Everding v. Skrijel,

• Jurisdiction: Ontario
• Judge: Feldman, Armstrong and Epstein, JJ.A.
• Neutral Citation: 2010 ONCA 437
• Date: 20 November 2009
• Court: Court of Appeal (Ontario)

Everding v. Skrijel (2010), 263 O.A.C. 130 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JN.047

Antonia (Tami) Everding (plaintiff/appellant) v. Ljutvo Skrijel (defendant/respondent)

(C50538; 2010 ONCA 437)

Indexed As: Everding v. Skrijel

Ontario Court of Appeal

Feldman, Armstrong and Epstein, JJ.A.

June 15, 2010.

Summary:

The plaintiff claimed for damages for injuries suffered in a motor vehicle accident. The defendant moved for summary judgment.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned C62, allowed the motion and dismissed the action on the basis that the action was commenced outside the limitation period. The plaintiff appealed. At issue was whether the motion judge erred by failing to consider the $15,000 statutory deductible from general damages as a factor in the discoverability of the claim and whether he erred in the application of the onus of proof on the summary judgment motion.

The Ontario Court of Appeal allowed the appeal.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiff suffered a soft tissue injury in a low-speed collision on May 24, 2000 - In May 2001, her lawyer advised her that with soft-tissue injury, she had no case unless there was some visible or objective injury - The plaintiff continued to have pain and an MRI scan of her cervical spine in March 2006 revealed a disc bulge at two locations - The MRI results provided objective proof of a permanent injury, potentially sufficient to base a claim that would meet the statutory "threshold" and for which an award would likely exceed the $15,000 statutory deductible - The plaintiff brought an action in August 2007 - A motion judge granted the defendant's motion for summary judgment on the basis that the action was commenced outside the limitation period - The plaintiff appealed, asserting that the motion judge erred by failing to consider the $15,000 statutory deductible from general damages as a factor in the discoverability of the claim - The Ontario Court of Appeal allowed the appeal - It was not the policy of the law or the intent of the limitations provisions to require people to commence actions before they knew that they had a substantial chance to succeed in recovering a judgment for damages - These provisions of the Insurance Act dealing with the statutory deductible were enacted as part of a scheme that provided compensation with no-fault benefits for injuries that were not considered to be serious or permanent, but allowed actions to proceed where the injuries were sufficiently significant that a substantial monetary award was likely to be recovered - Consequently, the test for the discoverability of the existence of such a claim for limitation purposes had to be in accordance with this same policy - In arriving at his conclusion regarding when the plaintiff ought to have been aware that she had a claim that potentially met the statutory criteria, the motion judge did not include the $15,000 deductible as one of those criteria - This omission constituted an error - See paragraphs 8 to 14.

Limitation of Actions - Topic 3028

Actions in tort - Motor vehicle accidents - When time begins to run - General - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The plaintiff suffered a soft-tissue injury in a low-speed collision on May 24, 2000 - In May 2001, her lawyer advised her that with soft-tissue injury, she had no case unless there was some visible or objective injury - The plaintiff continued to have pain and an MRI scan of her cervical spine in March 2006 revealed a disc bulge at two locations - The MRI results provided objective proof of a permanent injury, potentially sufficient to base a claim that would meet the statutory "threshold" and for which an award would likely exceed the $15,000 statutory deductible - The plaintiff brought an action in August 2007 - A motion judge granted the defendant's motion for summary judgment on the basis that the action was commenced outside the limitation period - The plaintiff appealed, asserting that the motion judge erred in the application of the onus of proof on the summary judgment motion - The motion judge criticized the solicitor for failing to mention in his affidavit an earlier diagnosis of chronic pain (May 2004) by the plaintiff's family doctor, and concluded that this omission constituted a failure by the plaintiff to "lead trump" or to "put her best foot forward" - The Ontario Court of Appeal allowed the appeal - The criticism of the solicitor was unwarranted and misconceived the onus requirements on a summary judgment motion - There was no attempt to hide evidence or to mislead the court - The full picture of the history of the diagnosis and treatment of the plaintiff's injuries, including the diagnosis of chronic pain, was disclosed in the record - The solicitor's affidavit was filed for the express purpose of putting the plaintiff's best foot forward by explaining why the court should conclude that the action was commenced within the limitation period or that there was at least a genuine issue for trial as to when the limitation period commenced on the facts of the case - The solicitor was responding to the position that the chronic pain diagnosis in May 2004 constituted the commencement point of the limitation period - His response was that the plaintiff did not discover that her condition was significant enough in seriousness, permanence and in quantifiable damage ($15,000 minimum), until she learned the results of the MRI scan over two years later - See paragraphs 15 to 18.

Cases Noticed:

Voisin v. Hartin, [2000] O.T.C. 931 (Sup. Ct.), refd to. [para. 10].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 12].

Counsel:

J. Sebastian Winny, for the appellant;

Wayne F. McCormick, for the respondent.

This appeal was heard on November 20, 2009, by Feldman, Armstrong and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Feldman, J.A., by June 15, 2010.