Court File and Parties

COURT FILE NO.: CV-18-593855 MOTION HEARD: 2022-10-31 REASONS RELEASED: 2023-02-21

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

AVRAHAM ABRAMOV Plaintiff

- and-

JOHN DOE and BELAIRDIRECT INSURANCE Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: I. Hosein, for the Plaintiff R. Susman, for the Proposed Defendant Nisim Saban V. Horsburgh, for the Defendant BelairDirect Insurance L. Covens, for the Proposed Defendants Mariana Slomyanski and Slomyanski Law

REASONS RELEASED: February 21, 2023

Reasons For Endorsement

I. Introduction

[1] This is a misnomer motion by the Plaintiff for leave to correct the name of the Defendant John Doe to name Nisim Saban and Joseph Algai as Defendants to this action involving an unidentified driver in a hit and run accident. In the alternative, the Plaintiff seeks leave to amend his Statement of Claim to add Mr. Saban, Mr. Algai, Mariana Slomyanski and Slomyanski Law as Defendants after the passage of the presumptive limitation period on the basis of discoverability.

II. Background

[2] This action arises from a motor vehicle accident on March 16, 2016 near the intersection of Yonge Street and Cactus Avenue in Toronto. The Plaintiff collided with a vehicle (the “Vehicle”) which immediately left the scene. Eden Mordchaev (“Eden”), visiting from Alberta, was driving in the area and witnessed the accident. He followed the Vehicle and called 911. The Plaintiff spoke to Eden on or about March 16, 2016. Eden advised the Plaintiff that the Vehicle was a gold Pontiac Montana van however, he could not recall what information he provided the 911 operator about the license plate number.

[3] The Plaintiff attended the Toronto Self-Reporting Collision Centre on March 16, 2016 and completed a Self-Reporting Collision Report (the “Collision Report”). He listed Eden as a witness and provided Eden’s phone number. He also indicated on the diagram in the Collision Report that the accident occurred on Steeles Avenue near the intersection of Cactus Avenue (between Bathurst Street and Yonge Street).

[4] The Plaintiff contacted the Toronto Police Service (“TPS”) on March 17, 2016 and requested the license plate number provided by Eden. The TPS operator advised that he had the license number but was unable to disclose it due to privacy reasons. The operator advised the Plaintiff to advise his insurer and have them request the information from the TPS Freedom of Information downtown office.

[5] In the Spring of 2016, the Plaintiff retained Mariana Slomyanski and Slomyanski Law. Slomyanski Law sent letters requesting information regarding the Vehicle on May 3 and September 12, 2016 and March 8, 2017 to the “records release section” of the downtown TPS office at 40 College Street. No response was received. In April 2017, a law clerk from Slomyanski Law called the TPS numerous times asking how to obtain the information and was advised that they could not release it.

[6] On August 16, 2017, Ms. Slomyanski put the Defendant BelairDirect Insurance (“Belair”), the Plaintiff’s OFCF-44R insurer, on notice of an unidentified motorist claim. The Plaintiff commenced this action by Notice of Action issued on March 13, 2018 with a Statement of Claim issued on April 12, 2018 claiming damages of $1,000,000. Belair delivered a Statement of Defence and Jury Notice on September 26, 2019.

[7] On December 18, 2019, Mr. Hosein and Campisi LLP (“Campisi”) were appointed Plaintiff’s counsel. On February 26, 2020, Belair’s counsel advised Elena Ginzburg, a law clerk at Campisi, that they were considering bringing a Rule 30.10 motion for production of the TPS file to determine the identity of the unknown driver. Counsel advised Ms. Ginzburg that the motion may not be necessary if the Plaintiff had Eden’s last name and address. The Plaintiff did not have this information.

[8] By letter dated May 20, 2020, Ms. Ginzburg requested the complete file from the TPS following up on August 27, September 2 and September 3, 2020. Ms. Ginzburg corresponded with Belair’s counsel on June 16 and 19, 2020 regarding the status of Belair’s potential Rule 30.10 motion. Belair’s counsel advised that the motion may not be applicable because the accident was reported at the Self-Reporting Collision Centre. He requested the Collision Report file and an opportunity to speak to the Plaintiff about Eden. Ms. Ginzburg advised counsel that the file had been requested and that he would have an opportunity to speak to the Plaintiff at his examination for discovery on September 15, 2020.

