Coutanche et al. v. Napoleon Delicatessen et al. [Indexed as: Coutanche v. Napoleon Delicatessen]

72 O.R. (3d) 122

[2004] O.J. No. 2746

Docket Nos. C40803, C40068 and C40039

Ontario Court of Appeal

Simmons and Armstrong JJ.A. and Lane J. (ad hoc)

June 28, 2004

Limitations -- Derivative claimants -- Deceased becoming intoxicated at college event in 1998 and dying when struck by one or both of two drivers on highway later that evening -- Deceased's family members commencing action under Part V of Family Law Act against college and drivers more than three years after accident -- Motion judge extending limitation period pursuant to s. 2(8) of Family Law Act -- Defendants' appeal allowed -- Whether requirements of s. 2(8) were met could not be decided on evidence before motion judge and should be determined at trial -- "Special circumstances" not being required in order to extend limitation period under s. 2(8) of Family Law Act -- Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 61(4). [page123]

Limitations -- Discoverability -- Deceased becoming intoxicated at college event in 1998 and dying when struck by one or both of two drivers on highway later that evening -- Deceased's family members commencing action under Part V of Family Law Act against college and drivers more than three years after accident -- Plaintiffs becoming aware of all facts necessary to establish that they had claim against drivers several months after accident -- Discoverability principle not applying to claim against drivers -- Plaintiffs arguably unaware of existence of cause of action against college until after Ontario Alcohol and Gaming Commission held hearing in 2000 -- Plaintiffs' unawareness of limitation period not postponing limitation period -- Plaintiffs not having to show "special circumstances" in order to rely on discoverability -- Record before motion judge being insufficient to determine whether discoverability applied to delay commencement of limitation period with respect to action against college -- Discoverability issue should be determined by trial judge.

On October 31, 1998, the deceased became intoxicated at an event held by St. Lawrence College of Applied Arts and Technology ("the College"). After leaving the event, he apparently went to a delicatessen, from which he was ejected. He hailed a cab. He was struck and killed by one of two passing motorists, the defendants P and O, as he was walking on or beside Highway 401 at 1:00 a.m. The deceased's parents and siblings commenced an action under Part V of the Family Law Act, R.S.O. 1990, c. F.3 in February 2002. The deceased's mother, who was primarily responsible for the family's investigation into the deceased's death, stated that she was unaware of the two-year limitation period in s. 61(4) of the Family Law Act and that she believed that she did not need to do anything until the Ontario Alcohol and Gaming Commission had conducted a hearing and released its decision on the circumstances surrounding the deceased's intoxication on the night of the accident. The hearing was held in February 2000 and was attended by the deceased's mother. The Gaming Commission's decision to revoke the College's licence was delivered in May 2000. The plaintiffs had consulted a solicitor after the accident, and he corresponded with the Ontario Provincial Police and obtained the details of their investigation and the statements of P and O. The deceased's mother had reviewed the police report by September 14, 1999. The plaintiffs later retained new counsel. The plaintiffs brought a motion to extend the two-year limitation period. The motion judge held that the discoverability rule was applicable in the circumstances of this case and that it would be appropriate to extend the limitation period pursuant to s. 2(8) of the Family Law Act. The motion was granted. The College, P and O appealed.

Held, the appeal should be allowed.

To the extent that the motion judge relied on the plaintiffs' unawareness of the limitation period in her analysis of the discoverability issue, she was in error. Nevertheless, the plaintiffs' ignorance of the existence of a limitation was a possible factor in the good faith analysis under s. 2(8) of the Family Law Act.

While the motion judge referred to the requirement of "special circumstances" in the context of both discoverability and s. 2(8) of the Family Law Act"special circumstances" are not required in order to rely on discoverability. Nor is there any basis for reading additional requirements into the clear statutory provisions of s. 2(8) of the Family Law Act.

