



COURT OF APPEAL FOR ONTARIO

CITATION: Yasmin v. Alexander, 2016 ONCA 165

DATE: 20160229

DOCKET: C60796

MacPherson, van Rensburg and Miller JJ.A.

BETWEEN

Rukhsana Yasmin

Plaintiff (Appellant)

and

Lenard Alexander

Defendant (Respondent)

William G. Scott, for the appellant

Michael Chadwick, for the respondent

Heard: February 24, 2016

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated June 22, 2015.

ENDORSEMENT

[1]

This is an appeal of the dismissal of an action as statute-barred. At
    issue is when the appellant Rukhsana Yasmin ought reasonably to have known that
    the impairment from her injuries was serious and permanent, such that her claim
    for personal injury damages as a result of a motor vehicle accident was
    discoverable under s. 5 of the
Limitations Act, 2002
, S.O. 2002, c.
    24, Sched. B.

[2]

Yasmin claims that on August 16, 2008, while walking on Silvercreek Road
    in Mississauga, she was struck by a car owned and operated by the respondent
    Lenard Alexander, and that as a result she has sustained serious, lasting and
    permanent personal injuries.

[3]

Yasmin retained a lawyer, K., who pursued her claim for statutory
    accident benefits. K. did not, however, commence a tort action. In 2011 Yasmin
    sued K., alleging negligence in his failure to commence the tort action within
    the prescribed limitation period. K. defended the action, asserting that his
    retainer was limited to claiming accident benefits.

[4]

At the request of K.s lawyers, Yasmins new counsel issued a statement
    of claim on February 17, 2012 against Alexander. Alexander moved for summary
    judgment claiming that the action was statute-barred.

[5]

K.s lawyers obtained an intervener order and responded on behalf of
    Yasmin to Alexanders motion. The intervener submitted that, to the extent that
    Yasmin sustained an injury that met the threshold under s. 267.5(5) of the
Insurance
    Act
, R.S.O. 1990, c. I.8 (permanent serious impairment of an important
    physical, mental or psychological function), her injury was not discoverable
    prior to February 17, 2010 (two years prior to the date on which the statement
    of claim was issued).

[6]

The motion judge granted the respondents motion and dismissed the
    action. He noted that the appellants claim may not meet the threshold under s. 267.5(5)
    of the
Insurance Act
, in which case she would have no right to sue. If
    the claim meets the threshold, then the question is when a person exercising
    reasonable diligence would have known this was the case. The motion judge
    concluded that, according to the available medical reports, from the date of
    the accident to February 10, 2010 (two years before the statement of claim was
    issued) little, if anything, had changed. Even if admissible, the appellants
    statement in her discovery that she believed she would get better did not
    address the objective test for discoverability set out in s. 5(1)(b) of the
Limitations
    Act, 2002.
The appellant, or her former lawyer, did not exercise
    reasonable diligence to determine the possibility that her injuries were
    serious and permanent. The appellant failed to persuade the court that the
    seriousness and permanence relied upon and asserted were not discoverable
    within the limitation period.

[7]

The appellant makes three arguments on appeal.

[8]

First, the appellant says the motion judge erred in finding that she had
    no right to sue at all if her claim did not meet the threshold under the
Insurance
    Act.
The appellant says that this finding was not relevant to the issue on
    the motion because it amounted to a pre-trial determination that her injuries
    did not meet the threshold.

[9]

We disagree. The motion judge, in stating that the appellant would have
    no right to sue if she did not meet the threshold was simply stating the obvious
     that the appellant would have to meet the threshold to be successful in her
    action. There was no pre-trial determination by the motion judge that the
    appellants injuries failed to meet the threshold, and this was not, on any
    reasonable interpretation of his reasons, the basis for his dismissal of her
    claim.

[10]

Second,
    the appellant says that the motion judge erred in finding that she did not
    exercise reasonable diligence to determine the possibility that her injuries
    were serious and permanent. The appellant contends that she acted with
    reasonable diligence by attending for treatment and assessments by the health
    care providers and doctors provided by her accident benefits insurer, that she
    underwent x-rays on three occasions, consulted her family doctor and was
    assessed by nine different doctors and health practitioners each of whom
    delivered a report. None of the reports indicated that she had a permanent
    injury.

[11]

We
    do not give effect to this argument.

[12]

Although
    prior to February 17, 2010 none of the medical reports indicated that the
    appellant had a permanent impairment, the reason this is not mentioned in the
    reports is because neither the appellant nor her counsel sought an opinion with
    respect to this issue. According to the appellant, she had retained K. to
    pursue her claim. K., who denied such a retainer, had not taken any steps to
    investigate whether the appellants injuries met the threshold. The evidence
    suggested no real change in the appellants condition since 2008; indeed the
    appellants new counsel based his opinion that she met the threshold on her
    description of her injuries together with an x-ray report from 2009. The motion
    judge concluded that it was unreasonable for the appellant to have failed to
    make the inquiry having regard to her injuries and condition. In these
    circumstances, there was no error in the motion judges finding that the
    appellant failed to act with diligence to determine whether her injuries were
    serious and permanent, and that her claim ought reasonably to have been
    discovered before February 17, 2010.

[13]

Finally,
    the appellant contends that the motion judge erred in failing to consider the
    fact that the defendant obtained an orthopaedic report dated September 6, 2013
    that states that the appellant had not sustained a serious impairment of an
    important bodily function. The effect of this report, according to the
    appellant, is to toll the limitation period.

[14]

Again,
    we disagree.

[15]

The
    defence orthopaedic report does not assist the appellant. It is simply an
    opinion obtained in the course of the litigation that no serious impairment had
    occurred, and expresses the opinion that the appellants condition had almost
    entirely resolved. This is not evidence, as the appellant asserts, that she had
    not yet met the threshold, nor can it be determinative of whether the
    appellant, who had commenced an action seeking damages for her injuries, ought
    reasonably to have discovered that her impairment was serious and permanent.

[16]

For
    these reasons, the appeal is dismissed. Costs to the respondent in the sum of
    $7,500, inclusive of applicable taxes and disbursements.

J.C. MacPherson J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


