Singer Kwinter’s Susan Dhaliwal highlights important facts and outcomes in the Ontario Courts.
Case summary originally distributed in OTLA’s April 28, 2019 newsletter.
Siddiqui v. Saint Francis Xavier High School, 2019 ONSC 30
The minor plaintiff, Yasmine Siddiqui, was injured during hockey tryouts for the St. Francis Xavier High School girls’ hockey team on February 25, 2013. At the time of her injury, Yasmine was 12 years-old and a grade 7 student at St. Francis.
Following the incident, Yasmine’s father, Nizam Siddiqui, retained counsel who on April 25, 2013, approximately two months after the incident, wrote a letter putting St. Francis and its insurers on notice of a potential action for damages arising from the incident. The letter identified Nizam as Yasmine’s litigation guardian. The letter reads:
We hereby give you notice of our client’s intention to prosecute a claim for damages, a lawsuit arising out of the negligence that occurred on the date indicated. We have yet to issue the claim.
On June 10, 2013, Yasmine, Nizam and their counsel met with an insurance representative assigned to the claim and provided a statement about the incident and Yasmine’s injuries.
On May 25, 2017, four years and three months after the incident, the Plaintiffs commenced an action seeking damages for, among other things, personal injuries sustained by Yasmine following the incident on February 25, 2013. On the same day, Nizam swore an Affidavit of Litigation Guardian, agreeing to act as Yasmine’s litigation guardian in the court proceeding.
At the close of pleadings, the Defendants brought a motion for summary judgment seeking to dismiss all of the claims set out in the Statement of Claim arguing the claim was commenced outside the applicable two-year limitation period set out in the Limitations Act (“the Act“). In return, the Plaintiffs sought an order granting partial summary judgment dismissing the Defendants’ limitation defence contained in their Statement of Defence on the ground that the action was not prescribed by the Act.
The central issue in this motion was whether the two year limitation period began to run on the date that the notice letter was sent to the Defendants wherein Nazim held himself out as the litigation guardian, or alternatively, from the date the action was commenced and Nizam swore the Affidavit of Litigation Guardian.
The Defendants argued that the text, purpose and context of the Act leads to the conclusion that a limitation period begins from the date that an individual holds themselves out as a litigation guardian for a minor plaintiff. Specifically, the Defendants argued that the term “represented” in s6(b) of the Act includes holding oneself out as a litigation guardian to the defendants in a claim and that it is possible for a litigation guardian to represent a minor with respect to a claim even if the litigation guardian has not signed an affidavit of litigation guardian.
Justice Beaudoin who heard the motion sided with the Plaintiffs. His Honour indicated that the determination of a minor’s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability. His Honour went on to conclude:
I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient. The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.
This conclusion is reinforced by the other provisions of the Act; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the Act.
Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.