The issue on discoverability was when the plaintiffs learned that they had a cause of action against the defendants or when, with reasonable diligence, they [page124] ought to have done so. As to O and P, it was clear that all the information about their identities and the statements made to the police, plus the police report, were readily available with any degree of diligence, and were actually obtained by the plaintiffs' first solicitor, in early 1999. It was unnecessary to answer the question of how and why the deceased went to the highway and walked on it in order to decide if there was a cause of action against one or both of these drivers for running him down. Nor was it necessary to decide which driver did it. It was highly likely that only a trial could answer that question. Perfect certainty was not necessary. The reasonable person would have known by the receipt of the police information in early 1999 that there was a possible claim against O and P. The discoverability principle did not apply to delay the commencement of the running of the limitation period against O and P for a sufficient period to bring the start of the limitation to February 22, 2000, two years before the commencement of the action.

The same could not be said with certainty of the case against the College. If the College committed a tort, it consisted of serving the deceased after he had become intoxicated. Whether he was actually served after he had become intoxicated was not obvious and there was an arguable case for delaying action until the facts were explored at the hearing, or perhaps even until the Gaming Commission issued its reasons. The Gaming Commission hearing was held exactly two years before the action was commenced, and the plaintiffs had offered explanations, which might be accepted, concerning why they were unable to discover their cause of action before the hearing took place. It could not be said that the explanations could not be accepted by the trial judge on a full record. Discoverability could, therefore, be of assistance to the plaintiffs in delaying the commencement of the limitation so far as the College was concerned, but the evidence was sufficiently problematic that the facts should be determined at trial.

Section 2(8) of the Family Law Act permits the extension of a time prescribed by the Act if there are apparent grounds for relief; relief is unavailable because of delay that has been incurred in good faith; and no person will suffer substantial prejudice by reason of the delay. While the motion judge found that the delay was incurred in good faith, she did so in the context of a misunderstanding of the role of the mother's awareness of the limitation, as well as uncertainty in the evidence as to what instructions were given to the plaintiffs' first solicitor and what he was retained to do. In these circumstances, there was an issue of fact for trial on this point and the order could not stand. While it appeared that the defendants may not have suffered prejudice, this, too, was an issue for the trier of fact.

APPEAL from an order of Greer J. (2003), 2003 44825 (ON SC), 64 O.R. (3d) 634, [2003] O.J. No. 1495 (S.C.J.) granting a motion to extend a limitation period.

Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, 24 D.L.R. (3d) 720, consd Other cases referred to Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.); Canadian Microtunnelling Ltd. v. Toronto (City), [2002] O.J. No. 1399, 28 M.P.L.R. (3d) 109 (S.C.J.); Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, 6 O.A.C. 297, 14 D.L.R. (4th) 81, 47 C.P.C. 285, 30 M.V.R. 227 (C.A.); Hill v. Alberta (South Alberta Land Registration District) (1993), 1993 ABCA 75, 8 Alta. L.R. (3d) 379, 100 D.L.R. (4th) 331, [1993] 5 W.W.R. 47, 30 R.P.R. (2d) 186 (C.A.) [Leave to appeal to S.C.C. refused (1994), 36 R.P.R. (2d) 38n, 170 N.R. 79n], revg (1991), 1991 5852 (AB KB), 80 Alta. L.R. (2d) 268, [1991] 5 W.W.R. 448, 17 R.P.R. (2d) 117 (Q.B.) (sub nom. Hill v. Alberta); Luscar Ltd. v. Pembina Resources Ltd. (1994), 1994 ABCA 356, 24 Alta. L.R. (3d) 305, [1995] 2 W.W.R. 153 (C.A.) [Leave to appeal to S.C.C. refused (1995), 193 N.R. 398n]; [page125] Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, 207 D.L.R. (4th) 492 (C.A.); Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429, 217 N.R. 371, 30 M.V.R. (3d) 41, 12 C.P.C. (4th) 255, affg (1995), 1995 932 (ON CA), 25 O.R. (3d) 1, 127 D.L.R. (4th) 475, 42 C.P.C. (3d) 37, 16 M.V.R. (3d) 46 (C.A.); Tucker v. Fortune Financial Corp., [2003] O.J. No. 934 (S.C.J.); Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.); Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397, 230 D.L.R. (4th) 347, 39 M.P.L.R. (3d) 161, 41 M.V.R. (4th) 171, 35 C.P.C. (5th) 317, [2003] O.J. No. 2856 (C.A.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 61(4) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04(2), 26.01

Steven Baldwin, for appellant Gabriel Orsini. Lisa La Horey and Theresa Hartley, for appellants The Clarkson Inn and Gary James Palmer. K. Bruce B. Chambers, for appellant St. Lawrence College. Eric Williams and Esther Cantor, for respondent.

