Court File and Parties

COURT FILE NO.: CV-14-511485 MOTION HEARD: 2019-01-08 REASONS RELEASED: 2019-04-10

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

FABIO SCALABRINI Plaintiff

• and-

AFIZUL KHAN, PARVEEN AKTHER and APOLLO FLEET MANAGEMENT SERVICES INC. Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Daniel Klein, for the Proposed Plaintiff Sean McGarry, for the Defendants/Plaintiffs by Counterclaim

REASONS RELEASED: April 10, 2019, Reasons on Motion to Add Party with FLA Claim

I. Background

I. Background

1This action commenced in 2014 arises from the injuries sustained by the Plaintiff Fabio Scalabrini on or about June 12, 2014, as a result of a rear-end motor vehicle collision that occurred on the Lower Jarvis Street ramp to proceed westbound on the Gardiner Expressway.

2Now in late 2018 the plaintiff’s spouse, Cinzia, seeks to recover damages for injuries suffered by her which were subsequently developed.

3The Plaintiff submits that the Proposed Plaintiff's injuries could only be discovered after the full impact of the Plaintiff, her husband's injuries and impairments had set in and impacted her life and the safety of their living environment, which occurred on or about October 1, 2018. As a consequence it is submitted that the evidence shows reason to add Cinzia as a Plaintiff pursuant to the Family Law Act to the within action, on the basis of discoverability.

II. History

II. History

4At his Examination for Discovery on October 25, 2016, the plaintiff Fabio testified that immediately prior to the Accident, he and his wife, Cinzia Scalabrini ("Cinzia") had purchased slate tiles from Vermont at a cost of approximately $34,000 as the roof of their home needed to be redone.

5He testified that they had specifically chosen to go with the costlier slate roof option as opposed to the more traditional asphalt shingles as it would provide "lifetime" use and it is also more aesthetically pleasing.

6As well Fabio testified that he intended to redo the roof himself. However, following the Accident, Scalabrini's injuries made him incapable of repairing the roof himself as he gets dizzy when he climbs up a ladder.

7Apparently the delay in redoing the roof resulted in leaks which ultimately gave rise to a “mold issue”.

8The moving party asserts that only on October 1, 2018 when the mold inspection was conducted at their home, was the new evidence regarding the liability of the Defendants made discoverable. They now assert that the mold was due to the Plaintiff’s physical inability to replace the roof, as he was debilitated by his injuries arising from the Accident.

9It is further submitted by the Plaintiff that only through reasonable diligence and the passing of time, could the Plaintiff and Proposed Plaintiff discover the new information regarding the claim of the Proposed Plaintiff. At the time of the issuance of the Statement of Claim, the Proposed Plaintiff could not have known the extent and severity that her husband’s injuries and impairments would affect her.

10Consequently, the Plaintiff submits that the two year limitation period set out in the Limitations Act, 2002 does not apply to derivative claims; or in the alternative, that it has not yet expired with respect to the Proposed Plaintiff’s Family Law Act claim, and “will not until October 1, 2020”.

11The Scalabrinis submit that no prejudice would result from amending the Statement of Claim in the manner proposed, or alternatively, any potential prejudice could be compensated for by costs or by an adjournment.

12Thus it is submitted that the Proposed Plaintiff could not have known the full extent and severity that her husband, the Plaintiff’s injuries would have on her. It was not until the Proposed Plaintiff began to experience health concerns on account of the mold growing in her house, that the full extent of her own injuries became apparent, as well as the extent of her expenses incurred for the benefit of the Plaintiff, housekeeping services performed in place of the Plaintiff, and losses in care, guidance and companionship became apparent.

III. Application of The Law to The Facts

III. Application of The Law to The Facts

13The requested amendments are thus sought on the basis that when the Statement of Claim was issued, it was not apparent that the Proposed Plaintiff had a claim against the Defendants. It was only after the Proposed Plaintiff’s health began to deteriorate as a result of the developing mold in the house, that the full extent of the effect of the Plaintiff's injuries on her, became apparent.