[9] Ms. Ginzburg exchanged correspondence with TPS in early September 2020. Among other things, TPS advised that Plaintiff’s counsel might be dealing with the wrong TPS office, the license plate number could not be released without consent of the driver and the recording could not be released without Eden’s consent. Ms. Ginzburg advised that she was seeking the 911 call logs and the TPS Disclosure Analyst advised that he would process her request as soon as possible. Accordingly, on or about September 8, 2020, Plaintiff’s counsel received a copy of the redacted 911 call logs which confirmed the make of the Vehicle as a gold Pontiac. The redacted call log included the “MRKR” number suggesting a portion of the license plate number was available. At his examination for discovery on September 15, 2020, the Plaintiff deposed that Eden advised him that he chased the Vehicle as it fled the scene and that the Vehicle was a “gold Pontiac van”.

[10] On January 22, 2021, Belair’s counsel advised Plaintiff’s counsel that in order to access unidentified motorist coverage, the Plaintiff would have to establish that the unidentified driver could not be ascertained or take reasonable steps to do so. There was also further discussion and apparent confusion as to the status of Belair’s proposed Rule 30.10 motion. Belair’s counsel requested that the unredacted TPS file and 911 call be obtained prior to mandatory mediation on February 11, 2021. On January 22, 2021, Ms. Ginzburg called Eden’s number, however, a woman answered who advised that this had been her phone number for 3 years and she did not know Eden. On January 22, 2021, Ms. Ginzburg also spoke to Mark Lau, another witness identified in the Collision Report. Mr. Lau recalled that the Vehicle was a gold Pontiac van and how the accident occurred however he did not know the license plate number or the identity of the unidentified driver.

[11] On April 15, 2021, the Plaintiff brought a motion pursuant to Rule 30.10 for production of the unredacted TPS file including the unredacted 911 call logs and recordings (the “Production Motion”). By Order dated April 21, 2021, Associate Justice Brott granted an Order compelling production. On July 16, 2021, Plaintiff’s counsel received an unredacted transcript and recording of Eden’s 911 call. Ms. Ginzburg reviewed the transcripts and listened to the recording. Ms. Ginzburg states in her affidavit that the MRKR number in the notes to the transcripts identified the license plate number as “AEWP587” and confirmed that the Vehicle was a gold Pontiac. However, a plate search of this number did not match the description of the Vehicle.

[12] Ms. Ginzberg also states that she listened to the 911 call recordings which included the call from Eden identifying the plate number as “BYDY860”. This was a different license plate number from the one in the transcript notes. On August 4, 2021, a license plate search was conducted for plate number “BYDY860” which matched the description of the Vehicle as a brown Pontiac Montana van and identified Mr. Saban as the owner and Mr. Algai as the lessor.

[13] The Plaintiff served his Motion Record on October 6, 2021. Mr. Saban’s evidence is that this was the first time that he became aware of the accident and this action. Mr. Saban states that neither he nor the Vehicle were involved in an accident on March 16, 2016. Mr. Saban states that at the time of the accident, he was leasing a brown Pontiac Montana van with license plate BYDY860 from Mr. Algai who was the owner. Mr. Algai has not responded and the parties have been unable to locate him. It is believed that he may have moved outside of Canada. Mr. Saban states that at the time, he was living in a house in Thornhill owned by the parents of a friend named “Neil” which was also occupied by several other residents. Mr. Saban states that the only accident he was involved in with the Vehicle occurred on September 20, 2020. The Vehicle was written off by his insurer and is no longer available.

[14] The parties first appeared before me on March 9, 2022. No attempts had been made to serve Mr. Algai and the motion was adjourned to April 9, 2022. At that attendance, as a result of discussions in court and between counsel, Plaintiff’s counsel advised that in addition to misnomer, the Plaintiff was also seeking leave to amend to add parties after the passage of the presumptive limitation period on the basis of discoverability. As the parties had not filed any submissions on this issue, the motion was adjourned to August 15, 2022 and subsequently rescheduled by the court for October 31, 2022.

III. The Law and Analysis

Pleadings Amendments Generally

[15] Rules 26.01 and 26.02 state:

“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.

