




CITATION:
Malenfant v. Lavergne, 2011 ONCA 725



DATE: 20111121



DOCKET: C52375



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Rouleau JJ.A.



BETWEEN



Jules Malenfant and The Estate of Valerie Malenfant



Plaintiffs (Appellants)



and



Manon Lavergne



Defendant (Respondent)



Christopher Arnold, for the appellants



Brian Parnega, for the respondent



Heard and released orally:
November 15, 2011



On appeal from the judgment of
          Justice Timothy D. Ray of the Superior Court of Justice, dated June 7, 2010
          and the costs endorsement dated June 22, 2010.



ENDORSEMENT



[1]

The appellant was injured in a car accident in 1991.  He brought this
    action in 2004.  At trial, he submitted that the discoverability principle
    postponed the running of the two-year limitation period until May 2002.  Until
    then, he contended, he did not know and was incapable of knowing that his
    injuries from the car accident were serious and permanent and so met the
    threshold.

[2]

The trial judge rejected the appellants contention.  The trial judge concluded
    that the appellant knew or ought to have known he met the threshold well before
    May 2002.  The appellant challenges the trial judges conclusion.  However, the
    trial judges conclusion rests on several findings of fact, which were adverse
    to the appellants position.  We are not persuaded that these findings are
    tainted by any palpable and overriding error.  They are, therefore, entitled to
    deference from this court.

[3]

At bottom, the appellant rests his case on the medical opinions he
    received shortly after the accident and on Dr. Judsons expert evidence
    concerning cognitive impairment from alcohol and drug use.  Of the
    post-accident opinions, the appellant especially relies on Dr. Wannans opinion
    that he would get better with time.  However, Dr. Wannans evidence, which was
    accepted by the trial judge, was that he never communicated this opinion to the
    appellant.

[4]

The trial judge rejected Dr. Judsons opinion concerning the appellants
    cognitive impairment and its impact, and the trial judge had ample basis for
    doing so (see paras. 37 and 47 of his reasons).  In particular, it was apparent
    that Dr. Judsons opinion was based on an incomplete understanding of the
    appellants extensive history of interaction with doctors and others since
    1991.

[5]

On appeal, we must decide whether it was open to the trial judge to find
    that a reasonable person with the appellants abilities and his circumstances
    ought to have known of his claim before May 2002  in other words, that he
    ought to have known that he had a serious and permanent injury resulting from
    the 1991 accident.  In our view, the trial judge could reasonably make this
    finding.

[6]

The appellants own evidence shows that he knew that his injury was
    serious.  He was in constant pain and unable to work.  The only remaining
    questions are whether a reasonable person in these circumstances ought to have
    known the injuries were permanent and caused by the car accident.  We agree
    with the respondent that the trial judge could reasonably answer these questions
    yes.  Seventeen months after the accident the appellants pain was increasing
    and his treatment was not working.  At least by 1999, when he saw Dr.
    Patterson, he ought to have known his injuries were caused by the car accident
    and were permanent.

[7]

Accordingly, the appeal is dismissed, with costs of $13,500 plus
    disbursements and applicable taxes.

John Laskin J.A.

M. Rosenberg J.A.

Paul Rouleau J.A.


