



COURT OF APPEAL FOR ONTARIO

CITATION: Bergen v. Fast Estate, 2018 ONCA 484
DATE: 20180525

DOCKET: C64608

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Johan Bergen Jr.

(Appellant)
Plaintiff

and

The Estate of Jake Fast, deceased, and
the Estate of Frank Weibe, deceased, and Johan Bergen Sr.

(Respondents)
Defendants

and

Aviva Insurance Company
    of Canada added by Order pursuant
to Section 258(14) of the Insurance Act, R.S.O. 1990, c.I.8

(Respondent)
Third Party

David B. Williams and M. Mana Khami, for the appellant

Christopher J. Prince, for the respondent third party

Heard: May 11, 2018

On appeal from the judgment of Justice Peter B. Hockin of the
    Superior Court of Justice dated October 27, 2017, with reasons reported at 2017
    ONSC 6328.

REASONS FOR DECISION

[1]

The appellant appeals
    from the dismissal of his action against the defendant, Johan Bergen Sr.
On appeal, this case turns principally on the application
    of the presumption under s. 5(2) of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.

[2]

The appellant was one of three
    occupants involved in a single motor vehicle accident on February 5, 2012. Two
    of the occupants tragically died of their injuries. The appellant was also
    seriously injured.

[3]

The appellant commenced an action on
    January 31, 2014, against the deceased defendants estates but not, at that
    time, against Johan Bergen Sr.  Johan Bergen Sr. is the appellants father and
    owner of the vehicle involved in the accident that gives rise to the
    appellants claim. In the original statement of claim, the appellant was erroneously
    described as the owner of the vehicle.

[4]

On July 31, 2014, the appellants
    counsel learned from counsel for the estate of Jake Fast that the owner of the
    vehicle was Johan Bergen Sr. and not the appellant. On October 28, 2014, the appellant
    obtained an
ex parte
order adding
    Johan Bergen Sr. as a defendant.

[5]

The third party respondent, Aviva, subsequently
    brought a successful motion for summary judgment to dismiss the action against
    Johan Bergen Sr. on the basis that it was statute-barred. The motion judge
    determined that there was no genuine issue requiring a trial on the limitation
    period issue. Specifically, he found that the appellant had failed to put his
    best foot forward and rebut the statutory presumption under s. 5(2) of the
Limitations
    Act, 2002
, that he knew of the matters referred
    to in clause 5(1)(a) of the Act on the day the act or omission on which his
    claim is based took place.

[6]

Section 5(1) of the
Limitations
    Act, 2002
, provides as follows:

(1)  A claim is discovered on the
    earlier of,

(a) the day on which the person with
    the claim first knew,

(i)  that the injury, loss or damage
    had occurred,

(ii) that the injury, loss or damage
    was caused by or contributed to by an act or omission,

(iii) that the act or omission was that
    of the person against whom the claim is made, and

(iv) that, having regard to the
    nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek to remedy it; and

(b) 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 matters referred to in clause (a).

[7]

The appellants principal submission on
    appeal is that the motion judge erred in his treatment of the discoverability
    of the appellants claim against the owner of the vehicle, Johan Bergen Sr. Specifically,
    the appellant submits that he did not reasonably know that an action against
    his father was the appropriate remedy under s. 5(1)(a)(iv) of the
Limitations
    Act, 2002
, until his counsel received notice
    from Aviva that it would take an off coverage position because the occupants of
    the motor vehicle were intoxicated at the time of the accident. It was then
    that the ownership of the vehicle became a live issue and that the limitation
    period started to run.

[8]

We do not accept these submissions.

[9]

It is well established that a
    limitation period begins to run on the date that the claim was discovered.  The
    statutory presumption of the discoverability of the claim provided for under s.
    5(2) was explained by this court in
Fennell v. Deol
, 2016 ONCA 249, at para. 21, as follows:

Section 5(1)(a) considers when the
    person with the claim had actual knowledge of the material facts underlying the
    claim. Unless the contrary is proved under s. 5(2), the person is presumed to
    have known of the matters in s. 5(1)(a)(i) through (iv) on the date of the
    events giving rise to the claim.

[10]

In our view, the notice from Aviva of
    its off coverage position is irrelevant because the identity of the owner and
    the possibility of a claim against him were presumed known as at the date of
    the accident. Under the statutory presumption of s. 5(2), the appellant was
    presumed to know who the owner of the vehicle was and that an action was an
    appropriate remedy against him. The appellant bore the onus of leading evidence
    to displace the statutory presumption of the date on which he discovered his claim
    against Johan Bergen Sr.:
Miaskowski v. Persaud
, 2015 ONCA 758, at para. 27.  He failed to do so.

[11]

In response to Avivas motion for summary
    judgment, no evidence was filed that had the effect of rebutting the
    presumption that as at the date of his accident, the appellant knew he was not
    the owner of the motor vehicle but his father was. In particular, there was no
    evidence from either the appellant or his father, Johan Bergen Sr., both of
    whom were clients of the law firm when the appellants claim was issued. Given
    the appellants obligation to put his best foot forward in response to
    Avivas motion for summary judgment and his onus to rebut the presumption under
    s. 5(2), the motion judge was entitled to assume that there would be no
    additional evidence at trial to assist the appellant on these issues.

[12]

Absent any evidence rebutting the
    presumption, the appellant and his counsel (as the appellants agent) were
    presumed to know who owned the vehicle prior to the issuance of the statement
    of claim. Accordingly, they were also presumed to know at that time that the
    owner was a potential defendant and that an action against the owner would therefore
    be an appropriate remedy to recover damages for the appellants injuries. That
    it was not strictly necessary to add the owner of the vehicle as a defendant at
    the time the statement of claim was issued does not determine whether an action
    against the owner was an appropriate remedy. As the motion judge stated, [
t]
here could never be an
    argument that the appropriate remedy against the owner of the vehicle was
    anything other than to include him as a defendant in the action when the
    Statement of Claim was issued.

[13]

In our view, the motion judge properly
    took into account all the circumstances relevant to the issue of
    discoverability in this case. We see no error in his decision and accordingly
    dismiss the appeal.

[14]

Aviva is entitled to its costs of the
    appeal in the agreed upon amount of $12,500, inclusive of disbursements and
    applicable taxes.

Paul
Rouleau J.A.

L.B. Roberts J.A.

Fairburn J.A.


