[1] What is it "to know" whether a litigant has a cause of action? This summary judgment motion raises questions about when a plaintiff and her lawyer knew or ought to have known about the existence of a motor vehicle negligence cause of action that meets the threshold requirements of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.

[2] In this action, Xiao Jun Huang sues Yin Song Mai and Xiong Wang Chen in a personal injury action arising from a collision between a bicycle, which was being ridden by Ms. Huang, and a motor vehicle, which was being driven by Ms. Mai.

[3] Ms. Mai and Mr. Chen, who was the owner of the vehicle, bring a summary judgment motion to dismiss the action on the ground that it is statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act"). The defendants submit that that there is no genuine issue requiring a trial and that Ms. Huang's action is untimely because her lawyer, who admitted to having intended to issue a statement of claim within two years of the accident, negligently failed to do so.

[4] Ms. Huang resists the summary judgment motion and brings a cross-motion to amend her statement of claim as follows:

[5] Ms. Huang submits that regardless of what her lawyer intended, her claim was not discovered until after she had commenced the action and her lawyer obtained medical reports that revealed that her injuries were serious enough to satisfy the statutory threshold for a claim under the Insurance Act.

[6] For the reasons that follow, I dismiss the defendants' summary judgment motion and I grant Ms. Huang's motion to amend her statement of claim.

[7] Ms. Huang was injured on October 15, 2007, when her bicycle was struck by Mr. Chen's motor vehicle. At the time of the accident, Ms. Huang was riding her bicycle on McCowan Road, near its intersection with Huntingwood Drive, in the City of Toronto. [page120]

[8] Pursuant to s. 4 of the Act, but subject to the principle of discovery set out in s. 5 of the Act, Ms. Huang had until October 15, 2009 to commence an action.

[9] Section 4 of the Act provides the basic limitation period of two years from the day the claim was discovered for all claims unless otherwise provided in the Act.

[10] Section 5 of the Act defines discoverability for the purposes of the Act as follows:

[11] Ms. Huang quit her job two days after the accident and has yet to return to full-time employment. After the accident, she complained of injuries to her left arm and right knee, as well as dizziness, headaches, nausea, jaw problems, sleep disturbance and suicidal thoughts. She also complained of serious back pain.

[12] As will be seen, however, the early medical evidence did not necessarily support the existence of a serious medical problem and Ms. Huang did not seek legal advice for some many months after the accident.

[13] About 21 months after the accident, on June 17, 2009, Ms. Huang advised her Ontario Works caseworker that she might seek compensation for the injuries she had suffered in the accident.

[14] The next month, on July 9, 2009, Ms. Huang retained a lawyer, Andrew M. Lee, and on July 16, 2009, Mr. Lee sent the defendant Ms. Mai a letter giving notice of the plaintiff's claim for damages. He also put the defendants' insurer, State Farm Insurance Company, on notice of the claim. [page121]

[15] Although retained to commence an action for Ms. Huang, in July 2009, Mr. Lee had not formed any opinion as to whether Ms. Huang had sustained injuries that met the requirements of s. 267.5(5) of the Insurance Act and ss. 4.1, 4.2 and 4.3 of Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96.

[16] Subsection 267.5(5) of the Insurance Act provided:

[17] After taking on the file, Mr. Lee obtained a variety of reports of medical and other examinations that had occurred during 2008 before his retainer. These reports included (a) employment evaluation and physical demands analysis dated January 3, 2008; (b) report of Dr. Jason W. G. Kwok dated January 14, 2008; (c) functional abilities evaluation report dated March 26, 2008; (d) independent orthopaedic assessment of Dr. C. B. Paitich dated March 26, 2008; (e) independent orthopaedic assessment addendum -- response to rebuttal report dated June 6, 2008; (f) the independent neurological assessment report dated August 5, 2008; (g) medical report dated September 9, 2008 of Dr. P. Ansari; and (h) psychiatric assessment report dated July 29, 2009.

[18] Dr. Paitich's orthopaedic assessment report indicated that Ms. Huang had sustained a cervicothoracic spine strain as a direct result of her motor vehicle accident as well as a contusion over her right knee. However, it was Dr. Paitich's opinion that there was not an accident related impairment of sufficient magnitude to disable her from her pre-accident housekeeping tasks, home maintenance tasks, activities of normal life or her occupation.

[19] The independent neurological assessment report dated August 5, 2008 concluded that "from the paper review it does not appear the claimant suffered any neurological sequellae as far as the motor vehicle accident is concerned and hence the OCF-22 for a neurological assessment is deemed neither reasonable nor necessary". [page122]

[20] On December 18, 2009, Ms. Huang's statement of claim was issued. Mr. Lee had intended to issue the statement of claim within two years of the motor vehicle accident, but he failed to properly diarize the two-year anniversary of the accident. The statement of claim was 63 days late.