14The motion is brought under Rules 5.04 and 26.01 of the Rules of Civil Procedure seeking an Order to add Cinzia as a Plaintiff to this action and leave to amend the Statement of Claim accordingly.

15Rule 5.04(2) of the Rules of Civil Procedure gives the Court the authority to add a party at any stage of the proceeding:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

16Rule 26.01 further gives the Court the authority to amend pleadings at any stage in the proceeding:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

17In addition to these Rules it is necessary to consider the provisions of the Family Law Act, R.S.O. 1990, c. F.3 providing for specific rights in the event of injuries or death to a family member [my emphasis added]:

Right of dependants to sue in tort

61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, … [and other relatives] of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction

18The section goes on to identify the types of damages that may be recoverable in case of such injuries:

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

19Under the Limitations Act, 2002 there is a two year basic limitation period to commence an action, subject to discovery:

4. 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.

20Section 5(1) of the Act, indicates that 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).

21Section 5(2) of the Act states:

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.

22Here the alleged condition of the proposed plaintiff did not develop until months after the date of the accident. I am satisfied this statutory presumption has been refuted in this case and thus the operative date is thus the date when the Proposed Plaintiff ought to have known of all of the components in section 5(1) with respect to her injuries.

IV. Discoverability

IV. Discoverability

23What is required to establish discoverability has been the subject of a number of decisions which I have considered in arriving at my conclusion.

24The Supreme Court of Canada in Peixeiro v Haberman, [1997] 3 SCR 549 (at paras 36 and 39) stated that “discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it.”

25There, Justice Major writing for the Court considered whether the discoverability principle applies so as to postpone the running of time until the material facts underlying the cause of action, including the extent of the injury, are known. Discoverability must balance fairness for both the plaintiff and the proposed defendant:

In balancing the defendant's legitimate interest in respecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action before he could reasonably have discovered that he had a cause of action is a compelling consideration. The diligence rationale would not be undermined by the application of the discoverability principle as it still requires reasonable diligence by the plaintiff. [Emphasis Added]

26My former colleague Master Pope addressed similar issues in Conflitti v Dhaliwal, 2010 ONSC 3218 at para 19. There she observed that in order to assess discoverability, “the motions judge or master must examine the evidentiary record before it is determined if there is an issue of fact or of credibility on the discoverability issue.”

27If the court determines that there is such an issue, Master Pope held that the plaintiff should be added with leave to the defendants to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the essential facts that make up the cause of action against the defendants were actually known to the proposed plaintiff or her solicitor within two years of the date of the accident, the motion should be refused.

28That is not the case in the present matter as I understand the admittedly sparse evidence.

29The evidentiary record is to be assessed at a low level. In Wilson v Arseneau, 2012 ONSC 2879 at para 34 Justice McDermot observed that:

“ .. providing an evidentiary basis is not the same as proving the facts on the balance or probabilities. The test for joinder of a party under these circumstances is not steep.”

30In that case, the court added the Family Law claimants to the action, following the death of the main plaintiff, even though the FLA claims would be statute barred if based on the date of the accident. The court found that the FLA claim was derivative of the main action, which was brought in time. Justice McDermott considered the facts in a number of cases where leave was refused but observed:

[22] These cases obviously stand for the proposition that a FLA litigant cannot commence his or her derivative claim more than two years after the accident giving rise to the primary cause of action. That is distinguishable from the present case, however. Here the plaintiff began the action on a timely basis without a joined FLA claim and there is no issue that the primary action is properly constituted and in time. The moving parties are seeking to add themselves as parties and it is acknowledged that their action is derivative of the first, which, as noted above, means that their claim "has not its origin in itself, but owes its existence" to the main action, which was begun in time. It therefore appears to me that a derivative action under the Family Law Act may be added to the main action outside of the limitation period by way of amendment so long as the main action is properly constituted. It only stands to reason if the main action was issued on time, derivative actions subject to that limitation period may be added to the main action thereafter as they are not subject to an independent limitation period as noted above.

