[Addendum: Since this decision was released and our commentary posted, Mr. Justice Paul Perell has released reasons in Ng v. Beline that deal directly with the issue discussed in this post. It appears that neither the Court of Appeal nor Justice Perell were aware of each other’s decision. Justice Perell decided the very issue that the Court of Appeal chose not to in Grewal. See our commentary above.]
[Second addendum: After the release of Justice Perell’s decision in Ng, Stephen Ross, who was defence counsel in Grewal, has provided an extensive comment about both cases. It appears at the of this post.]
In Grewal v. Ivany, released last week, the Court of Appeal left open the possibility that a claim for pecuniary damages in an MVA action might be prescribed at the end of two years, even though the discoverability principle has postponed the commencement of the same limitation period for a non-pecuniary damages claim.
The Court did not decide the issue though, because the appeal before it related to a motion for summary judgment. It held that the issues on the motion had to be decided on a “full record”.
The motions judge (E. MacDonald J.) had dismissed the plaintiffs’ action (arising out of an accident that occurred under the Bill 59 regime of the Insurance Act) on the basis that the threshold nature of the injuries had been known more than two years before the action was commenced. The Court of Appeal said that the judge had been wrong (on the facts of this case) to make such a ruling on a motion and ruled that there was a genuine issue for trial.
The defendant made a separate argument, that the claim for pecuniary damages was prescribed. (Of course, there is no threshold requirement for pecuniary damages claims, and therefore, nothing to which the discoverability principle would ordinarily apply.) Counsel for the defendant relied upon a 2004 decision of the Court of Appeal in Chenderovitch v. Doe, but the Court distinguished that case, noting that the plaintiff there had abandoned a claim for pecuniary damages, “[t]hus, it was unnecessary for this court to determine whether her pecuniary damages claim was foreclosed by the expiry of a limitation period”.
But the Court then went on to say, “[w]e conclude that the issue whether Gurcharn’s pecuniary damages claim is statute-barred is best resolved on a full record. This will ensure that any consideration of this important issue by this court will be informed by a reasoned analysis in the courts below.” [Emphasis added]
It strikes us as odd that the Court of Appeal could not or would not decide this issue, which seems to be entirely a legal one. Surely the question is whether, as a matter of law, the expiry of the limitation period for claims that are not subject to the discoverability principle is superseded by the postponement of the limitation period that can occur in relation to claims for non-pecuniary damages.
There have been several Superior Court decisions that have considered whether or not a claim for pecuniary damages can be statute-barred independently of a claim for non-pecuniary damages: Burke-Smith v. Sun, Fuller v. McCartney and Richmond v. Hope. Although there has not been, to our knowledge, a definitive pronouncement, the Superior Court judges have consistently refused to find that pecuniary damages claims were prescribed when there was doubt as to whether the claims for non-pecuniary damages had been saved by the discoverability principle. For some reason, none of these decisions was referred to in the reasons of either the Court of Appeal or Madam Justice MacDonald in Grewal.
Now, all bets may be off while we wait for a “full record” on this issue to make its way back to an appellate court.