[21] However, at the time the statement of claim was issued, Mr. Lee still had not formed an opinion as to whether the plaintiff's injuries met the requirements of s. 267.5(5) of the Insurance Act.

[22] On January 27, 2010, the defendants delivered a jury notice and statement of defence that denies that Ms. Huang sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function.

[23] In 2011, Mr. Lee obtained a report from Dr. Michael West of August 30, 2011. This report states, in part, as follows:

[24] It was Mr. Lee's opinion that there was not sufficient medical evidence to persuade a judge that Ms. Huang had sustained an injury that met the requirements of s. 267.5(5) of the Insurance Act until the report of Dr. West was received in 2011.

[25] In 2011, Mr. Lee also obtained a report of Dr. Jerry J.I. Cooper dated September 9, 2011, which is consistent with Dr. West's opinion. This report states, in part, as follows:

[26] As I shall explain below, there is a genuine issue requiring a trial about when Ms. Huang discovered that the extent of her personal injury justified commencing an action against the defendants. I come to this conclusion applying the approach directed by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] S.C.J. No. 8, 2014 SCC 8.

[27] In these circumstances, it is not necessary, if it ever was, for Ms. Huang to plead that her action is not statute-barred. That issue would have been pleaded by her simply joining issue with the statement of defence. That said, there is no reason to refuse Ms. Huang's request to amend the statement of claim and, therefore, I grant her cross-motion without costs.

[28] Turning to my explanation for dismissing Ms. Mai's and Mr. Chen's summary judgment motion, I begin with the test to be applied.

[29] In Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers enacted when Rule 20 was amended in 2010.

[30] I take the Supreme Court as directing the court on a summary judgment motion to use the approach that existed before Rule 20 was amended and to determine first whether there is a genuine issue requiring a trial about when Ms. Huang discovered or ought to have discovered that she had a claim against the defendants that might satisfy the Insurance Act threshold.

[31] This analysis should be done without using the enhanced fact-finding powers available under rule 20.04(2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure, under rule 20.04(2)(a).

[32] In the case at bar, for the reasons set out below, based on the evidence presented and without the use of the powers provided by rule 20.04(2.1) and (2.2), I am satisfied that there is a [page124] genuine issue requiring a trial about whether Ms. Huang's action is statute-barred.

[33] Applying the approach mandated by Hryniak v. Mauldin, if, however, there appears to be a genuine issue requiring a trial, then second the court should determine if the need for a trial can be avoided by using the new powers under rule 20.04(2.1) and (2.2). As a matter of discretion, the motion judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[34] In the case at bar, for the reasons set out below, applying the powers of rule 20.04(2.1) and (2.2) does not change my analysis and I am, therefore, satisfied that there is a genuine issue requiring a trial about whether Ms. Huang's action is statute-barred.

[35] I begin my explanation of these conclusions by noting that the case law that established the discovery principle and the Limitations Act, 2002, which codifies the principle, starts a limitation period running from the date the plaintiff knew or ought to have known that a cause of action existed through the exercise of reasonable diligence: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31.

[36] Given the statutory presumption that a limitation period begins to run from the date of the accident, the onus is on the plaintiff to persuade the court that the seriousness of his or her injury was not discoverable within the applicable limitation period and the plaintiff must also persuade the court that he or she acted with due diligence to discover if there was a cause of action: Yelda v. Vu, [2013] O.J. No. 3683, 2013 ONSC 4973 (S.C.J.), at paras. 29-30.

[37] In Everding v. Skrijel (2010), 100 O.R. (3d) 641, [2010] O.J. No. 2534, 2010 ONCA 437, approving Voisin v. Hartin, [2000] O.J. No. 5009, [2000] O.T.C. 931 (S.C.J.), the Court of Appeal held that in applying the discoverability principle of the Limitations Act, 2002, the court should consider the threshold requirements of the Insurance Act, and the court held that a plaintiff will not have discovered his or her claim before the plaintiff knows that he or she has a substantial chance to succeed in recovering a judgment for damages. A person cannot be expected to commence an action before he or she knows that the necessary elements as set out in the legislation can be established on the evidence: Hoffman v. Jekel, [2011] O.J. No. 879, 2011 ONSC 1324 (S.C.J.), at para. 9. [page125]

[38] Under the case law, for the limitation period to begin to run, the plaintiff must have knowledge that his or her damages could be considered permanent and serious. I emphasize that the plaintiff must have knowledge because the limitation period does not begin simply because the plaintiff believes or ought to believe that he or she has a claim. Rather, the limitation period begins when the plaintiff first knew -- which I take to be when he or she had an objective appreciation -- that a proceeding would be an appropriate means to seek a remedy.

