



COURT OF APPEAL FOR ONTARIO

CITATION:
Yelda v. Vu, 2014 ONCA 353

DATE: 20140505

DOCKET: C57665

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Valmire Yelda

Plaintiff (Appellant)

and

Thi
    Duyen Vu, also known as Peter Vu,

Diane
    Vu, Selena Vi, also known as Selena Ferreira Vu or, Ines Vu,

Ivo
    Curzi, and State Farm Mutual Automobile Insurance Co.

Defendants (Respondents)

Don Morris, for the appellant

Chris G. Paliare and Gregory Ko, for the Vu respondents

Stuart Aird, for the respondent Ivo Curzi

Heard: April 25, 2014

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated August 9, 2013, on a motion for summary
    judgment and Justice Arrells costs judgment, dated September 20, 2013.

By the Court:

I.        Introduction

[1]

On July 19, 2002, the respondent Selena Ferreira Vu gave her co-worker,
    the appellant Valmire Yelda, a ride home from work.  Enroute, while Ms. Vu was
    driving and the appellant was sitting in the front passenger seat, the Vu
    vehicle was struck by a pickup truck driven by the respondent Ivo Curzi.  On
    May 25, 2011, almost nine years later, the appellant sued Selena Vu and Mr.
    Curzi, together with various of their family members and State Farm Insurance
    Company (State Farm), for damages in the amount of $3.35 million for serious
    personal injuries allegedly suffered by her in the collision.  The action
    against Diane Vu and the insurance company was subsequently discontinued (Diane
    Vu) or dismissed (State Farm).

[2]

After the exchange of pleadings and the conduct of discoveries, the Vu
    defendants and Mr. Curzi moved for summary judgment on the basis that the
    appellants action was barred by the expiry of the applicable two-year
    limitation period under the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B. (the Act).

[3]

The appellant claimed that she suffered a permanent serious impairment
    of an important physical, mental or psychological function as a result of
    injuries sustained by her in the motor vehicle accident.  She further alleged
    that she did not discover that her injuries met this threshold for a claim
    until December 29, 2009, when she learned of the results of an x-ray conducted
    in November 2009 that identified significant injuries to her back.  As a
    result, the appellant maintained, the applicable two-year limitation period
    began to run on December 29, 2009 and her May 2011 action was commenced in
    time.

[4]

The motions judge disagreed.  He held that on the appellants own
    descriptions of her condition, she should have taken steps to investigate her
    back pain by 2005 or 2006.  Had she done so, she would have known, at the very
    least, in November 2008 that she had a serious and permanent impairment of
    important physical functions. As a result, the applicable limitation period
    expired in November 2010, at the latest, and the appellants action was
    statute-barred.

[5]

Accordingly, by judgments dated August 9 and September 20, 2013, the
    motions judge granted the respondents summary judgment motions, dismissed the
    appellants action and awarded costs in favour of the respondents.

[6]

The appellant appeals from the summary judgment, seeks leave to appeal
    the motions judges costs award and, if leave be granted, appeals against the
    costs award.

II.       Issues

[7]

In her factum, the appellant attacked the motions judges summary judgment
    ruling on multiple grounds.  However, during oral argument before this court,
    and before the motions judge, the appellant conceded that this was a suitable
    case in which to decide the limitations issue by way of summary judgment.  As a
    result, there are only two remaining issues on this appeal:

(1)

Did the
    motions judge err by finding that the appellant ought to have discovered the
    existence of her potential claim before May 25, 2009?

(2)

Did the
    motions judge err in his discoverability analysis by failing to consider the
    appellants individual characteristics and circumstances?

III.      Discussion

(1)

Motions Judges Discoverability Finding

[8]

The record before the motions judge was essentially non-controversial on
    material issues.  There were no contentious facts alleged by any of the parties
    relating to the threshold for the appellants claim under s. 267.5(5) of the
Insurance
    Act
, R.S.O. 1990, c. I.8, discoverability, and due diligence.  Indeed, in
    support of their limitation argument, the respondents relied almost exclusively
    on the appellants own descriptions of her medical condition found in discovery
    evidence and various statements she made.

