Lima v. Moya, 2015 ONSC 3605
CITATION: Lima v. Moya, 2015 ONSC 3605
DIVISIONAL COURT FILE NO.: 75/15 and 76/15 DATE: 2015-06-15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Divisional Court File No. 75/15
Jonathan Lima Plaintiff (Appellant)
– and –
Carlos Eduardo Gonzales Moya, Economical Insurance Company and Wawanesa Mutual Insurance Company Defendants
– and –
Isaac Andrade and Washington Andrade Third Parties
– and –
Carlos Eduardo Gonzales Moya Fourth Party
AND BETWEEN:
Divisional Court File No. 76/15
Karla Mata Plaintiff (Appellant)
– and –
Carlos Eduardo Gonzales Moya, State Farm Mutual Insurance Company and Wawanesa Mutual Insurance Company Defendants
COUNSEL: B. Robin Moodie and C. Michael J. Kealy, for the Plaintiff/Appellant Troy Asselin, for the Respondents Isaac Andrade and Washington Andrade B. Robin Moodie and C. Michael J. Kealy, for the Plaintiff/Appellant
HEARD at Toronto: June 3, 2015
Overview
[1] Jonathan Lima and Karla Mata, the plaintiffs/appellants in two actions, appeal the orders of Master Haberman dated January 16, 2015 that dismissed their motions to add Isaac Andrade ("Isaac") and Washington Andrade as defendants to the actions. She held that the limitation period had expired with respect to their claims against the Andrades.
[2] For the reasons that follow, I would dismiss the appeals.
Factual Background
[3] The actions arose as a result of a motor vehicle accident on July 25, 2009. Both appellants were passengers in a vehicle driven by Isaac and owned by Washington Andrade.
[4] The appellants each brought an action against Carlos Moya, who had veered into Isaac's lane and struck his vehicle. As Moya was uninsured, the appellants also included, as defendants, Wawanesa Mutual Insurance Company, pursuant to their uninsured motorist coverage, and their own OPCF-44R insurers.
[5] The Andrades were not named as parties in the actions, although Mr. Lima's lawyer had written to Isaac in September 2009 to put him on notice that a claim for personal injuries was to be commenced against him because of the accident. The Andrades were named in a third party claim brought by Economical Mutual Insurance Company in August 2011.
[6] Mr. Moya was convicted of careless driving and failure to remain at the scene of an accident in 2010.
[7] The appellants did not seek to add the Andrades until after Isaac's discovery, which took place in February 2013. Isaac had revealed that he was not wearing glasses at the time of the accident, although he had received a prescription for glasses, and that he had looked at Ms. Mata just before the collision. In July 2013, the appellants each brought a motion under rule 5.03(4) to add the Andrades as defendants in their respective actions. Those motions were ultimately heard by the Master in late 2014.
The Statutory Provisions
[8] The applicable limitation period would have expired in July 2011, subject to the applicability of the discoverability doctrine. Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B provides:
Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[9] Section 5(1) of the Limitations Act prescribes when a claim is discovered. Essentially, a plaintiff must start the claim within two years of discovering the material facts on which the claim is based or within two years of the date when the material facts ought to have been discovered by the plaintiff with the exercise of due diligence (Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (Ont. C.A.) at para. 24). Section 5 reads, in part:
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[10] As Rouleau J.A. stated in Lawless v. Anderson, 2011 ONCA 102 at para. 23:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run….
The Decision of the Master
[11] This is not the usual case where the issue of discoverability relates either to the identity of a defendant or the extent of the plaintiff's damages. In the present case, the issue is when the appellants knew sufficient material facts on which to base a claim in negligence against Isaac Andrade or when they ought to have known with the exercise of due diligence.
[12] The Master found that the appellants had sufficient notice of the essential facts to make a claim of negligence against Isaac within the limitation period. They knew from the motor vehicle accident report, received in September 2009, that the applicable speed limit was 60 kph, and Isaac was driving at 65 kph. In the Master's view, the appellants then had sufficient information to include the Andrades as defendants.
[13] The Master also concluded that after the appellants received the redacted police file in late March 2011, they knew that the applicable speed limit was actually 50 kph, so that Isaac appeared to have been driving 15 kph over the speed limit. The Master concluded that there were "clear grounds" to add the proposed defendants to the action. She noted that even if Mr. Moya was primarily at fault, there was a basis to plead that Isaac had had sufficient time to take evasive action.
[14] In the alternative, the Master found that even if the appellants felt they did not have sufficient information at that point to claim negligence, they failed to use reasonable diligence to discover the relevant facts. In the circumstances of this case, she found that the appellants' counsel should have brought a Wagg motion to obtain the full Crown brief, which contained further relevant information pertaining to Isaac. As they did not do so, the Master held that they could not rely on discoverability.
The Standard of Review
[15] The standard of review on an appeal from the decision of a Master is the same as that on an appeal from a judge: correctness on a question of law and palpable and overriding error on a finding of fact or mixed fact and law, unless there is an extricable legal principle (Wellwood v. Ontario Provincial Police, 2010 ONCA 386 at para. 28).
