{"id":468,"date":"2016-08-02T09:25:41","date_gmt":"2016-08-02T13:25:41","guid":{"rendered":"http:\/\/limitations.ca\/?p=468"},"modified":"2016-08-02T09:25:41","modified_gmt":"2016-08-02T13:25:41","slug":"ontario-mva-litigation-lawyers-letters-and-the-threshold","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=468","title":{"rendered":"Ontario: MVA litigation, lawyer’s letters, and the threshold"},"content":{"rendered":"

A lawyer’s letter stating that her plaintiff client has sustained permanent injuries is not, in the context of motor vehicle accident litigation, determinative of whether the plaintiff has discovered her claim within the meaning of the Limitations Act<\/a>.<\/p>\n

The plaintiff in Schaefer v. Ayeneaba<\/a>ba <\/em>suffered injuries in a motor vehicle accident.\u00a0 The defendant moved for summary judgment dismissing the action as statute-barred by an expired\u00a0limitation period.<\/p>\n

The limitation period for a claim of permanent injury and impairment under section 276.5(5)<\/a> of the Insurance Act <\/em><\/a>doesn’t run until there’s a sufficient body evidence:<\/p>\n

[4]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 Both sides agree, as do I, that the limitations issue that is before me can be summarily adjudicated. Both sides also agree with the proposition set out in Ioannidis<\/em>[2]<\/a> – that in claims of permanent injury and impairment under s. 267.5(5)<\/a> of the Insurance Act<\/a><\/em>,[3]<\/a> the court should grant \u201ca degree of latitude to the plaintiff before declaring that the limitation period has begun to run.\u201d A limitation period should not begin to run with regard to a serious and permanent impairment claim:<\/p>\n

\u2026 until there is a sufficient body of evidence\u00a0 available to be placed before a judge that, in counsel\u2019s opinion, has a reasonable chance of persuading a judge on a balance of probabilities that the injury qualifies [as a serious permanent impairment].When such a body of material has been accumulated then and only then should the limitation begin to run.[4]<\/a><\/p><\/blockquote>\n

The defendant took the position that the plaintiff’s lawyer, by words and actions, “made clear to the insurer that the plaintiff’s injuries were permanent and that the limitation period would expire two years after the accident”.\u00a0 The defendant relied on a letter from the lawyer to the insurer:<\/p>\n

[<\/a>11]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The defendant, however, points to a letter dated May 24, 2011 from the plaintiff\u2019s lawyer to the insurer. The lawyer advises the insurer that as a result of the accident, the plaintiff suffered injuries to her neck, shoulders, back and hips and that the physical and psychological symptoms from these injuries (such as dizziness, headaches and acute depression) \u201care continuing up to the present.\u201d The lawyer also notes that the limitation date is \u201cfast approaching\u201d and attaches a draft statement of claim. The draft statement of claim specifically pleads \u201cpermanent and serious impairments.\u201d The lawyer then tries to file the claim by mail but the mailed-in claim is rejected by the court. The action is properly commenced on December 2, 2011.<\/p><\/blockquote>\n

The defendant argued that the letter was essentially an acknowledgement that the plaintiff’s injuries were permanent on the date of the accident.<\/p>\n

Justice Belobaba correctly rejected this argument:<\/p>\n

\n

[<\/a>12]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The defendant says that by these words and actions the plaintiff\u2019s lawyer in essence acknowledged that his client\u2019s injuries were indeed permanent and that he only had until June 24, 2011 (two years after the accident) to commence the action.<\/p>\n

[<\/a>13]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 I do not agree. The fact that the plaintiff\u2019s injuries were described as \u201ccontinuing\u201d is not, in and of itself, an acknowledgement of permanency. Nor is the fact that the lawyer attaches a draft statement of claim that pleads \u201cpermanent and serious impairments.\u201d This claim is made in almost every motor vehicle accident that results in significant injury. And, in any event, pleadings are not evidence.<\/p>\n

[<\/a>14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0The fact that the lawyer noted in his letter that the two-year limitation period is \u201cfast approaching\u201d says as much about his desire to file the claim within the presumptive two-year period just to be on the safe side, as it does about an admission that his client knew she sustained permanent<\/i> soft-tissue injuries at the date of the accident<\/i> \u2013 which is generally an impossibility and is here rebutted by the medical documentation that the lawyer reviewed.<\/p>\n

[<\/a>15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 In his affidavit, the lawyer lists the various clinical and psychological reports that he had reviewed (none of which describe the impairments as permanent) and explains that when he sent the May 24, 2011 letter to the insurer, he \u201cdid not have the necessary medical reports and records to prove [that the impairments were permanent].\u201d It was only after requesting a medical opinion from Dr. Sequeira on October 20, 2011 and receiving the doctor\u2019s report a month later that he \u201cformed the opinion that the plaintiff had sustained an injury that met the requirements of s. 267.5(5)<\/a> of the Insurance Act<\/a>.<\/i>\u201d The lawyer commenced the action less than a month later on December 2, 2011.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

A lawyer’s letter stating that her plaintiff client has sustained permanent injuries is not, in the context of motor vehicle accident litigation, determinative of whether the plaintiff has discovered her claim within the meaning of the Limitations Act. The plaintiff in Schaefer v. Ayeneababa suffered injuries in a motor vehicle accident.\u00a0 The defendant moved for … Continue reading Ontario: MVA litigation, lawyer’s letters, and the threshold<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[9,254,92,237,253],"class_list":["post-468","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-discovery","tag-loose-lips","tag-motor-vehical-accident","tag-ontario-insurance-act-s-267-5","tag-personal-injury"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/468","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=468"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/468\/revisions"}],"predecessor-version":[{"id":469,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/468\/revisions\/469"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=468"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=468"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=468"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}