The judgment of the court was delivered by

[1] LANE J. (ad hoc): -- This is an appeal from the decision of Greer J. granting the respondents' motion to extend the two- year limitation period prescribed by s. 61(4) of the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA") until after the commencement of this action and dismissing the summary judgment motions for dismissal of the action brought by the appellants, St. Lawrence College of Applied Arts and Technology ("College"), Gary James Palmer and the Clarkson Inn (referred to collectively as "Palmer") and Gabriel Orsini ("Orsini") (referred to collectively as "the appellants").

[2] On October 31, 1998, Ronald Coutanche Jr. ("the deceased"), a student at St. Lawrence College, attended a special event held by the College that evening. The deceased consumed alcohol before and at the College event and became intoxicated. He left the event and apparently went to the Napoleon Delicatessen from which he was ejected. He hailed a cab driven by the defendant William Larkin, and asked to be, and was, taken to the intersection of Highway 401 and Boundary Road, from which he apparently meant to hitch a ride to Smith's Falls. At the time of the accident, he was walking on or beside Highway 401, near Cornwall, at about 1:00 a.m., when he was struck and [page126] killed by one or both of two passing motorists, the appellants Palmer and Orsini.

[3] The respondents are the deceased's parents and siblings. Their action is a derivative claim under Part V of the FLA. The statement of claim in this action was issued on February 22, 2002, more than three years and three months after the fatal accident. There are thus issues of the timeliness of the commencement of the action.

[4] The motion judge found that special circumstances existed which warranted an extension of the limitation period, that the discoverability principle applied, and that an extension of the limitation period was warranted under s. 2(8) of the FLA. The action is at an early stage and the motion was dealt with on the basis of the pleadings and affidavits. No viva voce evidence was heard.

[5] There are two main issues raised on this appeal:

(a) did the motion judge err in finding that the discoverability rule was applicable to the facts of this case?

(b) did the motion judge err in extending the limitation period pursuant to s. 2(8) of the FLA?

[6] Part V of the FLA deals with dependants' claims for damages under the FLA and their right to sue in tort. Section 61(4) sets out the limitation period for actions under the FLA:

61(4) No action shall be brought under subsection (1) after the expiration of two years from the time the cause of action arose.

[7] Under s. 2(8) of the FLA, the court may, on motion, extend a time prescribed by the Act if it is satisfied that:

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

[8] The respondents' position before the motion judge, and on the appeal, was that the facts surrounding the fatal accident were unclear to them following this tragedy. As a result of a complaint by Janet Coutanche, the mother of the deceased, the Ontario Alcohol and Gaming Commission held a hearing to investigate the circumstances surrounding the intoxication of the deceased on the night of the accident. Mrs. Coutanche was the family member who was primarily conducting the investigation into her son's death. Mrs. Coutanche's evidence on the motion [page127] was that she was unaware of the limitation period and believed she did not need to do anything until the Gaming Commission hearing was conducted and a decision was released. At that time, Mrs. Coutanche intended to determine her course of action.

[9] The evidence at the Gaming Commission hearing was heard in February 2000, and Mrs. Coutanche attended. The Gaming Commission's decision to revoke the licence of the College was delivered in May 2000. Mrs. Coutanche's evidence was that, although informed by telephone in May about the decision to revoke the licence, she did not receive a copy of the decision then or ever.

[10] The respondents also consulted a solicitor, Mr. Kirkland, shortly after the accident, to investigate the matter for them. He corresponded with the OPP to obtain the details of their investigation and the statements of Mr. Orsini and Mr. Larkin. He received this information in January 1999 and it is clear that Mrs. Coutanche had reviewed the police report by September 14, 1999. There may have been some failure of communication between the respondents and Mr. Kirkland, because Mrs. Coutanche said that she was surprised to learn, later, that no action had been begun after the Gaming Commission's decision of May 2000.

