Rogers v. Morgan et al., 2011 NLCA 27

• Judge: Welsh, White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 06, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: 2011 NLCA 27;(2011), 307 Nfld. & P.E.I.R. 292 (NLCA)

Rogers v. Morgan (2011), 307 Nfld. & P.E.I.R. 292 (NLCA);

    954 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. MY.003

Kim Morgan (first appellant/third defendant/fourth defendant by counterclaim) and David Morgan (second appellant/fourth defendant/fifth defendant by counterclaim) and Dean Bradley Fry (first defendant/third defendant by counterclaim) and Danielle Delaney (third appellant/second defendant/plaintiff by counterclaim) and Royal Garage Limited (fifth defendant) and Daimler Chrysler Canada Inc. (sixth defendant) v. Judy Rogers (respondent/first plaintiff/defendant by counterclaim) and Donald Rogers (dismissed) (second plaintiff) and Selby Donald Rogers (dismissed) (third plaintiff/second defendant by counterclaim)

(09/115; 2011 NLCA 27)

Indexed As: Rogers v. Morgan et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Welsh, White and Hoegg, JJ.A.

April 28, 2011.

Summary:

Rogers was involved in a multi-vehicle collision on February 26, 2005. She was diagnosed with soft tissue injury. On February 28, 2005, she gave a written statement about the accident to an RCMP officer. For several days post-accident, Rogers suffered from pain, incoherence, nausea, dizziness and severe headache. On February 27, 2007, Rogers issued a statement of claim for damages, one day after the expiration of the two year limitation period. The defendants applied for a determination that the claim was statute barred.

The Newfoundland and Labrador Supreme Court, General Division, in a decision unreported in this series of reports, held that the discoverability provisions of s. 14 of the Limitations Act saved Rogers' claim, as she "was likely rendered for at least a day or two incapable of knowing or understanding the circumstances of the accident". Under s. 15 of the Act, the limitation period could accrue from February 28, 2005, because of Rogers' disability. The defendants appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal. The trial judge committed palpable and overriding errors in finding that Rogers did not know she had a cause of action on February 26, 2005. Accordingly, Rogers was unable to rely on s. 14 of the Act to postpone the running of the limitation period. Neither was she able to rely on s. 15 to extend the limitation period.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - This personal injury action involved the interpretation and application of the principle of discoverability within s. 14 of the Limitations Act, S.N.L. 1995, c. L-16.1 - The Newfoundland and Labrador Court of Appeal stated that "[k]nowledge of a 'cause of action' within the meaning of section 14 means knowledge of the material facts grounding the cause of action" - In the end result, the court held that the plaintiff was unable to avail of the provisions of s. 14 to postpone the running of the two-year limitation period applicable to her cause of action - See paragraphs 20 to 23.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 8 ].

Limitation of Actions - Topic 304

Evidence and proof - Burden of proof - The Newfoundland and Labrador Court of Appeal stated that "[t]he party seeking the benefit of the discoverability principle has the burden of proving facts that justify the extension of a limitation period. Likewise, if a party wants to postpone the running of time due to disability, that party has the onus of proving he or she was disabled within the meaning of the [Limitations] Act for the applicable period of time" - See paragraph 12.

Limitation of Actions - Topic 3026

Actions in tort - Motor vehicle accidents - Application of motor vehicle limitation period - The plaintiff was involved in a multi-vehicle collision on February 26, 2005 - She was diagnosed with soft tissue injury - On February 28, 2005, she gave a written statement about the accident to an RCMP officer - For several days, she suffered from pain, incoherence, nausea, dizziness and severe headache - She issued a statement of claim for damages, one day after the expiration of the two year limitation period - The defendants applied for a determination that the claim was statute barred - The applications judge held that the discoverability provisions of the Limitations Act saved the plaintiff's claim, as she "was likely rendered for at least a day or two incapable of knowing or understanding the circumstances of the accident" - The Newfoundland and Labrador Court of Appeal disagreed - The plaintiff's failure to identify all possible defendants to the medical personnel in the hospital emergency department was not evidence that she did not know or was incapable of determining by reasonable diligence facts material to her cause of action - Further, the evidence of her symptoms post-accident did not, in the absence of other evidence, indicate that she was unable to know the material facts relating to the accident - "It is not necessary that a plaintiff fully appreciate the material facts of her cause of action before the limitation period accrues" - See paragraphs 24 to 38.

Limitation of Actions - Topic 9004

Persons under disability and exemptions and exclusions - General - Persons under disability - What constitute - The applications judge found that the plaintiff in this personal injury action was essentially incapacitated for a day or two after the motor vehicle collision, thus postponing the running of time with respect to the limitation period - Section 15 of the Limitations Act addressed the running of a limitation period when a plaintiff was under a disability - The Newfoundland and Labrador Court of Appeal stated that "[w]hile the assessment of a plaintiff's knowledge required by section 14 may allow for consideration of a plaintiff's health, evidence relating to health can certainly engage consideration of capacity under the provisions of section 15" - For the plaintiff to postpone the running of time applicable to her cause of action under s. 15, "she must prove as a result of her mental or physical condition she was incapable of managing her affairs for the period in respect of which she seeks postponement" - See paragraphs 39 and 40.

