Nov 9, 2020

COURT OF APPEAL SUMMARIES (November 2 – November 6, 2020)

Baig v. Mississauga, 2020 ONCA 697 (CanLII)

[Roberts, Trotter and Thornburn JJ.A.]

COUNSEL:

M. H. B., acting in person

R. Ryan, for the respondent

Keywords: Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Capacity, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., ss. 4, 7, Rules of Civil Procedure, Rule 15.01(1), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 15, Liu v. Wong, 2016 ONCA 366, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447

FACTS:

In May 2013, the appellant fell off his bicycle and had a broken finger and superficial facial abrasions as a result. He submitted a Claim Report to the respondent seeking compensation and recommended remediation of the hazard that led to his fall. On the form that he completed, he was warned about the limitation period. The appellant later refused to cooperate with the adjuster assigned to investigate the claim. The appellant was then warned in a letter on May 5, 2014, that his file would be closed if he did not respond and was advised of the limitation period. There was no further communication and the file was closed in June of 2014.

In September 2017, he issued a claim against the respondent, seeking damages. The respondent moved for summary judgement, alleging that the two-year limitation period had expired. The appellant advanced two arguments on the summary judgement motion: (1) he did not discover the extent of his injuries until years after the accident; and (2) he lacked the capacity to commence litigation within the limitation period due to a disability. The motion judge rejected the appellant’s arguments and determined that there was no genuine issue for trial. The motion was granted to dismiss the appellant’s action, and the appellant appealed.

ISSUES:

1. Did the motion judge err in finding that the subsequent discovery of the severity of the injuries did not extend the limitation period?

2. Did the motion judge err in finding that the appellant had capacity?

3. Was the motion judge biased?

4. Was there a breach of Rule 15.01(1)?

5. Were the appellant’s rights breached under s. 15 of the Charter and the Ontario Human Rights Code?

6. Should the appellant’s request to anonymize the proceedings be granted?

HOLDING:

Appeal dismissed.

REASONING:

1. Did the motion judge err in finding that the subsequent discovery of the severity of the appellant’s injuries did not extend the limitation period?

No. The Court found that the motion judge made no error. The Court emphasized that knowledge of the extent of the damages is not necessary to trigger the commencement of the litigation period. That the appellant’s injuries appeared to have worsened did not extend the limitation period. The Court dismissed this ground of appeal.

2. Did the motion judge err in finding that the appellant had capacity?

No. The appellant claimed that he lacked the capacity to commence an action because he was “under a disability.” The motion judge accepted that, while the appellant had proffered evidence of a mental illness, there was no evidence that it rose to the level of incapacity for the purposes of s. 7 of the Limitations Act. The Court found that the motion judge correctly applied s. 7, as she stated that a plaintiff is presumed to have been capable of commencing a proceeding, unless the contrary is proved on a balance of probabilities. The motion judge found that it was not proved in this case and the Court dismissed this ground of appeal.

3. Was the motion judge biased?

No. The appellant submitted that the motion judge was not interested in hearing him and addressed him in a rude manner. According to the appellant, after reading the report from one of his doctors, the motion judge looked at him and, in a harsh tone, said, “you’re fine.” The Court found that there was no merit to the submission that the motion judge was biased. The Court stated that he should have ordered the transcript and not simply relied on his own assessment of what happened. The Court also held that even if the appellant’s description of what happened could be taken at face value, it did not establish bias. The Court dismissed this ground of appeal.

4. Was there a breach of Rule 15.01(1)?

No. The appellant contended that, being a person under disability, he was entitled to be represented by counsel. The Court noted that the motion judge found that the appellant was able to represent himself in court. Moreover, the issue was not raised with the motion judge, or any of the other judges before whom the motion was spoken to in the eight-month period between the service of the summary judgment motion and the day of the hearing. The Court rejected this ground of appeal.

5. Were the appellant’s rights breached under s. 15 of the Charter and the Ontario Human Rights Code?

No. The Court found that the appellant had failed to establish any factual basis for his submission that his rights were infringed as a result of discrimination based on disability. The Court refused to give effect to this ground of appeal.

6. Should the appellant’s request to anonymize the proceedings be granted?

No. The Court found that there was no legal basis to amend the title of the proceedings in the manner that the appellant requested.


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.