[11] The position of the appellants on the motion, and before us, was that there were no issues of discoverability to trigger that rule and no circumstances to justify resort to s. 2(8) of the FLA. Well within the limitation period, the respondents knew the identities of the two drivers; knew that the deceased was intoxicated at death; knew that he had been drinking at the College; knew the level of that intoxication from the coroner's report; knew the potential liability of a bar serving intoxicated patrons (because the mother of the deceased had owned a bar); and knew, from attending the hearing, what the evidence was as to that potential liability. The respondents therefore had all the information necessary to commence proceedings against each appellant. Neither the mother's unawareness of the limitation, nor the possibility that their solicitor may not have acted as instructed was a proper basis for an extension.

The Motion Judge's Reasons

[12] The motion judge reviewed the facts as set out above and turned her attention to the discoverability rule. She noted the decision of this court in Peixeiro, [^1] where the court referred to the [page128] injustice of time running against a plaintiff when there was no possibility of bringing an action, and continued [at para. 13]:

The evidence before me is that the deceased's mother was unaware of any limitation period for the commencement of such an action. In addition, as the family member who was really making all the investigation into what had taken place that had or may have caused her son's death, the mother saw the need to wait until the Hearing had taken place and a decision reached regarding the College's role the night of the function attended by her son.

[13] At para. 15, the motion judge stated that whether the respondents were reasonably diligent in obtaining sufficient information to determine whether a cause of action existed is an issue of fact to be determined at trial.

[14] Later, at para. 17 of her reasons, the motion judge discussed the role of counsel who had been engaged to succeed the original counsel for the respondents, and found that it was understandable that new counsel could not issue a statement of claim immediately, given that this accident involved "complicated circumstances as to how the deceased came to be on Highway 401 in the middle of the night and who should be sued". She thus accepted the major explanation of the plaintiffs for the delay subsequent to the release of the findings of the Gaming Commission.

[15] At para. 20, the motion judge rejected the inference that the mother of the deceased, as a former owner of a bar, must have been aware of the potential liability of the College; the law in the area was evolving.

[16] Finally, beginning at para. 21, the motion judge said:

While the mother may have known that her son had been drinking at the College function, she did not know what the College's position was going to be, nor did she know what the outcome of the Hearing would be. The affidavits of the siblings show this. In my view, the circumstances of this case do fit within those "peculiar circumstances" that the Supreme Court of Canada described in Basarsky, [^2] supra. The deceased was not a passenger in a vehicle at the time of the accident, was not driving a vehicle at the time of the accident but was alive and walking or hitch-hiking in the middle of the night on Canada's major highway. The circumstances as to how the deceased happened to be on that highway are peculiar, since it now appears that he had been left near the highway, in a drunken state, by an unknown taxicab driver. [^3]

Under these circumstances, I am satisfied that the discoverability rule applies, and that these peculiar circumstances fall within apparent grounds [page129] for relief to extend the limitation prescribed by the FLA. The delay was incurred in good faith. Order to go extending the limitation accordingly.

Analysis

[17] There are a number of issues in this case, each of which requires its own analysis. In relation to the first ground of appeal, namely, did the motion judge err in finding that the discoverability rule was applicable to the facts of this case, there are three themes: (i) the respondents' unawareness of the limitation; (ii) whether there must be "special circumstances" as described in the Basarsky line of cases in order to rely on discoverability; and (iii) the application of the discoverability principle to the facts of this case including whether the discoverability issue should be dealt with defendant by defendant, or globally, as the motion judge did. In relation to the second ground of appeal, namely, did the motion judge err in extending the limitation period pursuant to s. 2(8) of the FLA , there are two themes: (i) whether the statutory criteria in s. 2(8) of the FLA have been met; and (ii) whether there is an added requirement, beyond s. 2(8) of the FLA, of "special circumstances".

