Limitation of Actions
Appeal from the summary dismissal of the appellant's action for damages for personal injuries suffered in a motor vehicle accident on May 24, 2000. The action was dismissed as statute-barred. The appellant has continuous pain after her accident and an MRI in March 2006 revealed a disc bulge at two locations. Although the appellant’s family doctor had advised her by May 2004 that she suffered from a chronic pain condition that could continue for an indeterminate time, the MRI result provided objective proof of permanent injury, potentially sufficient to base a claim that would meet the statutory threshold and for which an award would likely exceed $15,000 statutory deductible.

The appellant commenced her action on Aug. 1, 2007. On a summary judgment motion be the defendant, the motion judge found that the action was statute-barred as of May 2006 because the appellant knew or ought to have known by May 2004, when she was diagnosed with chronic pain, that she had a claim for permanent serious impairment of an important physical, mental or psychological function. The motion judge did not address the issue of the $15,000 deductible.

It was held that the appeal was allowed. It was not the policy of the law or the intent of the limitations provisions to require people to commence actions before they knew that they had a substantial chance to succeed in recovering a judgment for damages. In arriving at his conclusions regarding when appellant ought to have been aware that she had a claim that potentially met the statutory criteria, the motion judge did not include the $15,000 deductible as one of those criteria. That omission constituted an error. The discoverability of a claim by appellant was a genuine issue for trial.

Everding v. Skrijel, [2010] O.J. No. 2534, Ont. C.A., per Feldman J.A. (Armstrong and Epstein JJ.A. concurring), June 15/10. Digest No. 3012-016 (Approx. 6 pp.)

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