Posted: October 23, 2017
By: Steve Rastin

A 17-day-old infant suffered a traumatic brain injury in a car accident on September 7, 2007, while riding in a car driven by his mother.  In 2014, the infant’s mother issued a Statement of Claim on behalf of her child (the plaintiff), which named the driver and the owner of the vehicle involved in the accident as defendants. Then, in 2015, new lawyers for the minor plaintiff brought a motion to amend the Claim to add the City of Sudbury as a defendant, due to several issues relating to road design which were alleged to have contributed to the accident.

The City challenged the defendant’s motion on the grounds that the Claim was statute-barred, as the two-year limitation period had passed pursuant to The Limitations Act. The City also argued that the Claim was barred because the plaintiff failed to give the requisite notice to the City within ten days of the accident, as required per the Municipal Act. The motions judge rejected the City’s argument and allowed the plaintiff to add the City as a defendant in the Claim. The City appealed this decision, in Azzeh v. Legendre (2017).

The City’s main argument on appeal was that the motion judge erred in finding that the claim was not filed too late and therefore, statute-barred. Under the Limitations Act, a minor is represented with respect to a claim as soon as someone takes steps on the minor’s behalf in relation to the claim and not when the Statement of Claim is issued. Thus, the City argued that the plaintiff was represented well before 2014 when his mother signed a contingency fee agreement with a law firm and also signed the application for Statutory Accident Benefits on his behalf. As a result, the City asserted, the limitation period expired by the time of the motion to add the City as a defendant.

The City further argued that the motion judge failed to apply a discoverability analysis: section 8 of the Limitations Act states that the limitation period against a minor begins to run when the litigation guardian knew or ought to have known sufficient facts on which to base allegations against a potential defendant. Finally, the City argued that, under the Municipal Act, the ten-day notice period began when the Statement of Claim was issued and not, as the Plaintiff claimed when a new firm was hired and the plaintiff’s litigation guardian was no longer his mother. According to the City, there was no reasonable excuse for the delay.

Plaintiff’s counsel argued that a minor is not represented in relation to a claim until the representative swears by an affidavit, consenting to act as litigation guardian.  The Rules of Civil Procedure states that when someone brings a claim on behalf of a plaintiff with a disability, including minors, the individual must file an affidavit stating that he or she has no interest in the proceeding adverse to the plaintiff’s and also, that they acknowledge that they have been informed that they are liable for any costs that may be awarded against the plaintiff.  However, in this case, the plaintiff’s mother never completed the sworn affidavit, which meant she was never the plaintiff’s litigation guardian. Accordingly, the plaintiff was not legally represented by a litigation guardian until 2015 when his grandmother, who completed the sworn affidavit, was appointed as his litigation guardian. Therefore, it was argued, neither the limitation period nor the notice period began to run until that time. Regarding the plaintiff’s failure to provide notice to the City within the ten-day notice period, plaintiff’s counsel asserted that the plaintiff had a reasonable excuse (i.e. that he was a minor).

There were three key issues to be decided in the appeal:

  1. Did the motion judge err in finding that the two-year limitation period under the Limitations Act, did not bar the claim against the City?

  2. Was the motion judge in error in finding that notice had been given to the City within the ten-day period set out in s.44 of the Municipal Act?

  3. Did the motion judge err in concluding that there was no prejudice to the City?

On the first issue, Justice Weiler rejected the City’s argument that a minor is represented in a claim as soon as someone takes steps on their behalf, since the Limitations Act requires that a minor is represented by a litigation guardian in relation to a claim.  Justice Weiler agreed with the motion judge’s ruling that prior to June 2014, the plaintiff did not have a litigation guardian and as such, the limitation period began to run only after this date, when the claim was issued.

On the matter of the plaintiff’s application for Statutory Accident Benefits, the judge noted that the plaintiff’s mother simply signed the form as ‘guardian’, not as his litigation guardian. This could easily have signified that she was signing as the plaintiff’s substitute decision maker or guardian under the Substitute Decisions Act, or was simply using the word ‘guardian’ in reference to her role as the plaintiff’s mother. In short, the plaintiff’s mother’s signature as guardian on the application did not automatically equate to being his litigation guardian.

Justice Weiler did, however, reject the plaintiff’s claim that he was not represented by a litigation guardian in relation to the June 2014 Statement of Claim. On that issue, the judge ruled that the plaintiff’s mother clearly represented herself as the plaintiff’s litigation guardian to the defendants. Although the plaintiff’s mother did not file the affidavit as required, the judge noted that this made the proceeding an irregularity but did not nullify it. Justice Weiler further stated that it would not make sense for the limitation period to be stalled simply because a litigation guardian did not file the required affidavit, as this would cause a limitation period to go on for an unlimited period since a litigation guardian could indefinitely delay the filing.

Justice Weiler also rejected the plaintiff’s argument that his mother only represented herself as his litigation guardian to the initial defendants (the vehicle driver and owner) and not to the City and thus, time did not begin to run with respect to the Claim against the City. Justice Weiler noted that the Statement of Claim is a public document and that Section 6 of the Limitations Act does not refer to representation in relation to specific defendants but rather, to representation in relation to the Claim. Therefore, the countdown for the limitation period commenced on June 11, 2014, when the Statement of Claim was submitted, and ended two years later, on June 11, 2016. Since the plaintiff filed the motion to add parties to his claim, including the City, on September 15, 2015, Justice Weiler ruled that the motion judge was correct in deciding that the motion against the City was not statute-barred for being past the limitation period.

