Appeal Court rules on Filing Deadlines in a Lawsuit involving Injured Child
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:
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?
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?
Did the motion judge err in concluding that there was no prejudice to the City?
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.
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