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court.

[16] Rule 5.04(2) of the Rules of Civil Procedure provides that at any stage of a proceeding the court may 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.

[17] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[18] The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

“[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd Whiten v. Pilot Insurance Co. (1999), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.” (State Farm at para. 25).

Misnomer

[19] Glustein J. explained the distinction between Rule 26.02 and Rule 5.04(2) in Loblaw Properties Limited v. Turner Fleischer Architects Inc., 2018 ONSC 1376:

“11 Unlike a motion to amend, a party is not seeking to amend a pleading under Rule 26.02 when it asks the court to apply the doctrine of misnomer. Instead, under Rule 5.04(2), the title of a proceeding is corrected. No changes to the pleadings need to be made.

12 To conflate Rule 26.02 and Rule 5.04(2) is contrary to the principles in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CarswellOnt 4133 (Ont. CA). Cronk J.A. referred to "the difference in language between the two rules [which] suggest that the drafters of the rules intended to preserve for the courts under subrule 5.04(2) a discretion to permit or deny amendments relating to a change of parties" (at para. 26).”

[20] The test for misnomer was set out by K.M. van Rensburg J. (as she then was) in Spirito v. Trillium Health Centre, [2007] O.J. No. 3832 (S.C.J.); aff’d 2008 ONCA 778:

“3 The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the "litigating finger" is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim? If so, the defendant will be substituted unless there is prejudice that cannot be compensated for in costs or by an adjournment (Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672; Moreau v. Northwestern General Hospital (1988), 65 O.R. (2d) 128; Rakowski et al. v. Mount Sinai Hospital et al. (1987), 59 O.R. (2d) 349; McArthur v. Kaal, [2006] O.J. No. 1525). The alleged expiry of a limitation period cannot be set up as "prejudice" where the initial claim against the misnamed defendants was made within the limitation period (Kitcher et al. v. Queensway General Hospital et al., [1997] O.J. No. 3305).”

[21] More recently in Loy-English v. The Ottawa Hospital, 2019 ONSC 6075, MacLeod J. summarized the law of misnomer:

“19… e. To be a misnomer, the plaintiff must clearly have intended to sue the proposed defendant. The pleading must be drafted with sufficient particularity that an objective and generous reading of the pleading would demonstrate that the "litigation finger" is pointing at the proposed defendant. To put this another way, the pleading must be sufficiently clear that a properly informed defendant reading the allegation would be able to recognize that he or she was the target of the allegation. The allegation must be clear and definite on its face and not held together through a series of assumptions about what the person reading the statement of claim might know.”

[22] As Glustein J. held in Loblaw, limitation period defences do not apply:

13 The distinction between Rule 5.04(2) and Rule 26.02 is further demonstrated by the settled law that limitation period defences do not apply to a motion to correct a misnomer. Due diligence of the plaintiff (or a defendant) would be irrelevant. Even if a party knew of the existence of the proper name of the defendant, an incorrect name or a John Doe pleading based on no pleaded knowledge of the defendant can still be cured at any time provided the "litigating finger" test is met and there is no non-compensable prejudice arising from the misnomer (Stechyshyn v. Domljanovic, 2015 ONCA 889 at paras. 1, 17, 19; Skribans v. Nowek, 2012 ONSC 532 at paras 30, 34, 41).

24 Consequently, even if the plaintiff knew the identity of the defendant (e.g. the name of the emergency room as in Ormerod or the proper municipality as in Lloyd v. Clark, 2008 ONCA 343, 2008 O.J. No. 1682 (CA)), the plaintiff (or the defendant, as I discussed above) could still substitute the proper name of the defendant despite the passage of the limitation period. Knowledge of the defendant or discoverability does not impact the analysis on misnomer, subject to the courts' discretion (Skribans v. Nowek, 2012 ONSC 532 (Mast.), at para. 37).

