



COURT OF APPEAL FOR ONTARIO

CITATION: Baig v. Mississauga, 2020 ONCA 697

DATE: 20201104

DOCKET: C67504

Roberts,
    Trotter and Thorburn JJ.A.

BETWEEN

Mirza Habib Baig

Plaintiff

(Appellant)

and

The Corporation of the Town of Mississauga

Defendant

(Respondent)

Mirza Habib Baig, acting in person

Robert Ryan, for the respondent

Heard: October 28, 2020 by
    videoconference and teleconference

On appeal from
    the order entered on August 30, 2019 by Justice Gisele M. Miller of the
    Superior Court of Justice with reasons at 2019 ONSC 5111.

REASONS FOR DECISION

Introduction

[1]

On May 21, 2013, Mr. Baig fell off his bicycle
    and injured himself. More than four years later, on September 1, 2017, he
    issued a claim against The Corporation of the Town of Mississauga
    (Mississauga), seeking damages.

[2]

Mississauga moved for summary judgment, alleging
    that the two-year limitation period under s. 4 of the
Limitations Act
,
    S.O. 2002, c. 24, Sch. B.  had expired. The motion judge determined that, on
    the materials before her, there was no genuine issue for trial. The motion was
    granted and Mr. Baigs action was dismissed.

[3]

Mr. Baig appeals from that decision. For the
    reasons below, the appeal is dismissed.

Factual Summary and Chronology

[4]

Mr. Baig fell off his bike after travelling
    across a pedestrian bridge. He went to the hospital that same day, where he was
    diagnosed with a broken finger and superficial facial abrasions.

[5]

Eight days later, on May 29, 2013, Mr. Baig
    submitted a Claim Report to Mississauga. He described his injuries: Facial
    lacerations, concussion/temporary blackout, broken bone in finger. Mr. Baig
    sought compensation and recommended remediation of the hazard that led to his
    fall. On the form that he completed, it stated: NOTE: THERE IS A 10 DAY NOTICE
    FOR PROVIDING THE CITY WITH NOTICE OF CERTAIN TYPES OF CLAIMS AND A TWO YEAR
    LIMITATION period for bringing an action in respect to all claims.

[6]

Mississauga assigned an adjuster to investigate
    the claim. However, Mr. Baig refused to cooperate with the adjuster, apparently
    based on legal advice. On May 5, 2014, a claims analyst sent Mr. Baig a letter
    advising him that he had unsuccessfully attempted to contact him many times and
    that, if Mr. Baig was not in contact within 30 days, his file would be closed.
    This letter also advised Mr. Baig of the limitation period. There was no
    further communication and the file was closed in June of 2014.

Mr. Baigs Arguments at the Summary
    Judgment Motion

[7]

Mr. Baig represented himself on the summary
    judgment motion. He advanced two arguments: (1) he did not discover the extent
    of his injuries until years after the accident; and (2) he lacked the capacity
    to commence litigation within the limitation period due to a disability and a
    compromised mental state. The motion judge rejected Mr. Baigs arguments.

Discoverability

[8]

Mr. Baig was permitted to amend his Statement of
    Claim to allege that, between late 2016 and early 2019, he discovered the
    following injuries arising from his accident: a laceration to his lip would not
    improve with surgery; he would not regain full use of his previously broken
    finger because of osteo-arthritis; and he suffers from carpal tunnel syndrome, moderate-severe
    depression, post-concussion syndrome, and osteo-arthritis in his neck.

[9]

The motion judge found that Mr. Baig discovered the
    material facts of his claim as of May 22, 2013 (the day he went to the
    hospital), or at the latest on May 29, 2013 (the day he submitted his claim to
    Mississauga). She held that the subsequent discovery of the severity of his
    injuries did not extend the limitation period.

[10]

The motion judge made no error. As this court
    held in
Liu v. Wong
, 2016 ONCA 366, leave to appeal refused [2016]
    S.C.C.A. No. 264, at para. 7: the law is quite well established that it is
    knowledge of the material facts necessary to support the cause of action that
    triggers the commencement of the litigation period. Knowledge of the extent of
    the damages is not necessary.

[11]

Mr. Baig was aware of the necessary facts to
    support a claim against Mississauga almost immediately after his fall. This was
    confirmed by the submission of his claim for compensation from Mississauga
    eight days later. He was twice advised of the two-year limitation period
    related to his claim for compensation. That his injuries appear to have worsened
    did not extend the limitation period.

[12]

We dismiss this ground of appeal.

Capacity

[13]

Mr. Baig claimed that he lacked the capacity to
    commence an action against Mississauga because he was under a disability. He
    relied on evidence that he receives a disability pension from the Province of
    Ontario. He also relied on academic articles filed with the motion judge.

