Claimant had mostly recovered from first concussion when vehicular accident caused another
The Ontario Court of Appeal has dismissed a woman’s action for damages for her post-concussion syndrome arising from a motor vehicle accident upon determining that she commenced her claim beyond the relevant limitation period.
On Nov. 24, 2015, the vehicle of the appellant in Lloyd v. Baker, 2026 ONCA 434, struck the vehicle in which the respondent was a passenger. At that time, the respondent had largely recovered from a first concussion sustained during an April 2015 workplace accident.
During the vehicular accident, the impact caused the respondent to hit her head and sustain a second concussion. While she was supposed to return to work on Nov. 26, 2015, the subsequent concussion postponed this scheduled return date.
Initially, the respondent believed she would recover from the second concussion and return to her normal life. However, her symptoms mostly persisted.
In a clinical note shortly after the accident, her treating physician diagnosed her with post-concussion syndrome. The physician opined that the second head injury aggravated the first concussion.
Since returning to work in January 2016, the respondent has never resumed her regular full-time duties. Instead, she has worked reduced hours and performed modified duties.
According to a note on Dec. 1, 2016, one of the respondent’s treating physicians counselled her “re: potential prognosis and never reaching 100% or previous baseline.”
In a Mar. 13, 2018, letter to a rehabilitation company, the respondent’s treating physician found it “unlikely” that a treatment could “suddenly ‘cure’ her post-concussion syndrome.”
In the years following the vehicular accident, medical records stated that the respondent consistently reported physical and cognitive issues that impacted her daily. Family doctors and specialists treated these problems without much success.
In a report dated Mar. 12, 2020, a neuropsychologist diagnosed the respondent with a “mild neurocognitive disorder due to a traumatic brain injury.” On July 12, 2020, the respondent met the neuropsychologist to discuss this report.
On Nov. 8, 2021, six years after the motor vehicle accident, the respondent filed her statement of claim against the appellant.
In his defence, the appellant alleged that the action was statute-barred. He moved to summarily dismiss the claim due to its commencement beyond the applicable limitation period under Ontario’s Limitations Act, 2002.
On Feb. 25, 2025, Justice Gary Tranmer of the Ontario Superior Court of Justice dismissed the summary judgment motion. He determined that the respondent initiated her claim within the two-year limitation period.
The motion judge explained that the respondent only knew there was a reasonable chance that her injury would meet the permanent serious impairment threshold under Ontario’s Insurance Act, 1990, when she met the neuropsychologist in July 2020 to discuss his report.
The Court of Appeal for Ontario allowed the appeal and dismissed the respondent’s action upon determining that the motion judge erred in his analysis. The appeal court ruled that the respondent’s claim was discoverable for over two years before its commencement.
The appeal court held that the respondent should have known that her injuries likely met the threshold before meeting the neuropsychologist in July 2020 and should have inquired sooner about her rights.
The appeal court pointed out that the respondent’s family doctors and other specialists gave medical opinions similar to the neuropsychologist’s, beginning in 2016, and did not suggest that her full recovery prospects were good.
The appeal court noted that the respondent experienced persistent, significant symptoms of her debilitating injuries over several years.
As agreed between the parties and including applicable taxes and disbursements, the appeal court awarded the appellant appeal costs of $15,000, as well as costs below of $26,000, comprising motion costs of $15,000 and action costs of $11,000.