1. Did the motion judge err in finding that the discoverability rule was applicable to the facts of this case?

(i) The plaintiffs' unawareness of the limitation

[18] The plaintiffs' ignorance of the limitation period is referred to three times [^4] in the reasons and submissions were made to us that the motion judge had erred in giving any weight to this fact. Reference was made to the decision of the Alberta Court of Appeal in Hill [^5] where the point was made that error as to, or ignorance of the law did not postpone the running of a limitation period. A slightly fuller discussion of the point is found in Luscar [^6] at para. 127:

What is it that must be discovered? Discovery applies to the facts, not the law. This point is made in the recent decision of this court in The Royal Canadian Legion Norwood (Alberta) Branch 178 v. The City of Edmonton (1994), 1994 ABCA 37, 149 A.R. 25, 16 Alta. L.R. (3d) 305 (C.A.). [page130] In that case, the issue of whether s. 4(1)(e) of the Limitations Act refers to discovery of the facts or the law was directly addressed at p. 9 where Lieberman J.A. adopted the reasoning of an earlier decision in the same court:

The issue of whether "discovery" applies to the facts or to the law or to both was addressed by this court in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 135 A.R. 266; 33 W.A.C. 266; 8 Alta. L.R. (3d) 379. In that decision Côté, J.A., delivering the unanimous judgment of the court, referred to a case comment on the trial judgment then under appeal and said at p. 385:

Discoverability relates to facts, not law. Error or ignorance of the law, or uncertainty of the law, does not postpone any limitation period.

[19] Thus, to the extent that the motion judge relied on the plaintiffs' unawareness of the limitation period in her analysis of the discoverability issue, she was in error. Nevertheless, the plaintiffs' ignorance of the existence of a limitation is a possible factor in the good faith analysis under s. 2(8) of the FLA.

(ii) Whether there must be special circumstances in order to rely on discoverability

[20] In paras. 20 and 21 of the reasons, the motion judge referred to the requirement of "special circumstances" as mentioned in Basarsky and similar cases, in the context of both discoverability and s. 2(8) of the FLA. As to the question of when there must be "special circumstances" shown, it should be observed that the leading "special circumstances" cases, such as Basarsky [^7], Deaville, [^8], and Mazzuca [^9] are all cases concerned with the court's exercise of the power of amendment despite the expiry of the relevant limitation period. The inherent power of the court to intervene in such cases is a very old and established power. As early as 1887 in Weldon, [^10] it was described by Lord Esher M.R. as a settled rule of practice that in special circumstances amendments may be permitted after the intervention of a limitation. Mazzuca confirmed that those principles continue to apply to the added party and amendment rules -- rule 5.04(2) and rule 26.01 -- in the present day [Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. [page131]

[21] Is there a requirement for "special circumstances" in applying the discoverability rule? In a very real sense, the conditions required to engage the discoverability rule are themselves "special circumstances" and the argument is circular. What could be more "special" than the fact that the plaintiff, acting diligently, was unaware of the possibility of an action? Once that principle is engaged, there is no need for additional hurdles for parties to surmount to avoid abusing the process of the court.

[22] More fundamentally, the discoverability rule is not concerned with the expiry of the limitation, but with its commencement, a point made by this court in Zapfe [^11] at paras. 46 and 47. The analysis of the court's powers when a limitation has expired is not necessarily appropriate to the very different issue presented by the concept of discoverability and its impact upon the commencement of the running of time. The latter has been described by this court in Zapfe at paras. 24, 32 and 33:

As appears from the decisions of the Supreme Court of Canada in Central Trust Co. 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?

Second, in Aguonie, [^12] the discoverability principle was held to apply to the identity of the tortfeasor and, in addition, to the acts or omissions of a potential tortfeasor identifying him or her as such. Justice Borins (ad hoc), writing on behalf of the court in Aguonie, stated, at p. 170 O.R.:

While it is true that many of the cases in which [the discoverability principle] has been applied concern a plaintiff's discovery of the extent of an injury, or the delayed effect or result of a defendant's negligence, this case concerns the discovery of a tortfeasor. The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability.

Later in his reasons, Borins J. (ad hoc) said (at p. 172 O.R.):

The starting point for the application of the discoverability rule . . . is the time when the appellants' cause of action arose. This will define the [page132] starting date of the limitation period. It is a question of fact when the cause of action arose and when the limitation period commenced. The application of the discoverability rule is premised on the finding of these facts: when the appellants learned they had a cause of action against the respondents; or, when, through the exercise of reasonable diligence, they ought to have learned they had a cause of action against the respondents. These facts constitute genuine issues for trial . . .

[23] I conclude that there is no requirement to find additional special circumstances when applying the discoverability rule.