[23] MacLeod J. provided the following guidance regarding the effect of notice in Loy-English:

“19… f. Notice to the defendant within the limitation period cannot be a factor in deciding whether or not misnomer applies for the simple reason that, as discussed earlier, there is no requirement to serve a defendant within the limitation period. The question is not whether the defendant did know he or she was being sued but whether on a fair reading of the claim he or she would have known.

g. Notice is relevant to the question of prejudice and the exercise of discretion. Actual notice to the proposed defendant will generally obviate any injustice in subsequently correcting the misnomer. Delay is also relevant to the issue of prejudice and to the exercise of discretion.

h. Notice may be sufficient if the claim against an unknown party has been brought to the attention of the named defendant and to an employer, organization or insurer with the means to determine who was involved in the alleged acts or omissions. In that case it may not be unfair to correct the misnomer once the identity of the other defendant is known even in the absence of actual notice.”

[24] Having considered the relevant factors and circumstances, I conclude that this is not a case of misnomer and that it is not just and reasonable in the circumstances to grant the Plaintiff leave to correct their Statement of Claim to name Mr. Saban as a Defendant.

[25] Based upon an objective, fair and generous reading of the Statement of Claim, I am not satisfied that the properly informed defendant having knowledge of the facts would know that the “litigating finger” was pointed at Mr. Saban. In my view, the allegations in the Statement of Claim lack the necessary particularity and are not sufficiently clear on their face for Mr. Saban to know that the “litigating finger” was pointed at him. Paragraph 3 states as follows:

“The Defendant John Doe was at all material times the owner and operator of an unidentified motor vehicle (hereinafter, “the Doe Vehicle”). The identity of John Doe has not been ascertained.”

[26] While the Statement of Claim provides the date and approximate time of the accident, Mr. Saban’s evidence is that neither he nor the Vehicle were involved in an accident at that time. In addition to the license plate number, the Statement of Claim does not provide any description of the Vehicle, including the make, model, colour or the kind of Vehicle such as a van or minivan. The Statement of Claim further states that the accident occurred at the intersection of Yonge Street and Steeles Avenue West whereas the Collision Report completed by the Plaintiff on the day of the accident states that it occurred at Steeles Ave. and Cactus Ave. I reject the Plaintiff’s submission that the fact that the accident location was “within kilometres” of where Mr. Saban was living at the time is sufficient. The Statement of Claim also identifies the John Doe Defendant as the “owner and operator” of the Vehicle when the evidence is that Mr. Saban was a lessee and his evidence on this motion is that he was not driving the Vehicle at the time.

[27] Given my conclusion, I decline to consider the court’s residual discretion to refuse to permit the correction (Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697 at paras. 26-33).

Discoverability

[28] If the doctrine of misnomer does not apply, then the Limitations Act, 2002 may apply, including: the basic limitation period of 2 years (s. 4); the discoverability provisions (s. 5); and section 21 (Patrick v. Southwest Middlesex (Municipality), 2017 ONSC 17 at paras. 10 and 49). The Defendants Ms. Slomyanski and Slomyanski Law advised that if I did not find that Mr. Saban should be named by misnomer, then they did not oppose being added as Defendants under the doctrine of discoverability. As Mr. Algai has not responded he will also be added.

[29] Sections 4 and 5 of the Limitations Act state:

“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.

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.”

[30] Section 21(1) of the Limitations Act provides that where a limitation period with respect to a claim against a person has expired, the claim shall not be pursued by adding the person as a party to an existing proceeding.

[31] In Morrison v. Barzo, 2018 ONCA 979, the Court of Appeal summarized the approach on a motion for leave to add a party which involves the possible passage of a presumptive limitation period:

[29] Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, [2016] O.J. No. 1745, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35, [2016] O.J. No. 3906, 2016 ONCA 585, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, [2018] O.J. No. 3129, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.

[30] Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires [page609] an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.

[31] The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.

[32] Second, the plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff's explanation should be given a "generous reading", and considered in the context of the claim: Mancinelli, at paras. 20 and 24.

[32] The Court of Appeal also provided the following guidance in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544:

i.) the motion judge is entitled to assess the record to determine, as a question of fact, if there is a reasonable explanation on proper evidence as to why the plaintiff could not have discovered its claim through the exercise of reasonable diligence. If a plaintiff does not raise any credibility issue or issue of fact about when its claim was discovered that would merit consideration on a summary judgment motion or a trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim by exercising reasonable diligence, the motion judge may deny the motion (para. 23);

ii.) the evidentiary threshold to be met by a plaintiff is low and whether the plaintiff and its counsel acted with reasonable diligence must be considered in context (para. 24);

iii.) in considering whether the plaintiff has provided a reasonable explanation as to why they could not have identified the party (or cause of action), the explanation is to be given a generous, contextual reading (para. 27);

iv.) a plaintiff’s failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time, rather, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b)(para. 30);

v.) where the issue is due diligence, the motion judge will not be in a position to dismiss the plaintiff’s motion in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgment motion (paras. 28 and 31).

