International Law

: Cavanagh Williams

Limitation Period for MVA Pecuniary Claims Follows That of Non-pecuniary Claims Says Superior Court

Hard on the heels of the Court of Appeal’s decision in Grewal v. Ivany, released last Friday, Mr. Justice Paul Perell has delivered reasons in Ng v. Beline that address one of the issues considered in Grewal: in personal injury claims arising out of motor vehicle accidents, are claims for pecuniary damages prescribed if not brought within two years?

In Grewal, the Court of Appeal said that “the issue whether [the plaintiff'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.” We posted a commentary about that decision yesterday.

Today,  Justice Perell released his decision in Ng, apparently without being aware of the ruling in Grewal. He also sent his case on to trial. But in doing so, he decided the legal issue that had been left open by the Court of Appeal in Grewal: whether a claim for pecuniary damages can be prescribed, even though a claim for non-pecuniary damages arising out of the same accident is not, by reason of the discoverability principle.

Ng was a claim that arose under the Bill 198 regime of the Insurance Act. The defendant moved for summary judgment, raising the following question:

When a person is injured in an automobile accident and suffers both (a) pecuniary (special) damages, which are not subject to any statutory threshold and also (b) non-pecuniary damages, which are subject to a statutory threshold, is a claim for pecuniary damages statute-barred if the person’s action is commenced more than two years after the discoverability of the claim for pecuniary damages?

[There is a somewhat confusing passage in paragraph 3 of the decision, in which Justice Perell seems to have been labouring under the misapprehension that there is a $30,000 deductible that applies to claims for pecuniary damages. However, that error doesn't affect the balance of the decision.]

Justice Perell referred to an earlier Court of Appeal decision, Chenderovitch v. Doe, which had also been cited in Grewal. In particular, he cited Moldaver J.A.’s conclusion, that in enacting s. 267.5 in the Bill 59 version of the Insurance Act, the legislature had intended to create separate causes of action for pecuniary and non-pecuniary damages claims (para. 23 of Chenderovitch). (Section 267.5 of the Insurance Act deals with the treatment of claims for damages for income loss, health care expenses and non-pecuniary damages. It sets out the “threshold” and deductibles in relation to the latter.)

Justice Perell felt that, applying common law principles, the plaintiff’s claim for pecuniary damages was certainly statute-barred, because the plaintiff had known, within days of the accident, that she had suffered economic loss but she did not sue until about 28 months after her accident.

But His Honour went on to hold that because of the legislative creation of more than one cause of action in motor vehicle cases,  a conventional common-law analysis was inappropriate. Rather, injured plaintiffs should, he said, have the benefit of the most favourable treatment possible:

In my opinion, the spirit and thrust of the Chenderovitch judgment is that with respect to the operation of limitation provisions, a plaintiff with an automobile accident claim should receive the most favourable treatment possible, and this means that the measure of whether he or she has a claim is governed by the discoverability of the claim for non-pecuniary damages, which is the claim that is subject to the threshold test. This approach, in effect, continues the approach from Peixeiro. In practical terms, the pecuniary claims may shelter under the limitation period for the non-pecuniary claims if those claims are not statute-barred.

The result of Justice Perell’s analysis was to transform the limitation period issue. The question became one of discoverability: when had the threshold nature of the plaintiff’s claim for non-pecuniary damages been discoverable? If that date was more than two years prior to the commencement of the action, then the claims for both pecuniary and non-pecuniary damages would be statute-barred. But if the commencement of the limitation period for the non-pecuniary damages claims was postponed by discoverability, to a point less than two years prior to the date of issuance of the claim, then the pecuniary damages claims would be rescued as well. A trial will be required to decide the fact-based discoverability issue.

The legal principle decided by Justice Perell was exactly the one that the Court of Appeal declined to deal with in Grewal, saying that it required a “full record” before doing so. In our commentary, we questioned whether a factual background was really necessary in order for this legal issue to be decided. Justice Perell seems to have held a similar view.

Full post as published by Cavanagh Williams on October 15, 2008 (boomark / email).