COURT FILE NO.: 279/06 (Div.)

04-CV-278607 CM3

DATE: 20070301

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Russell Kaskiw et al, Plaintiffs, Appellants;

-and-

Daimler Chrysler Canada Inc., Defendant

HEARD: February 26, 2007

BEFORE: Lane, J.

COUNSEL: Shane Katz, for the Appellants;

Corinne Habkirk, for the Respondent on the motion,

Eastway Plymouth Chrysler Ltd.;

Peter Pliszka for Defendant.

E N D O R S E M E N T

[1] This is an appeal from the order of Master Hawkins, dated May 26, 2006, dismissing the appellants’ motion to add the respondent Eastway as a party defendant to this action.

[2] This action arises out of personal injuries sustained by the appellant Russell Kaskiw (“Russell”). On April 16, 2002 the appellants attended at a vacuum cleaner store at 80 Brock Street, in the City of Whitby in the Province of Ontario. After purchasing a vacuum, the appellant Corinne Kaskiw took the keys for the appellants’ motor vehicle, a 2000 Chrysler Concorde LXI (“the motor vehicle”) from Russell, loaded the vacuum into the rear seat of the motor vehicle, and sat in the passenger side of the motor vehicle with the keys in her hand. Shortly thereafter, Russell exited the vacuum store and opened the driver side door of the motor vehicle, when suddenly and without warning, the motor vehicle began to roll down the driveway of the vacuum store, knocking Russell to the ground and dragging him into the middle of Brock Street (“the accident”). Russell suffered injuries to his right eye, ribs, knees and back.

[3] The motor vehicle had been manufactured by the defendant and purchased by the appellants from the respondent Eastway on May 30, 2000, and had been serviced before the accident by Eastway.

[4] The limitation period under the Highway Traffic Act expired on the second anniversary of the accident, April 16, 2004. No action had then been begun against the defendant or the respondent Eastway in respect of the accident. It does not appear that the applicability of any other limitation period was canvassed before the Master.

[5] In September, 2004, the appellants received in the mail from Daimler Chrysler a Safety Recall notice, dated September 10, 2004, advising them that some of the Concorde models manufactured in model years 1993 to 1999 contained a safety defect and were to be brought to the selling dealer for immediate repair. The appellants’ vehicle was not among those described in the notice as being potentially defective, as it was a 2000 model. They had previously owned an earlier model Concorde that was included in the list, which likely explains why they received the notice.

[6] The notice described the defect as follows:

The problem is: The transaxle floor shifter ignition/park interlock system on your vehicle may become inoperative. This may allow the shifter to be moved out of the “Park” position with the ignition key removed (or in the “Lock” position). It may also allow the ignition key to be removed when the shifter has not been placed in the “Park” position. If the shifter is not in the “Park” position, these conditions could allow the vehicle to roll away and cause a crash without prior warning.

[7] This description bears a striking resemblance to the accident as described by the plaintiffs in the Statement of Claim.

[8] The appellants took the notice to their solicitors and a Statement of Claim was issued on November 8, 2004 alleging that the vehicle was manufactured by the defendant in a defective manner such that the transaxle floor shifter ignition/park interlock system could fail and allow the vehicle to roll from a parked position. The respondent Eastway was not included as a defendant.

[9] On February 2, 2006, some fifteen months after the action against the defendant was brought, and some seventeen months after the recall notice was received, the plaintiffs moved to add Eastway as a party defendant. That is the motion before the Master and now before me on appeal.

[10] In his endorsement, the learned Master reviewed the principles on which Eastway could be added to the action after the expiry of the limitation period. He correctly identified Rules 26.01, 5.03(4) and 5.04(2) as relevant. He noted that the limitation period found in section 206 of the Highway Traffic Act had passed, that Eastway relied on it and that the plaintiffs relied upon the ‘discoverability’ principle, which the court applies in order to avoid the injustice of precluding an action before the person is able to raise it.[^1] The issue is when the plaintiff learned, or with reasonable diligence ought to have learned, that he had a cause of action against the defendant.[^2] In addition to the identity of a person who may be liable, there must also be discovery of the acts or omissions of that person that may constitute liability[^3] in order to start the limitation period running.

[11] In Zapfe[^4], the Court of Appeal said:

As appears from the decisions of the Supreme Court of Canada in Central Trust Co., 1988 46 (SCC), [1988] 1 S.C.R. 1206, and Peixeiro, the discoverability principle rests by definition on the requirement of due diligence by the plaintiff. Judicial respect for that requirement is inherent to proper regard for the diligence policy rationale, which underlies limitations statutes. That requirement dictates the test to be applied in determining the start of a limitation period under the discoverability principle: when can it be said that the plaintiff knew, or by reasonable diligence could have discovered, the material facts on which to base a cause of action against the proposed defendant?

[12] The passage just referred to emphasizes the central place of due diligence in the analysis. Master Hawkins appropriately gave effect to the lack of any evidence as to any efforts whatever on the part of the plaintiffs to uncover evidence of possible negligence on the part of Eastway either during the original period of two years following the accident, or in the fifteen months after the action was begun against Daimler Chrysler. There is simply no explanation of these matters. Immediately after the accident, the plaintiffs knew that there had been an occurrence which should not have occurred. They knew the identity of the manufacturer and of the selling and servicing dealer. There was no evidence put before the Master that they made any effort to inquire into why that occurrence might have happened.

[13] On these facts and having regard to these principles, the Master exercised his discretion and refused the order. The plaintiffs’ counsel contended that the order was unjust and unreasonable because it cut the plaintiffs out of their access to the process of the court; the order should have been to add Eastway and give it the right to plead the limitation defence, thus permitting the court to sort out the situation upon a full record. That is certainly an order that might have been made had there been even the slightest evidence that the plaintiffs acted with due diligence. But there is not even evidence that they had the vehicle examined by Eastway or anyone else to see what might have gone wrong, never mind having someone independent do so.[^5] The appellant submitted that the Master erred in making credibility assessments and findings of fact without a full evidentiary record. On the contrary, the Master made no such findings because the plaintiffs did not provide him with any evidence to assess. He was entitled to assume that counsel had put before him such evidence as existed. Neither the Master nor this court was asked to permit the filing of additional evidence and the inference is that none was available.

[14] In the circumstances, the Master was entitled to exercise his discretion as he did and I see no basis on which I can properly interfere. The appeal is dismissed with costs fixed at $2500.00

Lane J.

DATE: March 1, 2007

[^1]: Peixeiro v. Haberman (1997) 1997 325 (SCC), 151 D.L.R. (4th) 429 (S.C.C.) per Major J. at paragraph 36.

[^2]: Coutanche v. Napoleon Delicatessen 2004 10091 (ON CA), [2004] O.J. No. 2746

[^3]: Aguonie v Galion Solid Waste Material Inc. (1998) 1998 954 (ON CA), 38 O.R. (3rd) 161 (C.A.)

[^4]: Zapfe v Barnes (2003) 2003 52159 (ON CA), 66 O.R. (3rd) 397, (C.A.)

[^5]: There is a reference in the factum to an opinion of Eastway, but it does not appear in the evidence and cannot be considered on this motion.