[33] The Plaintiff did not actually discover Mr. Saban’s identity and therefore his claim against him until August 4, 2021 when his counsel conducted the license plate search which identified Mr. Saban as the owner and Mr. Algai as the lessor of the Vehicle. This was over 5 years after the accident (March 16, 2016) and over 3 years after the passage of the presumptive limitation period (March 16, 2018). Therefore, the issue is whether the Plaintiff has provided a reasonable explanation as to why Mr. Saban’s identity could not have been discovered with the exercise of reasonable diligence or put another way, whether a reasonable person in the plaintiff's circumstances ought to have discovered the claim before the passage of the limitation period and, if so, the date of such reasonable discovery. Alternatively, it may be that there is an issue of credibility or fact with respect to discoverability which must be determined at trial or on a summary judgment motion.

[34] The Plaintiff submits that he and his counsel acted with reasonable diligence by making numerous inquiries to determine the Vehicle’s license plate number and the identity of the driver and that he was only able to identify Mr. Saban on August 4, 2021 when his counsel obtained the results of the license plate search. Mr. Saban argues that the Plaintiff’s claim against him has expired because acting with reasonable diligence required that he bring the Production Motion or otherwise identify Mr. Saban before the expiry of the presumptive limitation period. On the record before me, I cannot conclude that the Plaintiff did not act with reasonable diligence or that he could have identified Mr. Saban sooner nor can I determine the date of reasonable discovery. In my view, this is an issue of fact and credibility which must be determined on a full record at trial or on a summary judgment motion and not at this stage of the proceedings. Accordingly, the appropriate remedy is to grant leave to add Mr. Saban as a Defendant with Mr. Saban granted leave to plead limitation defences.

[35] The Plaintiff and his counsel made numerous attempts to determine the Vehicle’s license plate number and the driver’s identity. The Plaintiff contacted Eden on or about the date of the accident then called the TPS. Ms. Slomyanski’s office wrote to the TPS in May and September 2016 and March 2017 and called in April 2017. Ms. Ginzburg wrote to the TPS in May 2020, following up on August 27, September 2 and September 3, 2020. She exchanged correspondence with the TPS in early September 2020 which resulted in the production of the redacted file and 911 transcript and call log. Ms. Ginzburg also corresponded with Belair’s counsel in February, May and June 2020 regarding the status of Belair’s potential Rule 30.10 motion and other steps to obtain the TPS file. She also attempted to contact Eden in January 2021 and spoke with Mr. Lau. All of these efforts were unsuccessful in obtaining the license plate number and identifying Mr. Saban.

[36] Mr. Saban argues that these efforts do not demonstrate reasonable diligence and that the Plaintiff should have brought a Rule 30.10 motion sooner rather than waiting for Belair to do so. Mr. Saban notes that once the Production Order was obtained, the unredacted TPS file and 911 logs and recordings were produced within 3 months and the Plaintiff was able to confirm the Vehicle’s license plate number and Mr. Saban’s identity. He submits that this should have been done before March 16, 2018, the date he submits the limitation period expired. Mr. Saban also asserts that the Plaintiff should have been more diligent in contacting Eden to obtain his address and consent. In my view, the factual and credibility issues for trial include the extent to which the Plaintiff did and was entitled to rely on Belair’s advice that it was considering bringing the Production Motion and apparent confusion between Plaintiff’s counsel and Belair as late as January 2021 about the status of the Production Motion. There are also issues related to Plaintiff’s counsel’s correspondence and discussions with the TPS including whether they were corresponding with the wrong TPS office and the directions they received from TPS staff. There are similar and related issues with respect to the Plaintiff’s attempts to obtain the information from Eden. In all of this, I am unable to determine the date of reasonable discoverability.