Limitation of Actions - Topic 9004

Persons under disability and exemptions and exclusions - General - Persons under disability - What constitute - The plaintiff was involved in a multi-vehicle collision on February 26, 2005 - She was diagnosed with soft tissue injury - On February 28, 2005, she gave a written statement about the accident to an RCMP officer - For several days, she suffered from pain, incoherence, nausea, dizziness and severe headache - She issued a statement of claim for damages, one day after the expiration of the two year limitation period - The defendants applied for a determination that the claim was statute barred - The applications judge determined that the limitation period could accrue from February 28, 2005, because of the plaintiff's immediate post accident medical condition - Section 15 of the Limitations Act extended a limitation period for a person who was under a disability - The Newfoundland and Labrador Court of Appeal allowed the appeal - "In order to establish incapacity to manage one's affairs within the meaning of section 15 of the Act, it would be necessary to prove significant impairment" - The evidence respecting the plaintiff's health condition post accident did not demonstrate incapacity to manage her own affairs for the purposes of s. 15 - In the result, the claim was issued outside of the prescribed period and was time barred - See paragraph 48.

Limitation of Actions - Topic 9106

Persons under disability and exemptions and exclusions - Suspension of time - Lack of knowledge - [See Limitation of Actions - Topic 3026 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - The Newfoundland and Labrador Court of Appeal stated that "[t]he discoverability principle developed as judge-made law to attenuate the harshness and injustice of barring a claim before a plaintiff knows of its existence or is able to sue ... The principle permits a limitation period to accrue from the time when a plaintiff knows or ought reasonably to know that he or she has a cause of action as opposed to the time when the events giving rise to the cause of action arose. In recent years discoverability has been codified in legislation, and in this Province it is found in section 14 of the [Limitations] Act" - The burden of proving that the running of the limitation period had been postponed or suspended under s. 14 was on the person claiming the benefit of that postponement or suspension - See paragraphs 9 and 10.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - Rogers was involved in a multi-vehicle collision on February 26, 2005 - She was diagnosed with soft tissue injury - On February 28, 2005, she gave a written statement about the accident to an RCMP officer - For several days post-accident, Rogers suffered from pain, incoherence, nausea, dizziness and severe headache - On February 27, 2007, Rogers issued a statement of claim for damages, one day after the expiration of the two year limitation period - The defendants applied for a determination that the claim was statute barred - The trial judge held that the discoverability provisions of s. 14 of the Limitations Act saved Rogers' claim, as she "was likely rendered for at least a day or two incapable of knowing or understanding the circumstances of the accident" - Under s. 15 of the Act, the limitation period could accrue from February 28, 2005, because of Rogers' disability - The defendants appealed - The Newfoundland and Labrador Court of Appeal allowed the appeal - The trial judge committed palpable and overriding errors in finding that Rogers did not know she had a cause of action on February 26, 2005 - Accordingly, Rogers was unable to rely on s. 14 of the Act to postpone the running of the limitation period - Neither was she able to rely on s. 15 to extend the limitation period - In the result, Rogers' claim was issued outside of the prescribed period and was time barred - See paragraph 49.

Practice - Topic 5384

Dismissal of action - Application or motion for dismissal - Circumstances when granted - [See Practice - Topic 2239.2 ].

Cases Noticed:

Courtney v. Cleary (2010), 299 Nfld. & P.E.I.R. 85; 926 A.P.R. 85; 2010 NLCA 46, refd to. [para. 8].

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, refd to. [para. 9].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 9].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 14].

WEH Enterprises Ltd. v. Squires et al. (2010), 300 Nfld. & P.E.I.R. 98; 927 A.P.R. 98; 2010 NLCA 41, consd. [para. 16].

Williams v. Thomas Development Corp. et al. (2000), 196 Nfld. & P.E.I.R. 220; 589 A.P.R. 220 (Nfld. T.D.), consd. [para. 17].

Stell v. Obedkoff (1999), 97 O.T.C. 154; 45 O.R.(3d) 120 (Sup. Ct.), consd. [para. 17].

Jack v. Canada (Attorney General), [2004] O.T.C. 706 (Sup. Ct.), consd. [para. 17].

Hendsbee v. Khuber and Stockmal (1995), 148 N.S.R.(2d) 270; 429 A.P.R. 270 (S.C.), consd. [para. 17].

Foley v. Greene (1990), 85 Nfld. & P.E.I.R. 156; 266 A.P.R. 156 (Nfld. T.D.), consd. [para. 21].

Letang v. Cooper, [1964] 2 All E.R. 929 (H.L.), refd to. [para. 21].

Coffey v. Bassett et al. (2001), 207 Nfld. & P.E.I.R. 173; 620 A.P.R. 173 (Nfld. T.D.), consd. [para. 42].

Cowen v. Gray, [2001] B.C.T.C. 487; 2001 CarswellBC 779 (S.C.), consd. [para. 43].

Wirtanen et al. v. British Columbia, [1994] B.C.T.C. Uned. 827; 98 B.C.L.R.(2d) 335 (S.C.), consd. [para. 44].

Snow v. Kashyap (1996), 139 Nfld. & P.E.I.R. 321; 433 A.P.R. 321 (Nfld. C.A.), consd. [para. 45].

Statutes Noticed:

Limitations Act, S.N.L. 1995, c. L-16.1, sect. 14 [para. 10]; sect. 15(1), sect. 15(2), sect. 15(5) [para. 11].

Counsel:

Bridget S. Daley, for the first and second appellants;

Terry Rowe, Q.C., for the third appellant;

Donald K. Powell, for the respondent.

This appeal was heard on December 6, 2010, before Welsh, White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. In reasons written by Hoegg, J.A., the Court of Appeal rendered the following judgment on April 28, 2011.