31Later in the reasons in Wilson the court also observes:

[30] It is apparent that the threshold issue raised by Mr. Cho in argument … is a cogent factor in discoverability. This is firstly supported by the wording of s. 5(1)(a)(iii) of the Limitations Act, 2002. That section states that a factor in whether a matter is discoverable includes a determination as to whether"having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it". Obviously, if a claim for a matter reasonably lies under the threshold, a "proceeding" would not be "an appropriate means" of seeking a remedy. To hold otherwise, and to hold that a FLA claim below the threshold should have been brought in any event, would obviously encourage commencement of litigation without merit and put litigants needlessly at the risk of costs.

32This approach has been confirmed, again, by a number of cases. In Peixeiro v. Haberman, supra, the Supreme Court of Canada examined the issue of the Insurance Act deductible, where an action was brought more than two years after the accident which gave rise to the claim. There the court held that the cause of action arose only when it was reasonably determined that the damages exceeded the threshold. At para. 30, Major J. stated:

Under the no-fault system in place at the time of the accident, the mere happening of an injury in a car accident does not found a cause of action. No cause of action exists until sufficient severity of injury exists.

33Later, at para. 33, Justice Major states that “[t]he cause of action under s. 206(1) does not arise unless the injury meets the statutory exceptions set out in the Insurance Act.”

34In this regard I am again guided by the observations of Justice McDermot in Wilson (supra):

[34] With respect, providing an evidentiary basis is not the same as proving the facts on the balance of probabilities. The test for joinder of a party under these circumstances is not steep. …. there are credibility issues to the issue of discoverability; in such a case, the finding of fact as to discoverability should be determined at trial rather than a motion to add the party. The test for discoverability at a stage such as the present motion involves a similar test to that of summary judgment and if there is a genuine issue for trial as to discoverability, the motion should be granted: see Lidder v. Amyotte and Conflitti v. Dhaliwal, 2010 ONSC 3218.

35I am supported in my conclusion as well by the result in Giroux v. Pollesel, 2012 ONSC 2203.

36There a Divisional Court panel that included H.J. Smith C.J.S.C.J., and L.L. Gauthier R.S.J, upheld the motion judge's order granting leave to add family members over six years after the accident. It was not until after the surgery had taken place and the limitation period expired that Giroux's family members discovered their claim under the Family Law Act, s. 61. It was held that there is nothing in the Family Law Act or the Limitations Act, 2002, or in principle, that requires that the limitation period applicable to each derivative claim be the same as the limitation period applicable to principal claim.

V. Conclusion

V. Conclusion

37I am satisfied that there is a reasonable possibility that the Proposed Plaintiff could not have known the full extent and severity that her husband’s injuries would have upon her. It was not until the Proposed Plaintiff began to experience health concerns on account of the mold growing in her house, that the full extent of her own injuries became apparent, as well as the extent of her expenses incurred for the benefit of the Plaintiff, housekeeping services performed in place of the Plaintiff, and losses in care, guidance and companionship became apparent.

38A consideration of the relevant factors as outlined above leads me to only one conclusion. The Court should grant the leave sought by the moving party.

VI. Order

VI. Order

39For these reasons, I allow the motion and grant leave to add Cinzia Scalabrini as a Plaintiff in this action.

40Both sides provided me with their cost outlines at the conclusion of the argument before me. Having reviewed the amounts submitted I am satisfied that an award to the moving party in the total sum of $3200.00, inclusive of any Applicable taxes is appropriate in this case.

41In the circumstances, I am therefore awarding costs of this motion in that amount, on a partial indemnity basis, payable to the moving plaintiff by the Defendants within 45 days.