Velasco et al. v. North York Chevrolet Oldsmobile Ltd. et al. [Indexed as: Velasco v. North York Chevrolet Oldsmobile Ltd.]
106 O.R. (3d) 332
2011 ONCA 522
Court of Appeal for Ontario,
Doherty, Laskin and Simmons JJ.A.
July 19, 2011
Limitations -- Discoverability -- "Ought to have known" -- Information in possession of appellant's solicitors after motor vehicle accident leading them to believe that D was owner of vehicle he was driving at time of accident -- Solicitors subsequently receiving Crown brief which contained licence plate search revealing that respondents owned D vehicle -- Law clerk reviewing Crown brief but not noticing licence plate search -- Information concerning ownership of vehicle actually coming to solicitors' attention two years later -- Solicitors acting with reasonable diligence in relying on information in their possession prior to receipt of Crown brief until contrary information actually came to their attention.
The appellant was injured in July 2005 when the car in which she was riding was struck by vehicles driven by D and C. Counsel for the appellant commenced an action in March 2006, relying on a statement in the police report that D was the owner of the vehicle he was driving at the time of the accident. D's insurer delivered a pleading admitting that D was the owner of the vehicle. Counsel for the appellant received a Crown brief in January 2007 that contained a licence plate search disclosing that the D vehicle was owned by the respondents. A law clerk reviewed the Crown brief but did not notice what the licence plate search revealed about the ownership of the vehicle. That information came to the attention of counsel in January 2009. The appellant issued a statement of claim against the respondents in May 2009. The respondents' motion for summary judgment dismissing the claim as statute-barred was granted. The appellant appealed.
Held, the appeal should be allowed.
The issue was whether counsel for the appellant "ought to have known" that the respondents were the owners of the D vehicle shortly after they received the Crown brief. Having regard to the combination of information counsel had indicating that D was the owner of the D vehicle, it was unreasonable for the motion judge to conclude that counsel should have treated ownership as a live issue upon receiving the Crown brief. Counsel acted with reasonable diligence [page333] in continuing to rely on that information until contrary information actually came to their attention.
APPEAL from the judgment of McEwen J. (2011), 2011 ONSC 85, 105 O.R. (3d) 47, [2011] O.J. No. 120 (S.C.J.) dismissing the claim against the respondents.
Statutes referred to Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1)
William G. Scott, for appellants. Van Krkachovski and Anthony Cole, for respondents.
[1] BY THE COURT: -- The appellant Elizabeth Velasco was seriously injured on July 23, 2005 after the car in which she was riding was struck by two other vehicles that may have been racing. Those two vehicles were driven by Steven Denyer and Douglas Coombs, respectively.
[2] In issuing a statement of claim on March 15, 2006 in relation to the accident, counsel for the appellants relied on a statement in the police report that Steven Denyer was owner of the vehicle he was driving at the time of the accident (the "Denyer vehicle").
[3] Denyer's insurer, the Royal & Sun Alliance Insurance Company, denied coverage to Denyer but added itself as a statutory third party to the action. In October 2006, Royal & Sun Alliance delivered a pleading admitting that Denyer was the owner of the Denyer vehicle.
[4] In January 2007, counsel for the appellants received a 732-page Crown brief that contained a motor vehicle licence plate search disclosing that, in fact, it was the respondents who owned the Denyer vehicle at the time of the accident. Although a law clerk reviewed the Crown brief for the purpose of assessing whether Coombs and Denyer were racing, the law clerk did not notice what the licence plate search revealed about the ownership of the Denyer vehicle. The licence plate search did not come to the attention of counsel for the appellants until January 2009 when they were preparing for Denyer's discovery. In May 2009, the appellants issued a statement of claim against the respondents, asserting a claim against them on the basis of their ownership of the Denyer vehicle.
[5] On a motion for summary judgment to dismiss the action against the respondents because of the expiry of the relevant limitation period, the motion judge said he could not conclude that counsel failed to exercise reasonable diligence in this case prior to receipt of the Crown brief given the combined information [page334] in the police report and the Royal & Sun Alliance pleading. However, the motion judge went on to hold that appellants' counsel should not have closed their minds to the issue of ownership of the Denyer vehicle based on that information and should have reviewed the Crown brief promptly upon its receipt with a view to determining the ownership issue.
[6] It is not disputed that appellants' counsel did not actually know that the respondents were the owners of the Denyer vehicle until January 2009.
[7] However, under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, a limitation period begins to run on the date a claim is discovered. And under s. s. 5(1) of the Act, a claim "is discovered on the earlier of, (a) the day the person with the claim discovers [among other things, that the act or omission that caused injury, loss or damage was that of the person against whom the claim is made], 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 5(1)(a)".
[8] Accordingly, the issue for the motion judge was whether the solicitors for the appellants "ought to have known" that the respondents were the owners of the Denyer vehicle shortly after they received the Crown brief.
[9] In our view, having regard to the combination of information appellant's counsel had indicating that Denyer was the owner of the Denyer vehicle, it was unreasonable for the motion judge to conclude that appellants' counsel should have treated the ownership issue as a live issue upon receiving the Crown brief. That combination of information led the motion judge to conclude that appellants' counsel acted with reasonable diligence prior to receiving the Crown brief. In our opinion, counsel for the appellants acted with reasonable diligence in continuing to rely on that information until contrary information actually came to their attention.
[10] The appeal is therefore allowed and the order of the motion judge dismissing the action is set aside. In accordance with the agreement of counsel, costs of the appeal are to the appellants on a partial indemnity scale, fixed in the amount of $7,500, inclusive of disbursements and applicable taxes.
Appeal allowed.