The Issues
[16] The appellants raise three issues. First, they argue that the Master inappropriately relied on her own personal knowledge and on opinion evidence of a lay witness about the common practice among personal injury lawyers. She stated that the practice is to sue all owners and drivers of insured vehicles, and she noted the importance of doing so where the obvious tortfeasor is uninsured. The appellants rely on her statement in para. 80 of her reasons, "This is the starting point for these motions", to argue that she imposed a higher standard than due diligence.
[17] Second, the appellants argue that the Master inappropriately focused on the element of Isaac's speed, without taking a contextual approach to the determination of what the appellants and their counsel knew or ought reasonably to have known.
[18] Third, the appellants argue that the Master erred in finding that they had not satisfied the reasonable or due diligence requirement. They take issue with her conclusion that they should have pursued a Wagg motion to obtain the unredacted police documents.
Analysis
[19] With respect to the first issue, I am of the view that the outcome of the motions did not turn on the background information about common practice. The Master went on to a detailed consideration of the facts of the case, and she applied the correct legal principles respecting discoverability. Nor do I accept the argument that the Master, by her comment in para. 80, created a higher standard for purposes of discoverability – the "prudent lawyer" - rather than reasonable or due diligence.
[20] Second, the appellants argue that the Master inappropriately focused on the element of speed. In particular, they argue that the police documents considered by the appellants' counsel and Mr. Moya's criminal convictions in February 2010 showed that Mr. Moya was the cause of the accident. The appellants submit that counsel reasonably concluded that Isaac's conduct was not negligent, either because his speed was not excessive or it did not contribute the collision. They submit that the fact that a driver may have been speeding is not in and of itself determinative of liability for purposes of discoverability.
[21] In my view, the Master did not err in finding that the appellants had sufficient facts upon which to base an allegation of negligence against Isaac, at least by March 2011 when they received the redacted police file. At that time, they knew his speed was 15 kph over the speed limit, and that provided a basis for an allegation of negligence.
[22] While the appellants argue that they did not have sufficient facts to allege negligence until Isaac's discovery, the discovery of further allegations to support a claim of negligence does not start the limitation period running again. As the Court of Appeal stated in Lawless, above, at para. 36:
To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding, but is not needed to discover the claim.
[23] I also note that the proposed Amended Statement of Claim included an allegation of negligence that Isaac drove with undue speed. That allegation could have been made within the two year limitation period, given the appellants' state of knowledge at the time.
[24] The evidence supports the Master's conclusion that the appellants knew of the speeding allegation at the latest in March 2011, and they had sufficient facts upon which to plead an allegation of negligence based on excessive speed within the limitation period. Accordingly, I would not give effect to the second ground of appeal.
[25] Third, the appellants argue that the Master erred in finding that they had not satisfied the reasonable or due diligence requirement because appellants' counsel had not sought further information on which they could base a claim against Isaac. In particular, the Master was critical of their failure to bring a Wagg motion to obtain the Crown brief within the limitation period and their lack of an explanation for the failure to do so. There was information in that brief, disclosed to appellants' counsel in April 2012 after Economical Mutual's successful Wagg motion, that suggested Isaac was looking away from the road just before the collision. This could be seen in Ms. Mata's statement and in notes of Isaac's police interview.
[26] There is no need to deal with this ground of appeal. Given the Master's finding that the appellants had knowledge of material facts necessary to raise an allegation of negligence within the limitation period, the doctrine of discoverability does not apply.
[27] However, the Master based her finding on the lack of due diligence on two bases: the failure to bring a Wagg motion and the failure of counsel to show that they had asked their clients about what occurred in the car just before the impact. Prior to Isaac's discovery, Ms. Mata's description of the accident suggested Isaac was looking away from the road just prior to the impact and may not have been paying attention. She had told police that she was in the front seat and turned to speak to Mr. Lima in the back. When she turned around, she saw a car coming towards them and told Isaac to watch out. Then he tried to move the car out of the way.
[28] Ms. Mata's version was known to her, and so there is no argument with respect to its discoverability. Her description was presumably available to Mr. Lima's counsel because of an arrangement to share information on liability between counsel.
[29] Accordingly, the Master did not err in finding that the appellants were not entitled to rely on the doctrine of discoverability as a result of their lack of due diligence.
Conclusion
[30] As the appellants have identified no error of law nor any misapprehension of evidence arising to a palpable or overriding error, the appeals are dismissed. Costs are awarded to the respondent in the amount of $10,000, an amount agreed upon by counsel as attributable to the two appeals.
___________________________ Swinton J.
Released: June 15, 2015
CITATION: Lima v. Moya, 2015 ONSC 3605
DIVISIONAL COURT FILE NO.: 75/15 and 76/15 DATE: 2015-06-15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Divisional Court File No. CD 75/15
Jonathan Lima Plaintiff (Appellant)
– and –
Carlos Eduardo Gonzales Moya, Economical Insurance Company and Wawanesa Mutual Insurance Company Defendants
AND BETWEEN:
Divisional Court File No. DC 76/15
Karla Mata Plaintiff (Appellant)
– and –
Carlos Eduardo Gonzales Moya, State Farm Mutual Insurance Company and Wawanesa Mutual Insurance Company Defendants
REASONS FOR DECISION
Swinton J.
Released: June 15, 2015