Date of Claim Can Be Beyond Two Year Anniversary of Accident

February 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Schaefer v Ayeneababa – limitation period; is limitation period exceeded for SABs claim; plaintiff brings claim outside two year limitation date from date of accident; judge notes that limitation data did not commence until plaintiff was aware that serious and permanent impairment was sustained; date of claim can be beyond two year anniversary of accident if medical evidence warrants so.

SUPERIOR COURT OF JUSTICE - ONTARIO

Schaefer v Ayeneababa

Date of Decision: June 3, 2016
Heard Before:  Justice Edward P. Belobaba

Motion for summary judgment

Ms. Schaefer was in a car accident in which she was rear-ended on June 24, 2009 on Highway 427. She sustained significant, mainly soft-tissue injuries and was hospitalized. Ms. Schaefer retained legal counsel in August, 2010 and her lawyer commenced this action on December 2, 2011.

A. Ayeneababa moves for summary judgment dismissing the action because it was commenced more than two years after the motor vehicle accident and is thus time-barred under the Limitations Act. A. Ayeneababa says that Ms. Schaefer’s lawyer made clear to the insurer that her injuries were permanent and that the limitation period would expire two years after the accident on June 24, 2011. Since the action commenced on December 2, 2011 it is thus out of time.

All parties agree that the limitations issue can be summarily adjudicated. Both sides also agree with the proposition set out in Ioannidis - that in claims of permanent injury and impairment under Insurance Act, the court should grant “a degree of latitude to plaintiff before declaring that the limitation period has begun to run.” A limitation period should not begin to run with regard to a serious and permanent impairment claim:

… until there is a sufficient body of evidence  available to be placed before a judge that, in counsel’s opinion, has a reasonable chance of persuading a judge on a balance of probabilities that the injury qualifies [as a serious permanent impairment].When such a body of material has been accumulated then and only then should the limitation begin to run.

Ms. Schaefer relied on previous court decisions and says the focus should be on the time period from the date of the accident to two years before the commencement of the action - that is from June 24, 2009 to December 2, 2009. During this six-month time period, she reasonably believed that she was on the mend and did not know and could not have known so soon after the accident that the injuries and impairments were permanent.  Ms. Schaefer’s uncontroverted evidence (supported by the pertinent medical documentation) is that she “always understood that with time and proper treatment my injuries would resolve and I would be able to return to my pre-accident activities.” As she put it in her affidavit:

At no time was I told that my injuries and impairments were permanent and would not get better with time and treatment. By August 20, 2010 [just over a year after the accident] I continued to have pain and impairments and therefore retained [my lawyer] … to represent me with respect to the injuries I had sustained in the motor vehicle accident. I relied on [my lawyer] to take whatever steps were necessary to proceed with my claims …

Ms. Schaefer did not know and could not have known on the date of the accident that her soft-tissue injuries were permanent. She has thus successfully rebutted the presumption in s. 5(2) of the Limitations Act.

The Justice noted that on the record before him, the earliest that she would have known that she was not getting better with time and treatment and that her injuries and impairments were or could be permanent was in August, 2010 when she retained legal counsel “to take whatever steps were necessary to proceed with my claims.” The action was commenced just over one year later and is therefore not time-barred.

A. Ayeneababa points to a letter dated May 24, 2011 from Ms. Schaefer’s lawyer to the insurer. The lawyer advises the insurer that as a result of the accident, Ms. Schaefer suffered injuries to her neck, shoulders, back and hips and that the physical and psychological symptoms from these injuries (such as dizziness, headaches and acute depression) “are continuing up to the present.” The lawyer also notes that the limitation date is “fast approaching” and attaches a draft statement of claim. The draft statement of claim specifically pleads “permanent and serious impairments.” The lawyer then tries to file the claim by mail but the mailed-in claim is rejected by the court. The action is properly commenced on December 2, 2011.

A. Ayeneababa says that by these words and actions Ms. Schaefer’s lawyer in essence acknowledged that his client’s injuries were indeed permanent and that he only had until June 24, 2011 (two years after the accident) to commence the action.

The Justice did not agree. The fact that Ms. Schaefer’s injuries were described as “continuing” is not, in and of itself, an acknowledgement of permanency. Nor is the fact that the lawyer attaches a draft statement of claim that pleads “permanent and serious impairments.” This claim is made in almost every motor vehicle accident that results in significant injury. And, in any event, pleadings are not evidence.  The fact that the lawyer noted in his letter that the two-year limitation period is “fast approaching” says as much about his desire to file the claim within the presumptive two-year period just to be on the safe side, as it does about an admission that his client knew she sustained permanent soft-tissue injuries at the date of the accident – which is generally an impossibility and is here rebutted by the medical documentation that the lawyer reviewed.

In his affidavit, the lawyer lists the various clinical and psychological reports that he had reviewed (none of which describe the impairments as permanent) and explains that when he sent the May 24, 2011 letter to the insurer, he “did not have the necessary medical reports and records to prove [that the impairments were permanent].” It was only after requesting a medical opinion on October 20, 2011 and receiving the doctor’s report a month later that he “formed the opinion that Ms. Schaefer had sustained an injury that met the requirements of the Insurance Act.” The lawyer commenced the action less than a month later on December 2, 2011.

Much was made of this medical opinion that appears to have been prepared on December 30, 2010 and that also concluded that Ms. Schaefer’s impairments were permanent. The date on this document and its overall import remains a matter of dispute. But even if this report is what it appears to be, all that it means is that the action was still commenced in a timely fashion.

The motion for summary judgment based on the limitations argument is dismissed.

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