[39] That there is a distinction between what a plaintiff believes and what he or she objectively knows was a point made by Justice Langton in Ionnidis v. Hawkings  (1998), 1998 CanLII 14822 (ON SC), 39 O.R. (3d) 427, [1998] O.J. No. 1421 (Gen. Div.), at pp. 433-34 O.R., where he stated:

[40] Ionnidis v. Hawkings, supra, was applied in Fuller v. McCartney (2003), 2003 CanLII 3273 (ON SC), 63 O.R. (3d) 393, [2003] O.J. No. 545 (S.C.J.); Simonelli v. Halifax Insurance Co., [2002] O.J. No. 1354, 38 C.C.L.I. (3d) 154 (S.C.J.); Hoffman v. Jekel, supra; Phung v. Mais, [2012] O.J. No. 5990, 2012 ONSC 7153 (S.C.J.); and Chan v. Abdo, [2013] O.J. No. 2447, 2013 ONSC 3017 (S.C.J.).

[41] In the case at bar, Ms. Huang obviously believed that she had a claim that ought to be pursued when she retained a lawyer in the summer of 2009, but her lawyer's professional opinion was that there was not sufficient medical evidence to have a reasonable chance of persuading a judge that the plaintiff had sustained an injury that met the requirements of s. 267.5(5) of the Insurance Act. Sufficient evidence was not obtained until the report of Dr. West dated August 30, 2011 was received. [page126]

[42] If Mr. Lee's view is correct, which is a genuine issue requiring a trial, then Ms. Huang's action commenced in 2009 was not late but rather premature until perhaps as long as 2011.

[43] In Phung v. Mais, supra, Justice Morgan dismissed a summary judgment motion because there was a genuine issue requiring a trial about whether the plaintiff's claim was statute-barred, and he noted the problem of prematurity posed by the discoverability rule where there is no cause of action until the threshold conditions could be satisfied. He stated, at para. 14:

[44] It is worth noting that in the case at bar, the onus on Ms. Huang is to show that her action was not statute-barred at the time it was commenced, which was 63 days past the statutory presumption for the completion of the running of the limitation period. After she commenced her action in December 2009, her state of belief or knowledge is irrelevant.

[45] In my opinion, there is a genuine issue for trial about when, between the date of the accident and the date she commenced her action, the limitation period began to run.

[46] The case at bar is similar to Chan v. Abdo, supra. In that case, Ms. Chan was involved in a car accident on October 19, 2005 and, over the next 24 months, she had communication with four lawyers and with the defendant's insurer. Ms. Chan commenced her action on October 26, 2007. Pleadings were completed. The defendant pleaded that Ms. Chan's claim was statute-barred. The action proceeded to examinations for discovery, and just before the trial was to be scheduled, the defendant brought a summary judgment motion. On the summary judgment motion, Ms. Chan's lawyer deposed that it was through inadvertence that the action had been commenced seven days after the two-year anniversary of the accident. On her examination for discovery, Ms. Chan had testified that she felt that she had suffered serious injuries on the day of the accident. The evidence on the summary judgment motion established that Ms. Chan knew about the pending limitation period before its potential end date of October 19, 2007. [page127]

[47] In Chan v. Abdo, Justice Rady dismissed the motion for summary judgment, and she concluded that there was a genuine issue for trial on the issue of discoverability. Justice Rady noted that the solicitor's admitted inadvertence was not determinative of the outcome. She stated, at paras. 36-37:

[48] In Fuller v. McCartney, supra, Justice Epstein held that the fact that the plaintiff instructed counsel to commence an action before the two-year anniversary of the accident did not preclude the operation of the discoverability rule to show that the limitation period had not begun to run.

[49] For the above reasons, I dismiss Ms. Mai's and Mr. Chen's motion and I grant Ms. Huang's motion.

[50] In Hryniak v. Mauldin, supra, at paras. 78-79, the Supreme Court held that when a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, he or she should remain seized of the matter as the trial judge. This direction was made under the heading "Salvaging a Failed Summary Judgment Motion" and in the context of a discussion of how a failed summary judgment motion adds costs and delay. In that context, Justice Karakatsanis observed the added costs and delay could be attenuated by a judge making use of the trial management powers provided in rule 20.05 and the court's inherent jurisdiction.

[51] There is an argument that Justice Karakatsanis' direction was obiter dicta, but I will treat it as binding on lower courts.

[52] In the case at bar, however, like some summary judgment motions, there are no economies to be achieved and nothing to carry forward in having me remain seized of the matter. I have made no findings about the medical or other evidence presented on the motion beyond saying that there is a genuine issue for trial about whether the action is statute-barred. There are obviously [page128] genuine issues for trial about whether the statutory threshold has been satisfied and, if so, the extent of Ms. Huang's injuries.

[53] Put shortly, the parties would be better served by having this action now proceed in the normal course without case management, which does not appear to be necessary. I, therefore, decline to exercise my discretion to remain seized of the matter.

[54] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Huang's submissions within 20 days of the release of these reasons for decision followed by Ms. Mai's and Mr. Chen's submissions within a further 20 days.