The defendants brought a summary judgment application to have the plaintiff’s action dismissed as barred by the Limitations Act, 2002, S.O. 2002, c. 24, on the basis the plaintiff’s action was commenced two years and 21 days after the motor vehicle accident at issue. The court dismissed the defendants’ limitation defence on the basis the plaintiff did not subjectively nor objectively know that her injuries were permanent in the 21-day period after the accident.

Insurance law – Automobile insurance – Policies and insurance contracts – Limitation of actions – Statutory provisions – Running of limitation period – Discoverability

Zhu v. Matadar, [2015] O.J. No. 78, 2015 ONSC 178, Ontario Superior Court of Justice, January 8, 2015, P.M. Perell J.

The plaintiff was injured in a three-car motor vehicle accident that occurred on November 10, 2007. The plaintiff was a passenger in a vehicle driven by her husband, Mr. Jiang, that was the middle or second vehicle involved in the three-car collision.

On November 9, 2009, the plaintiff commenced an action against Mr. Chen (the driver of the first vehicle) and Mr. Jiang. The statement of claim incorrectly identified Mr. Chen as the driver of the rear or third vehicle.

The plaintiff commenced her action against Mr. Matadar (the driver of the third vehicle) and Mr. Vali (the owner of the third vehicle) on December 1, 2009, two years and 21 days after the accident.

Mr. Matadar and Mr. Vali brought a summary judgment application to have the plaintiff’s action dismissed as statute barred pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24. The plaintiff opposed the application and argued that by applying the discoverability principle, her claim was timely and not statute barred.

Pursuant to s. 4 of the Limitations Act, the basic limitation period is two years from the day the claim was discovered. Section 5 of the Limitations Act defines discovery as follows:

5(1)  A claim is discovered on the earlier of,

(a)  the day on which the person with the claim first knew,

(i)  that the injury, loss or damage had occurred,

(ii)  that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii)  that the act or omission was that of the person against whom the claim is made, and

(iv)  that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b)  the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2)  A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

At the scene of the accident, Mr. Jiang (the plaintiff’s husband) made a handwritten note with the names and addresses of Mr. Matadar and Mr. Vali. Accordingly, the plaintiff knew or ought to have known who the potential defendants were on the date of the accident.

Section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, is applicable to action for injuries as a result of a motor vehicle accident. Section 267.5(5) states as follows:

(5)  Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a)  permanent serious disfigurement; or

(b)  permanent serious impairment of an important physical, mental or psychological function.

Pursuant to s. 5 of the Limitations Act and the principle of discoverability, a claim for damages arising out of a motor vehicle accident that is subject to a statutory threshold is not discoverable until there is a sufficient body of medical evidence to satisfy a court on the balance of probabilities that the plaintiff has sustained an injury that will meet the requirements of s. 267.5(5) of the Insurance Act.

The court concluded on the evidence provided that the plaintiff did not subjectively or objectively know that she had sustained a permanent serious impairment of an important physical, mental or psychological function until after December 1, 2007. And as a result, the action against Mr. Matadar and Mr. Vali was timely and the court dismissed the defendants’ limitation period defence.

This case was digested by Aaron D. Atkinson and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at aatkinson@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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