A metal plate and hardware was implanted into the plaintiff’s dominant hand.
A few days after the accident, the plaintiff saw his family doctor. The plaintiff’s wrist was in a cast from his surgery. The plaintiff reported multiple soft tissue injuries.
On July 29, 2015, the plaintiff issued a Statement of Claim
Under section 4(1) of the Limitations Act, a person loses the right to sue for a claim two years after they “discover” the right to assert a claim.
Under section 5(2) of the Limitations Act, a plaintiff injured in a car accident will be presumed to have discovered their claim on the day of the accident, unless they can prove that they did not discover the claim that day and that a reasonable person with their abilities and in their circumstances would not have discovered the claim until a later time.
In Ontario, a person injured in a car accident can only sue for non-pecuniary losses if the accident caused them to suffer a threshold surpassing injury which is defined as a “permanent serious impairment of an important physical, mental, or psychological function”.
If a plaintiff cannot prove that their injuries meet threshold, their claim for non-pecuniary loss will be dismissed.
In Ontario, for the limitation period to start running, in an action in relation to a motor vehicle accident where pecuniary and non-pecuniary damages are claimed, the plaintiff must have known or ought reasonably to have known that he or she could likely meet the threshold [Ioannidis v. Hawkings, 1998 CanLII 14822 ONSC].
The question of when the limitation period begins to run is a question of fact [Farhat v. Monteanu, 2015 ONSC 2119 (CanLII) at para 33]. It requires the finding of a date when a plaintiff knew or ought reasonably have known that he had a reasonable chance to prove that he suffered a permanent serious impairment of an important physical, mental, or psychological function as a result of the car accident.
If the limitation period commenced on the day of the accident, the plaintiff would have had until June 22, 2015 to issue his action. The plaintiff issued his action 37 days later, on July 29, 2015.
The defendants moved for summary judgment dismissing this action, arguing that the action was commenced outside of the two-year limitation period.
The issue to be determined was whether or not the plaintiff knew or ought to have known that he had a reasonable chance to prove that he would surpass threshold as a result of the car accident, in the 37 days between the date of the accident and July 29, 2013 (two years before the plaintiff issued his Statement of Claim).
The defendants argued that having a metal plate surgically implanted in the thumb of one’s dominant hand obviously has a reasonable potential to seriously and permanently impair an important function. Because of this, they took the position that the limitation period ought to have commenced on the day of the plaintiff’s surgery, and therefore the plaintiff issued his claim outside of the limitation period.
The defendants also argued that the plaintiff failed to prove that he asked any doctor whether his injuries were likely to permanently seriously impair an important function right up to the time the claim was issued. As such, the defendants argued that the plaintiff cannot meet his burden to show that he acted with diligence as required to rebut the presumption in section 5(2) of the Limitations Act.
The plaintiff conceded that he knew or ought to have known that his injuries were serious during the 37-day pre-limitation period window. However, he argued that there was no indication in the medical records from that period that his injuries would be permanent, or that they would impair an important function permanently.
Analysis and Conclusion:
Justice Myers took issue with the lack of evidence provided.
Justice Myers held that the defendants did not adduce enough evidence to establish on a summary judgment motion, that a reasonable person, in the first 37 days after the motor vehicle accident, suffering injuries like those of the plaintiff, would likely know that they are likely to meet the threshold.
Justice Myers also held that the evidence provided was not sufficient enough to allow him to conclude if a reasonable patient 37 days into treatment ought to have been asking his doctor for a long term prognosis about serious impairment of important functions.
He also held that there was not any evidence to allow him to weigh or conclude whether a reasonable personal injury lawyer ought to have been seeking reports from the doctors about threshold issues within the 37-day pre-limitation period window.
For these reasons, Justice Myers dismissed the motion.
This case demonstrates the interplay of discoverability and threshold. Justice Myers’ decision supports the principle that the limitation period begins to commence on the day that a reasonable person suffering injuries like those of the plaintiff would likely have known that he or she is likely to meet the threshold.
This case also provides interesting evidentiary implications for summary judgment motions of this type.
Although section 5(2) of the Limitations Act places a burden on the plaintiff to prove that they could not have reasonably discovered their claim during the time period in dispute, this case suggests that an evidentiary burden also rests with the defendant.
The only evidence Justice Meyers was provided with were the medical records of the plaintiff. There was no competing evidence or opinions for him to prefer. There was no credibility finding to be made on cross-examinations on affidavits. Justice Meyers made it clear that while there may be cases where a plaintiff’s injuries are so severe that they can confidently be said to meet the threshold from the day of the accident, in this case the plaintiff’s medical records alone did not provide a sufficient basis to draw this inference.
This suggests that, before a defendant brings a summary judgment motion for a discoverability and threshold issue, they ought to ensure that the evidence they seek to rely on will provide the judge with enough information to draw an inference as to the day when the plaintiff ought to have known that they had a reasonable chance to prove that they would surpass threshold.
A failure to do adduce such evidence may, like in this case, get their motion dismissed.