It has been said that hard facts are apt to introduce bad law. This may occur when judges are asked to exercise their discretion to provide relief to a party facing severe consequences. An example of this might be a plaintiff who faces a motion for summary judgement dismissing the claim as statute-barred. Such was the fate of Ms. Landrie who sustained injuries in a slip and fall on November 19, 2008. Ms. Landrie retained counsel who commenced an action on November 22, 2010. Unfortunately, she mistakenly provided her counsel with the incorrect date of the incident.
The Action was commenced two years and 3 days after the occurrence. Ms. Landrie had therefore missed the two-year limitation period within section 4 of the Limitations Act, 2002 (“Act”), which expressly provides that no action shall be commenced after the second anniversary of the day on which the claim was discovered. Having realized their mistake, counsel amended their pleadings to include a claim that, while she was in hospital, Ms. Landrie was an “incapable person” pursuant to section 7(1) of the Act. Section 7(1) states that the limitation period does not run when the claiming party “is incapable of commencing a proceeding… because of his or her physical, mental or psychological condition.”
Importantly, the operation of section 7(1) is contingent upon the reverse-onus provision within section 7(2), which requires that, “A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved (emphasis added).” Therefore, Ms. Landrie faced the burden of proving that she was entitled to have the two-year limitation period tolled by three days because she had been in hospital for roughly 15 days immediately following her fall.
Ms. Landrie's claim appeared to be in jeopardy as it was clearly brought out of time. Authorities such as the Ontario Court of Appeal's decision in Deck International Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309 indicate that the parties are expected to provide some form of medical evidence to prove incapability. However, what constitutes “proof” is within the courts' discretion, and Ms. Landrie would ultimately benefit from that discretion.
In his decision, Justice Perell stated that despite the reverse onus on the plaintiff, the burden in section 7 is, in fact, “more liberal and generous” than the repealed section 47 of the Limitation Act. Section 47 required the plaintiff to be a “minor, mental defective, mental incompetent or of unsound mind” in order to toll the limitation period. With this relaxed onus in mind, Justice Perell found that Ms. Landrie had proven that she was incapable of commencing the proceeding on time because of her physical and mental state while in the hospital.
Justice Perell then employed the recent decision in Hryniuk, (2014 SCC 7) to decide in Ms. Landrie's favour, by summary judgement. Importantly, the decision was based primarily on affidavit evidence of Ms. Landrie and neither side presented expert medical evidence. The decision is remarkable for the paucity of objective and corroborative evidence. What is prominently featured in the decision is that Ms. Landrie did require medical attention during the weeks immediately following the incident and her claim was only 3 days out of time. These facts appear to have motivated Justice Perell to exercise his discretion in her favour. Despite being the moving party, the Defence not only lost the motion for summary judgement, but is now unable to address the limitation at trial on the full evidentiary record.
It is possible that Landrie could signal a movement towards a relaxed interpretation of section 7(1)'s requirements. It is also possible that Landrie is part of a larger movement towards the utilization of summary judgement as a gatekeeping adjudicative option. However, it is more likely that the decision in Landrie was specific to its facts and their amenability to a form of “common sense justice”. Regardless, defendants in personal injury cases should be aware of the potential impact of Landrie. Prudent defence counsel should ensure that they bring their best case forward when moving for summary judgement of a statute-barred claim or risk losing the ability to argue the issue at trial.
Landrie v Congregation of the Most Holy Redeemer, 2014 ONSC 4008 [Landrie].
S.O. 2002, c. 24, Schedule B.
R.S.O. 1990, c. P.27.