On the second issue, regarding whether or not the motion judge erred in her application of the Municipal Act, Justice Weiler agreed that the ten-day period did not begin to run until the plaintiff had a litigation guardian or a reasonable excuse for not bringing the action until he had a litigation guardian. However, as with the limitations period issue, the judge disagreed with the motion judge’s ruling that the ten-day period did not begin to run based on the fact that the plaintiff’s mother failed to file the affidavit as required.

The motion judge had ruled, if the plaintiff’s mother as litigation guardian was required to give notice to the City, she had a reasonable excuheldse for not doing so because the plaintiff was a minor and the policy of the law is to protect minors.  On this question, Justice Weiler asserted that the words “reasonable excuse” should be given their plain and ordinary meaning and the court should consider all circumstances, which include: whether the plaintiff was capable of forming the intention to sue the municipality within the notice period; whether the plaintiff had a representative whose responsibility it was to retain a lawyer and pursue all claims; and the length of the delay before the notice was given and any explanation for the delay. Justice Weiler stressed that lack of awareness of the notice requirement was, by itself, not sufficient to qualify as a reasonable excuse.

Regarding the noted circumstances, the judge stressed that the plaintiff had representation in the form of his mother and that she was capable of forming the intention to sue the municipality within the notice period and did, in fact, retain a lawyer who was capable of pursuing claims on the plaintiff’s and her behalf.  Justice Weiler added that there was nothing on record to suggest that by the time the plaintiff’s mother acted as litigation guardian on his behalf, the extent of his injuries was unknown. Further, the only explanation provided for why the City was not named in the lawsuit and not given notice earlier is that it “never came up”. In all circumstances, Justice Weiler found that the notice given to the City was past the deadline and there was no reasonable excuse for the delay. Accordingly, Justice Weiler ruled that the motion judge did err in finding that the plaintiff’s right to bring an action against the City needed further protection and that this served as a reasonable excuse for not giving timely notice to the City.

Although she agreed that the 10-day notice period did not begin to run until the plaintiff had a Litigation Guardian, Justice Weiler held that the lack of reasonable explanation for the additional delay in notifying the City bars the Claim under the Municipal Act.  For this reason, Justice Weiler set aside the motion judge’s decision, allowed the City’s appeal and ordered the claim against the City dismissed. 

Given her ruling on the notice issue, Justice Weiler noted that it was not necessary to address the issue of prejudice to the City; however, the judge stated that it was nevertheless necessary to comment on this matter. In response to the City’s submission that its maintenance records had been destroyed over time, the motion judge had ruled that there was no prejudice to the City, since the plaintiff’s claim concerned road design issues, not maintenance and inspection. Justice Weiler disagreed with this finding . Referencing the Supreme Court ruling in The Queen v. Jennings et al., in which the Court concluded that a municipality’s duty of repair includes erecting and maintaining proper signs, Justice Weiler noted that the plaintiff’s claim against the City included, among other things, failure or neglect to have adequate signs and lighting at the intersection. Therefore, Justice Weiler disagreed with the motion judge’s ruling that the plaintiff’s claim against the City was not a repair and maintenance issue.

Justice Roberts provided a dissenting opinion in the Court of Appeal decision. She agreed with Justice Weiler that the motion judge’s order should be set aside, but for different reasons, and found that the City’s appeal should be dismissed. Justice Roberts argued that in the original motion, the plaintiff was merely seeking an interlocutory order to amend his pleadings rather than a declaration. She noted that the motion was a pleadings motion under the Rules of Civil Procedure and not a motion to determine an issue of law before trial, nor was it a summary judgment motion. In other words, Justice Roberts found that the plaintiff was merely looking for an order to add the City as a defendant and not for a ruling on whether the City ought to be a defendant at all, based on the limitation period under the Limitations Act and the notice period under the Municipal Act.

Justice Roberts stated that the plaintiff met the low onus placed on him in a motion to amend a pleading and therefore, the motion judge did not err by allowing the City to be added as a defendant. The limitation and notice period issues should have been left in a motion for that specific purpose or at trial. Justice Roberts asserted that this was particularly important regarding the notice period due to the limited jurisprudence on what constitutes a “reasonable excuse”. The judge noted that there were a number of issues of fact and credibility relevant to the questions of reasonable excuse and prejudice that needed to be determined - the determination of the latter is more fact specific and less clearly defined as the provisions under the Limitations Act.  As such, Justice Roberts stated that the City’s appeal should be allowed to the extent of granting leave, so that they could plead the limitation and notice period defenses.

Personal injury actions resulting from car accidents or other serious incidents resulting in injury, can be extremely complicated, particularly when the accident involves an injured child who is unable to act on their own behalf. In such circumstances, it’s essential to obtain representation from a highly experienced car accident lawyer who has the requisite knowledge and will act in the best interests of the accident victims.

Our team of personal injury lawyers at Rastin & Associates have a long and successful track record of helping injured persons and their families get the compensation they are owed and deserve after being seriously hurt in a motor vehicle accident.  Call Rastin & Associates today if you were injured and are claiming damages, and find out how we can favourably resolve your case.

You can call us at  844-RASTIN1 or  email Rastinlaw.com
 

 



 
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Posted under Brain Injury, Car Accidents, Personal Injury