(iii) The application of the discoverability principle to the facts of this case, including whether the discoverability issue should be dealt with defendant by defendant

[24] Applying these principles to the present case, the issue on discoverability is when the plaintiffs learned that they had a cause of action against the defendants, or when, with reasonable diligence, they ought to have done so. Given the widely varying circumstances of the several defendants, such an analysis must deal separately with each defendant, even though the result may well be that the limitation began on different dates for different defendants.

[25] In performing the analysis, it must not be forgotten, as Borins J. noted in Aguonie, supra, and as the motion judge correctly observed in her reasons, that these are issues of fact, and unless the evidence before the motion judge leaves no doubt, they are issues of fact for a trial.

[26] As to the two drivers, Orsini and Palmer, it is clear that all the information about their identities and the statements made to the police, plus the latter's report, were readily available with any degree of diligence, and were actually obtained by solicitor Kirkland, by early 1999. It is not necessary to answer the question of how and why the deceased went to the highway and walked on it in order to decide if there was a cause of action against one or both of these drivers for running him down. Nor was it necessary to determine which driver did it. It is highly likely that only a trial could answer that question. Perfect certainty is not necessary. The reasonable person would have known by the receipt of the police information in early 1999, or at the latest by the time Mrs. Coutanche reviewed the police report in September 1999, that there was a possible claim against these drivers. There is no room on the record before us for the application of discoverability to delay the commencement of the running of the limitation against the drivers for a sufficient period to bring the start of the limitation to February 22, 2000, two years before the commencement of the action. [page133]

[27] The same cannot be said with certainty of the case against the College. The College committed no tort by serving alcohol at its event. If there was a tort, it consisted of serving the deceased after he had become intoxicated. Whether those serving the deceased at the event did so was not obvious and there is certainly an arguable case for delaying action until the facts were explored at the hearing, or perhaps even until the Gaming Commission issued its reasons. The Gaming Commission hearing was held February 22 and 23, 2000, exactly two years before the action was commenced, and the respondents have offered explanations, which might be accepted, concerning why they [are] unable to discover their cause of action before the hearing took place. The defendants submit that these explanations fall short, but the motion judge found them plausible and we are not prepared to say, on this record, that the explanations could not be accepted by the trial judge on a full record. Discoverability could, therefore, be of assistance to the plaintiff in delaying the commencement of the limitation so far as the College is concerned, but the evidence in this record is sufficiently problematic that the facts should be determined at the trial.

[28] The remaining defendants have not appealed and there is no reason to consider their particular facts in these reasons.

2. Did the motion judge err in extending the limitation period pursuant to [s. 2(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [FLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)?

(i) Have the statutory criteria in [s. 2(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [FLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) been met?

[29] Turning from discoverability to s. 2(8) of the FLA, the first issue is whether the conditions of the statute have been met. They are: that there are apparent grounds for relief; that relief is unavailable because of delay that has been incurred in good faith; and that no person will suffer substantial prejudice by reason of the delay.

[30] There is some dispute as to what the relief is that is mentioned in the first condition. Is it the relief sought in the proposed action, or is it relief from the limitation? This issue is answered by examining the second condition, which is that relief is unavailable because of the delay. The only such relief is that in the main action which is unavailable because of the expiry of the limitation period. Therefore the first condition is that there are apparent grounds for the relief sought in the action. It is clear in this case that there are such grounds as against the drivers and the College. [page134]

[31] On both the first and second requirements, it was submitted that certain admissions made by Mrs. Coutanche on her examination, to the effect that she did not think that it was wrong that the vehicles hit her son; and evidence from the siblings that they were advised not to bring an action, meant that either she knew that there was no reasonable cause of action here, or the delay was not incurred in good faith. On the other hand, it was said that Mrs. Coutanche was not a witness to the accident and her admission amounts to an opinion and not an admission of a relevant fact. She has the right to test that conclusion if she wishes. Neither her evidence nor the lawyer's advice to the co-plaintiffs is an admission that there is no cause of action. There are many other reasons why such advice might be given. On this state of the evidence, in my view, it was an error to decide this issue upon a motion, without cross-examination in the presence of the trier of fact.

