Scalabrini v. Kahn, 2019 ONSC 2278

Full Decision

A successful motion to add an FLA plaintiff to the action more than 4 years after the motor vehicle accident.

The motor vehicle accident occurred on June 12, 2014. The action was commenced in the same year on behalf of the injured plaintiff, Fabio Scalabrini. The motion to add the plaintiff’s spouse was heard on January 8, 2019.

Immediately prior to the accident, the plaintiff and his wife purchased slate tiles as their roof needed to be redone. He intended to redo the roof himself but following the accident, he was incapable of doing so as he suffered dizziness when he climbed ladders. Apparently, this delay in redoing the roof resulted in leaks which ultimately gave rise to a mold issue. According to the Proposed Plaintiff, it was not until October 1, 2018 when the mold inspection was conducted in their home that the FLA claimant’s cause of action was discovered. The Proposed Plaintiff argued that it was when she began to experience health concerns on account of the mold growing in her house, that the full extent of her own injuries became apparent, as well as the extent of her expenses incurred for the benefit of the plaintiff, housekeeping services performed in place of the plaintiff, and losses in care, guidance and companionship.

Master Short reviewed the jurisprudence on the principles of discoverability relating to injuries. Peixeiro v. Haberman held that injured parties do not have a cause of action until it was reasonably determined that the damages exceeded the threshold. The same principle was held to apply to FLA claims in Wilson v. Arseneau: if a claim for a matter reasonably lies under the threshold, a “proceeding” would not be “an appropriate means” of seeking a remedy. To hold otherwise, and to hold that an FLA claim below the threshold should have been brought in any event, would encourage commencement of litigation without merit and put litigants needlessly at the risk of costs.

Master Short concluded that there was a reasonable possibility that the Proposed Plaintiff could not have known the full extent and severity that her husband’s injuries would have upon her until she began experiencing health concerns on account of the mold growing in her house. Master Short allowed the motion and granted leave to add the Proposed Plaintiff to the action.

Nga Dang
Written by

Nga has practiced exclusively in personal injury since her call to the bar. Nga is very compassionate towards those who have suffered a loss and aims to guide clients through difficult legal processes. She is also dedicated to promoting access to justice for injured members of the Vietnamese community. With her fluent Vietnamese language skills, she hopes to lower the communication barriers faced by many injured members of her community and help them obtain appropriate compensation.