Peixeiro v. Haberman,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Citation: (1997), 217 N.R. 371 (SCC),103 OAC 161,12 CPC (4th) 255,151 DLR (4th) 429,74 ACWS (3d) 117,30 MVR (3d) 41,1997 CanLII 325 (SCC),217 NR 371,46 CCLI (2d) 147,JE 97-1825,[1997] 3 SCR 549,[1997] ACS no 31,[1997] CarswellOnt 2928,[1997] SCJ No 31 (QL)
• Court: Supreme Court (Canada)
• Date: 26 September 1997

Peixeiro v. Haberman (1997), 217 N.R. 371 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.R. TBEd. SE.007

Peter Haberman (appellant) v. Mauricio Peixeiro and Fernanda Peixeiro (respondents)

(24981)

Indexed As: Peixeiro v. Haberman

Supreme Court of Canada

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci and

Major, JJ.

September 26, 1997.

Summary:

In October 1990, Peixeiro was injured in a motor vehicle accident with Haberman. He was diagnosed with soft tissue damage to his lower back and informed it would heal with time. In June 1993 Peixeiro learned that he had a disc herniation requiring sur­gery and that the injury may be permanent. He com­menced an action against Haberman. Haberman sought to have the action dis­missed, arguing that it was statute barred by the two year limitation period under the Highway Traffic Act, s. 206.

A trial judge dismissed the action. Peixeiro appealed.

The Ontario Court of Appeal, in a decision reported 85 O.A.C. 2, allowed the appeal and set aside the trial judge's decision. Haberman appealed.

The Supreme Court of Canada dismissed the appeal.

Insurance - Topic 5010.1

Automobile insurance - Compulsory gov­ernment schemes (incl. no-fault schemes) - Limitation on causes of action - General - [See Insurance - Topic 5010.2].

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Section 266 of the Ontario In­surance Act limited the common law right of a motor vehicle accident victim to pur­sue a tort action - The Supreme Court of Canada reviewed s. 266 and stated that it "effectively bars actions for recovery in tort unless a certain level of physical injury, permanent in nature and entailing serious impairment of an important bodily function, is met. Unlike schemes in Michigan, New York and Florida upon which the Ontario scheme was said to be modelled, the Ontario threshold bars all tort claims, pecuniary and nonpecuniary, if the injury fails to pass the threshold" - See paragraph 29.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The Supreme Court of Canada stated that "discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it" - It is "an interpretive tool for the construing of limitations stat­utes which ought to be considered each time a limitations provision is in issue" - See paragraphs 36 and 37.

Limitation of Actions - Topic 3028

Actions in tort - Motor vehicle accidents - When time begins to run - In 1990 Peixeiro was injured in a motor vehicle accident with Haberman - He was diag­nosed with soft tissue damage to his lower back and informed it would heal with time - In 1993 Peixeiro learned that he had a disc herniation requiring surgery and that the injury may be permanent - He com­menced an action against Haberman - Haberman had the action dismissed on the ground that it was statute barred by the two year limitation period under the High­way Traffic Act, s. 206 - The Ontario Court of Appeal allowed Peixeiro's appeal, stating that the discoverability rule applied - The limitation statute commenced to run when the material facts upon which the action was based were discovered or ought to have been discovered by the exercise of reasonable diligence - The Supreme Court of Canada dismissed Haberman's appeal.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See Limitation of Actions - Topic 3028].

Cases Noticed:

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103; 106 D.L.R.(4th) 404, addendum 157 N.R. 372; 66 O.A.C. 240, refd to. [para. 12].

Bair-Muirhead v. Muirhead (1994), 20 O.R.(3d) 744 (Gen. Div.), refd to. [para. 12].

Grossi v. Bates (1995), 77 O.A.C. 61; 21 O.R.(3d) 564 (Div. Ct.), refd to. [para. 14].

Cartledge v. Jopling (E.) & Sons Ltd., [1963] A.C. 758 (H.L.), refd to. [para. 18].

July v. Neal and Home Insurance Co. (1986), 17 O.A.C. 390; 57 O.R.(2d) 129 (C.A.), refd to. [para. 18].

Meyer et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), consd. [para. 25].

Buffa v. Gauvin (1994), 18 O.R.(3d) 725 (Gen. Div.), refd to. [para. 30].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 34].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 36].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 36].

Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] 1 Q.B. 858 (C.A.), refd to. [para. 36].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.C.L.T.(2d) 200 (C.A.), refd to. [para. 37].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 206(1) [para. 11].

Insurance Act, R.S.O. 1990, c. I-8, sect. 266 [para. 11].

Authors and Works Noticed:

Klar, Lewis, No-Fault Insurance for Auto Accident Victims: A Background Paper, Canadian Bar Association, Alberta Branch Task Force on Fault/No-Fault Insurance (1991), p. 13 [para. 22].

O'Donnell, Allan, Automobile Insurance in Ontario (1991), p. 202 [para. 26].

Counsel:

T.H. Rachlin, Q.C., and Alan L. Rachlin, for the appellant;

Antonio F. Azevedo, for the respondents.

Solicitors of Record:

Rachlin & Wolfson, Toronto, Ontario, for the appellant;

Faust, Azevedo & Wise, Toronto, Ontario, for the respondents.

This appeal was heard on March 13, 1997, before L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered by Major, J., in both official languages and released on September 26, 1997.