[32] The second requirement is that the delay, which has made the relief unavailable, has been incurred in good faith. The motion judge so found. However, she did so in the context of a misunderstanding of the role of the mother's unawareness of the limitation, as well as great uncertainty in the evidence as to what instructions were given to solicitor Kirkland and indeed what he was retained to do. In these circumstances, there is an issue of fact for trial on this point and the order in appeal cannot stand.

[33] The third requirement is that no person will suffer substantial prejudice by reason of the delay. It is important to observe that the prejudice at issue here is prejudice from the delay and not prejudice from the making of the order sought to extend the time.

[34] In Deaville, supra, this court held [at p. 730 O.R.] that:

. . . the expiry of the limitation period creates a presumption, however slight in some cases, of prejudice to the defendant. It may be that the mere recitation of the facts and history of the case makes it clear there is no prejudice to the defendant and it can be inferred that he knew, within the limitation period, of the case and the nature of the claims now being made against him. Alternatively, the defendant may file material which establishes prejudice.

[35] None of the defendants filed affidavits to establish prejudice. There is no evidence that witnesses have died or become unavailable. Counsel for the Palmer defendants conceded that the insured received notice of the loss at the incident and that "one can only assume that it was shortly thereafter" that he notified his insurer. A request for the insurer's knowledge as to when it was notified was not answered. A similar assumption may well be justified as to the defendant Orsini. The College became aware of the complaint by Mrs. Coutanche well within the limitation [page135] period. While it appears that the appellants may not have suffered prejudice, in the circumstances, this too is an issue for the trier of fact.

(ii) Whether there is an added requirement, beyond [s. 2(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [FLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html), of "special circumstances"

[36] As already noted, in paras. 20 and 21 of the reasons, the motion judge referred to the requirement of "special circumstances" in the context of both discoverability and s. 2(8) of the FLA. As with the discoverability rule, the conditions required to engage s. 2(8) of the FLA are themselves "special circumstances" and any suggestion that more is required is circular. In any event, I see no basis for reading additional requirements into what is a clear statutory provision.

IV. Disposition

[37] In the result, I would allow the appeal, set aside the order of Greer J. relating to the extension of the limitation period insofar as it affects the appellants, and substitute the following order: (i) all issues relating to the respondents' request for an extension of the limitation period in respect of the College are adjourned to the trial; (ii) the respondents' requests for an extension of the limitation period in respect of the appellants Palmer and Orsini pursuant to s. 2(8) of the FLA are adjourned to the trial; and (iii) the balance of the respondents' motion for an extension of the limitation period in respect of the appellants Palmer and Orsini is dismissed.

[38] The appellants may file brief written submissions concerning the issue of costs within seven days following the release of these reasons and the respondents may file brief written submissions in response within seven days thereafter.

Appeal allowed.

Notes

[^1]: Peixeiro v. Haberman (1995), 1995 932 (ON CA), 25 O.R. (3d) 1, 127 D.L.R. (4th) 475 (C.A.), affd 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429.

[^2]: Basarsky v. Quinlan, 1971 5 (SCC), [1971] S.C.R. 380, 24 D.L.R. (3d) 720.

[^3]: Now known to have been the defendant Larkin.

[^4]: At paras. 6, 7 and 13.

[^5]: Hill v. Alberta (South Alberta Land Registration District) (1993), 1993 ABCA 75, 100 D.L.R. (4th) 331, 8 Alta. L.r. (3d) 379 (C.A.), leave to appeal refused [1994] 1 S.C.R. viii.

[^6]: Luscar v. Pembina Resources Ltd., 1994 ABCA 356, [1995] 2 W.W.R. 153, 24 Alta. L.R. (3d) 305 (C.A.) at para. 127. See also Tucker v. Fortune Financial Corp., [2003] O.J. No. 934 (S.C.J.) at para. 16, and Canadian Microtunnelling Ltd. v. Toronto (City), [2002] O.J. No. 1399, 28 M.P.L.R. (3d) 109 (S.C.J.), at para. 110.

[^7]: Supra, note [2].

[^8]: Deaville v. Boegeman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725, 14 D.L.R. (4th) 81 (C.A.).

[^9]: Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768, 207 D.L.R. (4th) 492 (C.A.).

[^10]: Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.).

[^11]: Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397, 230 D.L.R. (4th) 347 (C.A.).

[^12]: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222 (C.A.).