Farhat v. Monteanu, 2015 ONSC 2119 (CanLII)

In this summary judgment motion, Perell J. of the Ontario Superior Court of Justice held that a person cannot always be expected to commence an action before he or she knows that the injuries surpass the threshold, which may not always be apparent on the date in which the accident occurred.

Decision Released April 1, 2015Full Decision

The plaintiff was injured when his vehicle was rear-ended by the defendant’s vehicle on May 18, 2006.  Within a few weeks of the accident, the plaintiff’s lawyer put the defendant on notice of the plaintiff’s potential claim advising that the plaintiff had sustained “serious injuries” as a result of the accident. Nine months after the accident, the plaintiff was diagnosed with a non-dermatoromal sensory deficit in his left upper and lower extremities, which ultimately provided the basis of a chronic pain claim.

Just over two years following the accident (on June 19, 2008), the plaintiff commenced a personal injury action against the defendant. The defendant moved for summary judgment dismissing the plaintiff’s claim as statute-barred since it was brought outside of the applicable limitation period.  The defendant argued that pursuant to s. 5(2) of the Limitations Act, 2002, there is a presumption that a motor vehicle accident claim is discovered on the date the accident occurred and the plaintiff had to provide evidence that the issuance of the claim was delayed because of the need to obtain medical confirmation that the plaintiff’s serious injury was a permanent injury and thus, met the threshold under s. 267.5(5) of the Insurance Act.

Justice Perell confirmed that on such motions the onus is on the plaintiff to persuade the court that:

  1. the seriousness of his injury was not discoverable within the applicable limitation period; and
  2. he acted with due diligence to discovery if there was a cause of action.

Referring to the Ontario Superior Court’s decision in Hoffman v. Jekel, Justice Perell stated that a “person cannot be expected to commence an action before he or she knows that the necessary elements as set out in the legislation can be established on the evidence.” It could take several months to determine whether ongoing pain suffered as a result of an accident is a permanent serious impairment. A plaintiff with only a chronic pain claim will not know that the claim surpasses the Insurance Act threshold until sometime after the date of the accident. Therefore, Justice Perell found that the plaintiff need only show that he could not have discovered his chronic pain claim between the date of the accident and June 18, 2006 (two years before the date the action was commenced).  He was satisfied the plaintiff had done so.  Ultimately, the defendant’s motion for summary judgment was dismissed.

 

Read the full decision on CanLII

Einav Shlomovitz
Written by

Einav practices exclusively in civil litigation. Her practice focuses on motor vehicle accident, accident benefits, occupier’s liability, slip/trip and falls, dog bites, medical malpractice, solicitor negligence, class action, employment and sexual assault claims.

During her free time, Einav takes improv and Spanish lessons. She enjoys being active, traveling, and spending time with family and friends.