



COURT OF APPEAL FOR ONTARIO

CITATION: Collins v. Cortez, 2014 ONCA 685

DATE: 20141007

DOCKET: C58279

Weiler, Laskin and van Rensburg JJ.A.

BETWEEN

Judy Collins

Plaintiff/Appellant

and

Gerry Cortez
and

State Farm Mutual Automobile
    Insurance Company

Defendant/
Respondent

William G. Scott, for the appellant

Arthur Camporese, for the respondent

Heard: September 5, 2014

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, dated July 29, 2013.

van Rensburg J.A.:

[1]

The appellant appeals from an order granting summary judgment and
    dismissing her action for damages following injuries sustained in a motor
    vehicle accident.

[2]

The respondent asserted that the action had been commenced more than two
    years after the accident, and was statute-barred under the
Limitations Act,
    2002
S.O. 2002, c. 24, Sched. B.

[3]

The motion was determined on the basis that there was no genuine issue
    requiring a trial because the appellant had not pleaded the facts relevant to
    discoverability of her cause of action in her statement of claim. No motion for
    leave to amend having been served, an amendment to the pleading was denied.

[4]

For the reasons that follow, I would allow the appeal, set aside the
    order granting summary judgment, extend the time to file a reply and grant
    leave to the appellant to deliver a reply with respect to when the cause of
    action was discovered.

[5]

The motion was brought by the respondent after discoveries and, as the
    motion judge observed, when the action was close to being set down for trial.
    The respondent filed an affidavit relying upon the timing of the issuance of
    the statement of claim on September 9, 2011, more than two years after the
    motor vehicle accident in which he and the appellant were involved. He noted
    that the statement of claim failed to plead when the plaintiff discovered the
    cause of action. The respondent relied on the expiry of the two year limitation
    period under the
Limitations Act, 2002
.

[6]

The appellant, in her affidavit responding to the motion, stated that,
    while the accident in which she had been injured took place on August 17, 2009,
    she had only become aware of the severity of her injuries on September 21, 2009,
    after an X-ray of her cervical and lumbar spine. The appellant would have a
    claim against the respondent for non-pecuniary loss in respect of injuries from
    the accident only if she met the threshold requirement that the injuries she
    sustained were serious and permanent as set out in s. 267.5(5) of the
Insurance
    Act
,

R.S.O. 1990, c. I.8. Her evidence was that she had realized
    her injuries would be permanent after her X-ray on September 21, 2009.

[7]

Instead of determining the motion based on the evidence, the motion
    judge granted summary judgment dismissing the claim because the appellant had
    not pleaded the discoverability facts in her statement of claim. He then gave
    effect to the presumptive limitation period of two years from the date of the
    accident, in accordance with s. 5(2) of the
Limitations Act, 2002
.

[8]

The cases relied upon by the motion judge in arriving at that conclusion
    and again by the respondent in this appeal deal with motions to add third
    parties as defendants to the action and to amend a statement of claim, after
    the alleged expiry of a limitation period: see
Wong v. Adler
(2004),
    70 O.R. (3d) 460 (S.C.), affd (2005), 76 O.R. (3d) 237 (Div. Ct.),
R.S v.
    A.W.T., No. 3 Corp.
, [2002] O.J. No. 5053 (S.C.), C
hesnie v. Snider
(2004), 73 O.R. (3d) 426 (S.C.) and
Parsons v. Deutscher Estate
,
    [2008] O.J. No. 3014 (Div. Ct.). These cases arose out of pleadings motions. For
    the most part, they stand for the principle that a motion to add a new party
    after the alleged expiry of a limitation period should in the normal course be
    considered based on the allegations in the proposed amended pleading, without
    the need to consider an evidentiary record on the limitation issue. They do not
    apply here.

[9]

This motion was for summary judgment dismissing a claim against an
    existing defendant, and not a motion to amend a claim after the expiry of a
    limitation period. It was a motion for judgment, not a pleadings motion.

[10]

In
    the normal course, if a limitations defence is raised, as here, in a statement
    of defence, and the plaintiff relies on the discoverability principle, the
    material facts relevant to discoverability should be pleaded in reply. I disagree
    with the conclusion of the motion judge that the appellant was required to
    plead the facts relevant to discoverability in her statement of claim. The
    expiry of a limitation period is a defence to an action that must be pleaded in
    a statement of defence: see
Beardsley v. Ontario
, [2001] O.J. No. 4574
    (C.A.), at para. 21 and
S.(W.E.) v. P.(M.M.)
(2000), 50 O.R. (3d) 70
    (C.A.), at paras. 37-38. As such, discoverability, which is relevant to the
    limitations defence, need not be anticipated by a plaintiff and addressed in
    her statement of claim: see
Huang v. Mai,
2014 ONSC 1156, 119 O.R.
    (3d) 117, at para 27 and
Metropolitan Toronto Condominium Corp. No. 1352 v.
    Newport Beach Development Inc
., [2012] O.J. No. 5682, at para. 116.

[11]

The
    proper course for a summary judgment court in determining a motion based on a
    limitations defence is set out in
Huang
, following the approach
    mandated by the Supreme Court of Canada in
Hryniak v. Mauldin
, 2014
    SCC 7. The court must consider the evidence in the motion record to determine
    whether there is a genuine issue requiring a trial, and, if so, determine
    whether it is in the interest of justice to use the enhanced powers under rules
    20.04(2.1) and (2.2) to determine the issue without a trial.

[12]

In
    the present case, the motion judge erred in failing to base his decision on the
    evidence on the motion and instead relying upon the failure of the plaintiff to
    plead discoverability facts in her statement of claim, which the judge
    described as a fatal mistake. Again, this was a summary judgment motion, the
    resolution of which depended on a consideration of the evidence adduced by the
    parties, and not their pleadings.

[13]

The
    respondent asserts that, even if the evidence on the motion were considered, it
    is insufficient to meet the requirements of s. 5(1) of the
Limitations Act,
    2002.
However, at this stage the question is whether there is a genuine
    issue respecting discoverability requiring a trial, and not whether the
    limitations defence is sure to fail. In my view, the evidence of the appellant,
    which was not contradicted, reveals such an issue. Indeed, the motion judge
    observed that the date when the appellants claim was discovered was less than
    clear.

[14]

I
    would therefore allow the appeal and set aside the order of the motion judge.

[15]

The
    appellants counsel sought an order from this court permitting an amendment to
    the statement of claim to plead the facts relevant to discoverability. As I
    indicated earlier, until the limitations issue is raised in defence, the
    plaintiff is not obliged to address discoverability. While a plaintiff may well
    decide to plead facts relevant to discoverability in her statement of claim, in
    the present case the issue is best joined through the delivery of a reply. No
    reply having been delivered, the appellant will have ten days from the date of
    this decision to deliver a reply setting out the material facts relied upon on
    the issue of discoverability.

[16]

The
    parties agreed on the disposition of costs depending on the outcome of this
    appeal. In accordance with their agreement, the appellant is entitled to costs
    of the appeal fixed at $5,000 inclusive of disbursements and applicable taxes,
    and there will be no costs of the motion before the motion judge.

Released: OCT 7, 2014                                                   K.
    van Rensburg J.A.

JL                                                                  
    I agree K.M. Weiler J.A.

I agree John Laskin J.A.