[37] Based on a generous consideration of the Plaintiff’s explanation, particularly in the context of a hit and run accident and the inherent difficulties in identifying the Vehicle and the driver in these circumstances, I reject Mr. Saban’s assertion that I should find that the Plaintiff’s claim against him has expired on the basis that the Plaintiff did not act with reasonable diligence. To accept Mr. Saban’s submissions, particularly with respect to the timing of the Rule 30.10 motion, would impose an obligation upon the Plaintiff at this stage of the proceedings which is not supported by any case law before me. This conclusion is consistent with the court’s previous guidance that at this stage of the litigation any doubt as to whether the steps taken by the Plaintiff could not amount to due diligence must be resolved on a full evidentiary record at trial or on a summary judgment motion and that the court should not impose an obligation of pre-discovery discovery (Wakelin v. Gourley, [2005] O.J. No. 2746 at para. 15; Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235 at para. 15).

[38] Mr. Saban also submits that he would suffer actual, non-compensable prejudice if he is added as a Defendant. Actual prejudice is any prejudice which would impair a party’s ability to defend the action (Carioca’s at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37). Given the passage of time, Mr. Saban claims that key evidence, documents and witnesses are no longer available which would impair his ability to defend this action.

[39] Mr. Saban submits that since the Vehicle is not available no inspection is possible to confirm that the Vehicle was not involved in the accident. However, Mr. Saban admitted on cross-examination that that he took the Vehicle in for yearly maintenance and the mechanic would likely have maintenance records which he alleges would “100%” support his position that the Vehicle was not involved in the accident. He also advised that the insurance file from the September 2020 accident contained pictures which would support his position is also accessible. However, neither he nor his counsel have made any inquiries into the availability of these maintenance and insurance records. Similarly, Mr. Saban claims that his cell phone records which would show where he was at the time of the accident are not available, however, his cross-examination testimony makes this unclear. There is no evidence before me that any other records, including the Plaintiff’s medical records, may no longer be available.

[40] Mr. Saban claims that Mr. Algai advised him that the Vehicle was insured but due to the passage of time, he has been unable to locate Mr. Algai to obtain particulars of the Vehicle’s insurance coverage. However, Mr. Saban has not made any other inquiries including obtaining an AutoPlus report. In fact, Belair has obtained an AutoPlus report which indicates that the Vehicle was not insured at the time of the accident.

[41] Mr. Saban also submits that key witnesses are no longer available including Neil and his parents. However, he admitted on cross-examination that he has made no inquires or tried to get in contact with him and conceded that there is no reason why he could not contact him. He also claims that he was likely at his place of worship at the time of the accident and has lost contact with others who were there but again has made no inquiries. While it appears that Eden’s phone number has changed, no additional efforts have been made to locate him and in any event, his contemporaneous evidence is preserved in the 911 recording.

[42] Based on the above, I am unable to conclude that Mr. Saban would suffer actual prejudice if leave is granted to add him as a Defendant.

[43] I am also satisfied that granting leave is consistent with Rule 1.04(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance in Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CarswellOnt (C.A) at paragraph 23:

“The combined effect of Rules 26.01, 5.04 and 1.04(1) generally is to focus the issue of non-compensable prejudice in the wider context of the requirement that a liberal construction is placed on the Rules to advance the interests of timely and cost-effective justice in civil disputes.”

[44] In this respect, granting leave to add Mr. Saban will ensure that the necessary parties, Belair as OFCF-44R insurer, the Plaintiff’s first counsel, Mr. Adai and Mr. Saban are all Defendants to the action so that all issues between the parties may be determined by the court or resolved. It will also ensure that the true lis of the Plaintiff’s claims are decided without the possibility that certain defendants might escape potential liability on a technical limitations defence (Khoury v. Scottish and York Insurance, 2018 ONSC 3881 at para. 20).

III. Disposition and Costs

[45] Order to go denying the Plaintiff’s motion to correct the Statement of Claim on the basis of misnomer. Leave is granted to add Mr. Saban, Mr. Algai, Ms. Slomyanski and Slomyanski Law as Defendants.

[46] If the parties are unable to agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) with me on a timetable to be agreed upon by counsel.

Released: February 21, 2023

Associate Justice McGraw