Schaefer v Ayeneababa, 2016 ONSC 3673 (CanLII)

This was a summary judgment motion in which the defendant sought to have the motor vehicle action dismissed for a missed limitation period.

Released June 3, 2016 | Full Decision [CanLII]

The plaintiff, Anneliese Schaefer was rear-ended on June 24, 2009 on Highway 427, and suffered soft tissue injuries.  She retained a lawyer in August, 2010, and commenced this action on December 2, 2011, more than 2 years post-collision.

On May 24, 2011, Ms. Schaefer’s lawyer provided a draft Statement of Claim and accompanying letter to the defendant’s insurer.  In the letter, he indicated that his client had suffered “permanent and serious impairments” and that the limitation was “fast approaching”.  However, he did not issue the statement of claim until December 2, 2011, shortly after receiving a supportive medical opinion from Dr. Sequeira.

The defendant’s position was that this letter made it clear that the applicable limitation period ended on June 24, 2011, and that therefore, the plaintiff was out of time to sue.

Justice Belobaba reviewed the relevant principles from Ioannidis v. Hawkings: that the court should grant a degree of latitude to the plaintiff regarding the commencement of a limitation period, and that in a “serious and permanent impairment” claim, it should only begin to run once “a sufficient body of evidence [is] available to be placed before a judge that, in counsel’s opinion, has a reasonable chance of persuading a judge that the injury qualifies”.

In this case, no medical opinion was provided to Ms. Schaefer that her injuries would become permanent.  In fact, she was confident that she would recover and return to her activities of daily living- certainly for the first six months post-collision.  Her evidence was that only in August, 2010, faced with ongoing physical impairments, did she feel it was necessary to seek legal advice.

Since the claim was commenced less than six months after the 2 year anniversary of the collision, Justice Belobaba held that the limitation to sue had not expired by the time the claim was issued.   His Honour did not accept that counsel’s purported “acknowledgement” of the June 24, 2011 limitation date via the draft statement of claim held any weight, as pleading are not evidence, and virtually all motor vehicle claims plead permanent and serious impairments.

Ms. Schaefer received costs in the amount of $6,500 on the motion.

Read the full decision on CanLII
Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.