Defendant's Loss was not discoverable on the day accident occurred - two year limitation period begins once loss is discoverable

November 15, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Constance Moriarty v. Patrick Moriarty, 2017 ONSC 5933 (CanLII)

Date of Decision: October 4, 2017
Heard Before: Justice Charbonneau

Patrick Moriarty brings a motion for summary judgment for an order dismissing Constance Moriarty’s claim on the ground that it was initiated beyond the two-year limitation period provided by the Limitations Act.

Constance Moriarty was involved in an All-Terrain Vehicle accident on October 13th, 2012.  The vehicle was driven by the Patrick.  She suffered a back injury, fractured ribs, and multiple broken front teeth.  She underwent 2 back surgeries and had to undergo rehabilitation.  She has never returned to her employment. The present action was stared on November 19th, 2014.

The Law        

On a motion for summary judgment, the judge will allow the motion if there is no genuine issue requiring a trial.  If the trial judge finds that there exists a genuine issue requiring determination, he or she may consider whether using the court powers conferred by Rule 20, the judge is satisfied that he or she is able to make findings of fact and decide the issue in a just and reasonable way without the need for a full trial.

Justice Charbonneau reviewed Section 4 and 5 of the Act which set out the general two-year limitation and the discoverability principle. The Justice noted the parties disagree as to when the plaintiff’s claim was discoverable.  The defendant submits that the claim was discoverable between October 12, 2012 and certainly before she was discharged to rehabilitation on November 5th. 2012.

On the other hand the plaintiff submits that her claim was not discoverable before well after November 12, 2012 when her counsel had received further medical reports and first was able to determine if the plaintiff had suffered “a permanent serious impairment of an important physical, mental or psychological function” (the threshold).

Justice Charbonneau determined that it is clear on the facts of this case that the plaintiff could not have reasonably known that her loss met the threshold requirement on the day of the accident.  Section 5 (2) of the Act therefore has no application.

Applying section 5 (1) of the Act, the issue is when did the plaintiff know or a reasonable person with her abilities and her circumstances ought to have known that the impairment from her injuries were permanent and serious.

Justice Charbonneau found that Constance’s loss was not discoverable on November 5th, 2012 when she was discharged from the Ottawa Hospital into rehabilitation. Given the medical information she had before November 20, 2012, a reasonable person in her circumstances would not have yet known her loss would be permanent.  She underwent medical evaluations and treatment well beyond November 20, 2012.  There was improvement of her condition in the months following her discharge from rehabilitation.  It was impossible to know what would be the extent of her recovery at the time. Justice Charbonneau determined that the claim was not discoverable before the physicians reports were available to the plaintiff’s counsel sometime in May or June 2013, well within the two-year limitation period.

On this basis the Justice dismissed the Mr. Moriarty’s motion with costs.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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