[14]

The motion judge accepted that, while Mr. Baig
    had proffered evidence of a mental illness, there was no evidence that it rose
    to the level of incapacity for the purposes of s. 7 of the
Limitations Act
.
    After reviewing the chronology of events set out above, and noting that Mr.
    Baig had received legal advice on the issue, the motion judge held at paras.
    42-43 of her reasons:

There is a complete absence of any medical
    evidence to show that Mr. Baig by reason of his mental illness, the injuries
    suffered from the bicycle crash or his treatment at the hands of the insurance
    adjuster  rendered him incapable within the limitation period.
Medical
    documentation from 2017 and 2018 indicating that Mr. Baig has some cognitive
    deficits falls well short of establishing that he is now or was incapable
    during the limitation period
.

I note as well that Mr. Baig was articulate
    and organized in his preparation of and presentation of material to the Court
    and as well in his submissions.
There was nothing
    in his presentation which caused me to doubt that he had the capacity to
    commence the action within the limitation period. [Emphasis added.]

[15]

In our view, the motion judge correctly applied
    s. 7 of the
Limitations Act
. As she observed, under s. 7(2), a
    plaintiff is presumed to have been capable of commencing a proceeding, unless
    the contrary is proved on a balance of probabilities:
Carmichael v.
    GlaxoSmithKline Inc
.
, 2020 ONCA 447, 151 O.R. (3d) 609, at paras.
    77-78. As the motion judge found, it was not proved in this case.

[16]

This ground of appeal is dismissed.

Other
    Grounds of Appeal and Fresh Evidence Application

[17]

Mr. Baig advances other grounds of appeal
    related to the conduct of the hearing. He also applies to adduce fresh evidence
    to advance these grounds. As we explain below, the fresh evidence is not
    admissible on appeal. Even if we were to admit the fresh evidence, it would
    have no impact on the motion judges decision.

(1)

The Motion Judge Was Not Biased

[18]

Mr. Baig submits that an apprehension of bias
    arose from the beginning of the motion being appealed, and continued throughout
    the rest of the motion. In his fresh evidence affidavit, Mr. Baig recounted an
    exchange that he had with the motion judge in court about a report from one of
    his doctors. According to Mr. Baig, after reading the report, the motion judge
    looked at him and, in a harsh tone, said, youre fine. Mr. Baig subsequently
    told his doctor what happened, and he said: Thats not what I said at all.

[19]

Mr. Baig further submitted that the motion judge
    was not interested in hearing him and addressed him in a rude manner.

[20]

There is no merit to the submission that the
    motion judge was biased. First, Mr. Baig relies on his own assessment of what
    happened at the motion. He should have ordered the transcript of the
    proceedings. Moreover, the statement attributed to his doctor is hearsay and is
    not receivable as fresh evidence.

[21]

Even if Mr. Baigs description of what happened
    could be taken at face value, it does not establish a claim of bias. By all
    accounts, the hearing before the motion judge was lengthy. Mr. Baig had ample
    opportunity to state his case. The motion judge permitted him to file various
    documents at the hearing; documents that had not previously been served on
    Mississauga. Moreover, in the excerpt from the motion judges reasons
    reproduced in para. 14, above, the motion judge acknowledged the helpful manner
    in which Mr. Baig presented his case.

[22]

We dismiss this ground of appeal.

(2)

There Was No Breach of R. 15.01(1)

[23]

Mr. Baig submits that the motion judge infringed
    r. 15.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. He
    contends that, being a person under disability, he was entitled to be
    represented by counsel. As already noted above, the motion judge found that Mr.
    Baig was able to represent himself in court. Moreover, the issue was not raised
    with the motion judge, or any of the other judges before whom the motion was
    spoken to in the eight-month period between the service of the summary judgment
    motion and the day of the hearing.

[24]

We reject this ground of appeal.

(3)

The Appellants Rights Were Not Breached

[25]

Mr. Baig submits that his rights under s. 15 of
    the
Canadian Charter of Rights and Freedoms and the Ontario Human Rights
    Code
, R.S.O. 1990, c. H.19 were infringed as a result of discrimination
    based on disability. Mr. Baig has failed to establish any factual basis for
    this submission and we would not give effect to this ground of appeal.

(4)

Anonymizing the Title of Proceedings

[26]

In his fresh evidence application, Mr. Baig
    requests that the title of proceedings be anonymized in order to protect his
    privacy interests; a request that the motion judge refused. Instead, she sealed
    some of Mr. Baigs medical records.

[27]

We do not require fresh evidence to address this
    request. It is within the realm of legal argument. Nonetheless, we would take
    the same approach as the motion judge and extend the sealing order.  There is
    no legal basis to amend the title of proceedings in the manner that Mr. Baig
    requests.

(5)

Costs

[28]

Lastly, Mr. Baig seeks leave to appeal the
    motion judges costs award against him of $980. In our view, there is no basis
    to set aside this award, which was very reasonable in the circumstances.

Conclusion and Disposition

[29]

The appeal from the summary judgment order is
    dismissed. The application to adduce fresh evidence is dismissed. The
    application for leave to appeal the costs order is allowed, but the appeal is
    dismissed.

[30]

We award costs of the appeal to the respondent
    in the amount of $950, inclusive of taxes and disbursements.

L.B. Roberts J.A.

Gary Trotter J.A.

J.A. Thorburn J.A.


