Court of Appeal Affirms Dismissal of Slip and Fall Action as Being Out of Time; Discoverability Did Not Extend the Limitation Period

Published on: November 2020 | What's Trending

Legal gravel and an hourglass

In 2013 Mr. Baig fell off his bike and injured himself. Four years later, he sued the City of Mississauga (hereinafter “the City”). The City successfully moved for summary judgment, citing the limitation period. In addition, the motion judge stated there was no genuine issue for trial. Mr. Baig appealed and the decision of the Court of Appeal was released this month.

Mr. Baig placed the City on notice within the requisite 10 days after the accident, pursuant to Municipal statute and in his letter, cited the 2 year limitation period. Mr. Baig refused to co-operate with any investigation and the City closed its file.

At the summary judgment motion, Mr. Baig argued discoverability with regard to the extent of his injuries and relied on the argument that he had a disability and compromised mental state, which led to the delay in issuing the Statement of Claim. Reference was made to Liu v. Wong, a 2016 Court of Appeal decision which states, “the law is quite well established that it is knowledge of the material facts necessary to support the cause of action that triggers the commencement of the litigation period. Knowledge of the extent of the damages is not necessary.”

On the capacity argument, the Court of Appeal referenced Carmichael v. GlaxoSmithKline Inc., a 2020 Court of Appeal decision which referenced section 7(2) of the Limitations Act, which states, a plaintiff is presumed to have been capable of commencing a proceeding, unless the contrary is proved on a balance of probabilities.

The remainder of Mr. Baig’s appeal was regarding bias, that he was a person under disability and entitled to be represented by counsel and to his Charter rights, all of which were dismissed.

Many times, we see the Court try to accommodate self-represented parties, by providing more latitude. In this instance, the Court found, based on the evidence before it, that Mr. Baig knew the limitation period, but had chosen not to act in a timely manner, with no proper rationale given.

I recently read that in the Family Courts and in immigration proceedings, more people are self represented. I believe this trend will work its way into the Superior Court, and this will become more commonplace. The Court will often extend the limitation period, based on discoverability, but as articulated in Liu, the full extent of damages is not required to commence an action.