Clarifying the Relationship Between Threshold Damages and the Limitation Period in Vehicle Accident Matters
By: Martin Zatovkanuk
Introduction
Justice Perell’s recent decision in Pereira vs. Contardo, 2014 ONSC 6894 clarified two important issues when a plaintiff brings an action more than two years after the accident and seeks general damages: namely, (1) arguing that injuries which meet threshold were reasonably discoverable within the limitation period is at odds with disputing a plaintiff’s claim that threshold was met, and (2) there is only one limitation period for both general and special damages for motor vehicle accident claims.
1. When Arguing for Discoverability Contradicts Disputing Threshold
When the victim of a motor vehicle accident claims to have discovered that their injuries surpass threshold long after the two year limitation period, it may not always be advisable for those wishing to dispute this to argue that threshold should have been discoverable, according to Justice Perell’s holding in Pereira.
In Pereira, the plaintiff was injured in a car accident in December, 2008, but only filed his Statement of Claim in March, 2013, more than two years after the conclusion of the presumptive limitation period. The defendant brought a motion to obtain summary judgment to dismiss the action as statute barred. The defendant did this while reserving the right to dispute the plaintiff’s claim that he met threshold.
The motions judge, Justice Belobaba, found that the delay in filing the Claim was reasonable, and dismissed the motion. The defendant appealed this decision, arguing, among other things, that the plaintiff and his counsel had been in a position objectively to determine that the plaintiff suffered chronic pain within the limitation period, and further that he knew or ought to have known that he met threshold.
In Justice Perell’s decision, he identified a contradiction in the defence’s argument: namely, the defendant’s claim that the plaintiff should have known that his injuries met threshold contradicts his submission that the injuries failed to meet threshold. Justice Perell put it in the following way:
In the circumstances of the immediate case, [the defendant’s] submission that there ought to have been objective knowledge that the threshold had been exceeded is diffident and somewhat coy because he is reserving the right to challenge that the threshold has been satisfied and there is no evidence and only argument about whether [the plaintiff’s] lawyer failed to meet the standard of a reasonable competent lawyer and ought to have commenced an action based on the information that was available. Pereira v. Contardo, 2014 ONSC 6894 (CanLII), page 11
Pereira, therefore, highlights the importance of proceeding carefully when challenging a claim brought more than two years after an accident. If a defendant wishes to argue that an injured party has not met threshold, it does not help to argue that, in any event, a lengthy delay was unreasonable because threshold had been reasonably discoverable.
In practice, if the broader plaintiff bar becomes aware of this decision, defendants may begin to admit threshold has been met when they wish to challenge discoverability.
2. Claims Stemming From the Same Accident Share the Same Limitation Period
In addition, the decision in Pereira affirms that there is only one limitation period for claims involving threshold and claims involving pecuniary losses.
Another of the defendant’s submissions in Pereira was that there should be separate limitation periods for causes of action arising from general damages and causes of action arising from special damages. Justice Perell took this opportunity to reaffirm his decision in Ng v. Beline:
A plaintiff with a motor vehicle accident claim should receive the most favourable treatment possible. Accordingly, the measure of whether he or she has a claim is governed by the discoverability of the claim for non-pecuniary damages. Otherwise, accident victims in virtually every case would be required to sue within to years of an automobile accident to protect their potential pecuniary and potential non-pecuniary claims without waiting to see if there was a worthwhile non-pecuniary claim. Ng v. Belin, [2008] CanLII 51931 (ON SC), page 2
Conclusion
A claim for damages arising from a motor vehicle accident brought long after the conclusion of the presumptive limitation period may seem like a prime target for summary judgment. What Pereira shows is that the court will always ensure that the limitation period remains broad and applied in a just and reasonable manner, especially when the defendant makes contradictory submissions with respect to threshold.