June 24, 2010 by Canadian Underwriter
The Ontario Court of Appeal has breathed new life into an auto injury claim that was defeated in a summary judgment because it was filed 14 months after the limitations period had expired.
The Appeal Court reinstated the action on the basis that the motion judge that dismissed the matter failed to consider the $15,000 statutory deductible from general damages as a factor in the discoverability of the claim.
In Antonia (Tami) Everding and Ljutvo Skrijel, Everding was the front-seat passenger in a low-speed collision in May 2000. She experienced immediate pain and underwent various post-accident therapies.
She consulted a lawyer in May 2001. She was then advised that for a soft-tissue injury, she had no case unless there was some visible or objective injury.
Everding’s family doctor advised her in May 2004 that she suffered from a chronic pain condition.
An MRI scan was recommended in September 2005. Conducted in May 2006, the MRI revealed a disc bulge at two locations.
The MRI provided objective proof she had a permanent injury that might have exceeded the $15,000 statutory deductible. She consulted her lawyers, who then launched her claim in 2007.
The defendant moved for summary judgment to dismiss the case, arguing the claim was statute-barred as of May 2006. The defendant said the plaintiff knew or ought to have known that she had a valid claim when she was diagnosed with chronic pain in May 2004.
The lower court agreed, but the Appeal Court said the motions judge should have considered first whether the claim would have exceeded the $15,000 threshold.
Counsel for the defendant argued the issue of whether or not the claim would have exceeded the $15,000 deductible “should not be considered a condition precedent to the discoverability of a claim that is potentially significant enough” to override the limitations spelled out in the Insurance Act.
“I reject this submission,” Ontario Court of Appeal Justice Kathryn Feldman wrote for the court. Feldman cited with approval the Ontario Superior Court decision in Voisin v. Hartin:
“The rationale underlying the discoverability principle is that the law ought not to preclude an action before a person is able to sue on it. In my view, this rationale requires me to take into account the effect of the $10,000 [now $15,000] requirement.
“It would be fundamentally unfair to require the plaintiff to bring an action in which he could not expect to recover anything because his claim could not surpass the $10,000 exemption.”