[9]

Based on her own evidence, the appellant experienced what she described
    as really bad lower back pain half the time each month following the
    accident.  According to the appellant, on occasion between 2002 and 2009 the
    severity of her pain prevented her from functioning, she was really never pain
    free at any time, and she struggled with ongoing back pain for ten years following
    the accident.  At all times, the appellant attributed her pain solely to
    injuries sustained by her in the collision.

[10]

However,
    apart from occasional visits to hospital emergency departments, the appellant
    took no active steps to investigate what she said was persistent, ongoing back
    pain from the summer of 2002 until September 2009, when she was referred for
    x-rays of her lumbar spine.  The x-ray was carried out on November 13, 2009 and
    eventually led to corrective back surgery.

[11]

Moreover,
    throughout the seven-year period between the summer of 2002 and the fall of
    2009, the appellant continued to work full time except for a one-year maternity
    leave from November 2007 to October 2008.  Although she attended at various
    hospital emergency departments on three occasions (March 2005, October 2006 and
    November 2008), and continued to see family physicians in the normal course, she
    took no steps to investigate the cause of what she maintained was consistent
    and debilitating lower back pain.

[12]

In
    holding that a reasonable person would have made the necessary medical
    investigations before November 2009 and determined the serious and permanent
    nature of the back injury, the motion judge made the following findings:

(1)

it was
    implausible that a reasonable person would consistently take over-the-counter
    pain medication for many years for pain she believed was solely caused by the
    car accident, and yet do nothing to further investigate the cause;

(2)

it was
    implausible that a reasonable person could have pain consistently and really
    bad pain 50 percent of the time and do nothing to investigate the cause;

(3)

it was
    implausible that someone who was unable to function a couple of days per month
    because of pain would make no investigation; and

(4)

it was
    implausible that a reasonable person would find her pain so bad on three
    occasions (2005, 2006 and 2008) that she attended an emergency ward for relief
    and yet would do nothing further to investigate the reasons for her pain, after
    being told by emergency room doctors that her pain would subside, which was not
    the case.

[13]

The
    motions judge therefore concluded, given the evidence as a whole, that the appellant
    ought to have known, well before May 25, 2009, that because of her serious back
    injury, she had a serious and permanent impairment of her ability to function
    on a day-to-day basis.

[14]

On
    this record, this critical finding was open to the motions judge.  We see no
    palpable and overriding error in this finding and, thus, there is no basis for
    appellate intervention:
Hryniak v. Mauldlin
, 2014 SCC 7, at para. 81.

(2)

Consideration of the Appellants Individual

Characteristics
    and Circumstances

[15]

Under
    s. 5(1) of the Act, a claim is discovered on the earlier of the day on which
    the person with a claim first knew of the existence of the claim and the day
    on which a reasonable person with the abilities and in the circumstances of the
    person with the claim first ought to have known of the existence of the claim.

[16]

The
    appellant contends that the motions judge erred in his consideration of
    discoverability under s. 5(1) by failing to take account of her individual
    characteristics and circumstances.  We reject this contention.

[17]

The
    appellant did not adduce any evidence that her particular characteristics and
    circumstances were such that even if the hypothetical reasonable person should
    have been aware of the nature of her injury, she could not have discovered her
    claim prior to November of 2009.  Nor was this argument advanced before the
    motions judge.  There was, therefore, no basis for the motions judge to make
    such a finding.

IV.     Disposition

[18]

Accordingly,
    for the reasons given, the appeal from the motions judges summary judgment
    ruling is dismissed.  Since the appellants motion for leave to appeal the
    motions judges costs order is conditional on success on the main appeal, leave
    to appeal costs is denied.  In the unusual circumstances of this case, the
    interests of justice do not support any award of the costs of the appeal.

Released: DD May 5, 2014

Doherty J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


