Limitation period clock begins to run when mother signs statement of claim - Azzeh v. Legendre, 2017 ONCA 385

July 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Limitation period clock begins to run when mother signs statement of claim - Azzeh v. Legendre, 2017 ONCA 385

Date of Decision: May 12, 2017
Heard Before: Weiler, Benotto and Roberts JJ.A.

Bayden Azzeh who was 17 days old, and his mother Julia Neville were in a car accident in Sudbury on September 7, 2007, and Bayden suffered brain injuries. Following the car accident Ms. Neville retained Wallbridge to act on her and her son’s behalf.  Their contingency fee agreement included representation of Ms. Neville and Bayden with respect to the same accident. A Statement of Claim was issued on Neville’s behalf in April 2008, and settled in August 2011. Ms. Neville then made an application for statutory accident benefits for Bayden, signing the application as his “guardian” shortly after the settlement.

Wallbridge issued a claim on behalf of Bayden in June 2014, “represented by his Litigation Guardian Julia Neville”, against R Legendre and S Legendre who were the driver and owner of the other car involved in the accident. Mrs. Neville did not swear the affidavit required pursuant to the Rules of Civil Procedure which provides that only the Children’s Lawyer or the Public Guardian and Trustee may act as a litigation guardian for a plaintiff or applicant under a disability until the prescribed affidavit has been filed.

On May 25, 2015, Bayden changed lawyers, and ID, Bayden’s grandmother, swore the affidavit as his new litigation guardian. Following this, ID then gave notice to the City of Sudbury of a potential claim against it. In October 2015, a court order ID was substituted as Bayden’s litigation guardian in the case. A motion was then made by Bayden to amend the Statement of Claim to increase the quantum of damages sought, to add multiple defendants including Ms. Neville, the City of Sudbury, and Wallbridge (his previous counsel).

The City of Sudbury opposed this motion on two grounds:

1. The claim against it was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24; and,
2. The claim was barred because Bayden failed to provide notice within ten days of the accident, pursuant to s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25.

The City of Sudbury was unsuccessful on both counts and appealed the decision, submitting that the motion judge erred in holding that the claim against it was not statute-barred. The City of Sudbury took the position that the Limitations Act, 2002, specifies that a minor is represented in a claim as soon as anyone takes steps on his behalf regarding the claim, not when a Statement of Claim is issued. Thus, the City of Sudbury argued Bayden was represented by Ms. Neville when she signed the contingency agreement with Wallbridge, or if not then, then when she signed the application for SABs (statutory accident benefits) on his behalf in October 2011. The City of Sudbury argues the limitation period had long expired by the time of Bayden’s motion.

The City of Sudbury also submitted that the motion judge made an error in finding that notice had been provided to it within the 10-day period set out in Municipal Act, 2001. The City of Sudbury argued the 10-day clock had began to run, at the latest, in June 2014 when Wallbridge issued a Statement of Claim in which Ms. Neville set herself out as Bayden’s litigation guardian.

The Court of Appeal rejected the City’s first submission, but gave effect to the second submission on the 10-day limitation period.

The Court of Appeal upheld the motion judge’s finding that Bayden was not represented by a litigation guardian until June 11, 2014. This was the point when the Statement of Claim was issued against the Legendres. The Court of Appeal noted that in those cases where a claim is made by a minor, the Limitations Act, 2002 requires that the minor be “represented by a litigation guardian in relation to the claim”. This clearly allows the litigation guardian to do anything in a proceeding that the party under disability would ordinarily be required or authorized to do.

The Court of Appeal concluded that Ms. Neville’s contingency fee agreement with Wallbridge did not result in Bayden being represented by a litigation guardian in relation to the claim since there was no proceeding at that time. In addition, in the SABs application Ms. Neville indicated she was Bayden’s “guardian”, not as his litigation guardian. The Court of Appeal ruled that Ms. Neville could have been signing as her son’s substitute decision maker or simply using the word colloquially.

The Court of Appeal then rejected Bayden’s and Wallbridge’s submission that Bayden was “not represented by a litigation guardian in relation to the claim” in June 2014, noting Ms. Neville herself as her son’s litigation guardian to the Legendres. Ms. Neville failed to file the required affidavit making the proceeding “an irregularity and not a nullity”. The Court of Appeal ruled that delaying the start of limitation period on the basis that the litigation guardian had not filed the required affidavit would result in any limitation period becoming unlimited as a litigation guardian could easily delay filing any affidavit indefinitely.

On this basis the Court of Appeal concluded Bayden was represented by a litigation guardian on June 11, 2014, and the two-year limitation period began to run on that date. He filed his motion to amend his claim on September 15, 2015, which is within the two years, and therefore the motion judge was correct in finding that the Limitations Act did not bar this claim against the City of Sudbury.

Regarding the notice issue, the Municipal Act provides no action can be brought against a municipality for failing to keep a highway in a reasonable state of repair unless notice is given to the municipality within 10 days of the occurrence of the injury. This notice requirement is like a limitation period, but action will not be barred if a plaintiff provides reasonable excuse for not giving notice, and if the lack of notice does not prejudice the defense of the municipality. In this case though, there was nothing in the record to suggest that when Ms. Neville acted as Bayden’s litigation guardian on June 11, 2014, the extent of Bayden’s injuries were unknown. Ms. Neville clearly was capable of forming the intent to sue the City of Sudbury within the prescribed notice period. She had even retained counsel to pursue claims on her son’s behalf.

Dissenting in part with the Court of Appeal majority decision, Roberts J.A., held the motion judge erred in making a final determination with respect to the limitation and notice period issues. She noted that it was a pleadings motion, not a motion to determine any issue of law prior to trial, or summary judgment motion. Roberts J.A., noted that no declaratory relief was sought, and that there were credibility and factual issues that should have been left to determination at trial, or on a summary judgment motion. Roberts J.A. indicated that she would have allowed the appeal to the extent of granting leave t to plead limitation and notice period defences.

On this basis, the appeal was allowed by the Court of Appeal, setting aside the motion judge’s order, and ordering that the claim against the City of Sudbury be dismissed.

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