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Recurring back pain and auto liability: how this court applied the two-year limit


March 12, 2019   by David Gambrill




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If an injured cyclist in an auto liability action declares feeling better after treatment, takes a year off work, and then feels debilitating back pain after returning to work three years after the accident, does the two-year statute of limitations apply to the cyclist’s claim for lost income?

No, the Ontario Superior Court of Justice ruled this week.

The decision upholds the law as it applies in Everding v. Skrijel, which found that the limitation period does not apply if the injured person could not have known that he or she suffered a permanent and serious injury during the two-year period after the accident. A plaintiff must also show that he or she acted with due diligence once they discovered they had a cause of action.

Peter St. Marthe, 33, was riding his bicycle in Toronto on the morning of Nov. 9, 2011 when he was struck by the car of Leslie J. O’Connor. St. Marthe suffered a soft-tissue injury to his back that has not healed. He started a lawsuit in July 2015 against O’Connor for lost income.

St. Marthe underwent 18 physiotherapy and nine massage therapy treatments between December 2011 and April 2012.

“His pain lessened with the treatment,” Ontario Superior Court Justice Patrick Hurley observed in St. Marthe v. O’Connor, released in March 2019. “In a note dated Apr. 26, 2012, which was his final physiotherapy appointment, [the physiotherapist] reported that Mr. St. Marthe was ‘feeling good’ and had not had any pain for the last few weeks. She testified that he had improved significantly with respect to pain and range of motion but there was still residual swelling in the location of his back injury.”

St. Marthe’s final appointment with the massage therapist, Katie Locke-McIntosh, was May 30, 2012, Hurley wrote in his decision. “In a note from that date, she wrote that Mr. St. Marthe ‘feels much better,’ did not have any pain and, in her view, ‘seems to be healed quite well.’”

St. Marthe married his wife in August 2012 and the couple moved to Kingston, Ont. The couple decided he would not return to work until the following year, when he expected to achieve his permanent residency status. But in June 2013, they had a child together and his wife decided that he should not return to work until their child was ready for daycare in 2014.

One month after the child started going to daycare, St. Marthe started working as a labourer for a local construction company. The owner of the company said St. Marthe started out his job like a “firecracker.” But St. Marthe’s worsening back pain gradually prevented him from operating machinery essential to the job and he was eventually forced to quit. He then launched an auto liability action for lost income.

The defendant in the case, the driver of the car that hit him, said St. Marthe should have known the full extent of his injuries when he was still within the two-year limitation period.

“The defence places significant emphasis on a comment which Mr. St. Marthe made to his physiotherapist Ms. Rochefort on Mar. 8, 2012 in which he said, according to her notes, ‘Reports feeling somewhat better. Has not returned to soccer and still cannot tolerate lying on back. He is looking into going back to school for media studies b/c he does not feel he will be able to return to construction with his back.’ Once Mr. St. Marthe believed there was ‘some’ damage or loss, the defendant argues, the limitation clock began to tick.”

But the judge disagreed, saying the defence took the remark out of context. It was made at a time when he did not think his condition was improving.

“But, within a few weeks, he was feeling much better and the pain had greatly diminished,” Justice Hurley wrote. “Because of the family decision that he would stay at home and be a ‘househusband,’ I am satisfied he did not become aware that the injury was serious and potentially permanent until he returned to work….It was not until the fall of 2014 that he realized he might be unable to do heavy construction labour because of the pain it caused.”