Court File and Parties

CITATION: Sloan v. Ultramar Limited, 2011 ONCA 91

DATE: 20110203

DOCKET: C52501

COURT OF APPEAL FOR ONTARIO

Armstrong, Epstein and Karakatsanis JJ.A.

BETWEEN

Audrey Sloan

Plaintiff (Appellant)

and

Ultramar Limited and Sauve Heating Limited Rick Brown and R.T. Brown Trucking Ltd.

Defendants (Respondents)

Counsel: Alexandra White, for the appellant, Audrey Sloan Mitchell K. Kitagawa, for the respondents, Rick Brown and R.T. Brown Trucking Ltd.

Heard: January 27, 2011

On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice, dated July 7, 2010.

ENDORSEMENT

[1] We agree with the appeal judge that the Master erred in finding that the evidence filed on behalf of the plaintiff raised an issue of fact or credibility on the discoverability issue that would merit consideration at a summary judgment motion or a trial.

[2] The oil spill that forms the basis of this action took place on February 23, 2004. The action was commenced February 22, 2006. The triggering event in terms of the discovery of a potential claim against the proposed defendants was the delivery, on August 9, 2006, of the statement of defence of the defendant, Ultramar Limited, which, in clear terms indicated the involvement of an independent contractor that actually delivered the fuel.

[3] Counsel for the plaintiff failed to act on this information until eight months later at the discovery of a representative of Ultramar, when she asked questions about the truck driver and the independent contractor. Only the name of an independent contractor was provided – a name that turned out to be erroneous. The undertakings given on this discovery, several of which related to the independent contractor and the truck driver, remained outstanding until April 30, 2009. The motion to add the truck driver and independent contractor was brought November 13, 2009.

[4] On this record, in the two years following the triggering event, the only step the plaintiff took to pursue the possibility of a potential claim against the proposed defendants was to question the representative of Ultramar on discovery about the truck driver and independent contractor.

[5] While the threshold on a motion to add a party is low, it was not open to the Master on the available evidence to find that the plaintiff had provided a reasonable explanation as to why the proposed defendants were not identifiable and therefore not named as parties prior to the expiry of the limitation period under s. 4 of the Limitations Act, 2002.

[6] As a result, the appeal judge did not err in setting aside the Master’s order.

[7] However, it is unclear why the appeal judge ordered that the costs awarded by the Master be paid, resulting in a net costs award of $500 payable by the proposed defendants to the plaintiff. Costs should have reflected the proposed defendants’ success on the issue.

[8] As a result, the appeal is dismissed except as it relates to costs. The appeal judge’s order is varied to make the costs on the motion before the Master payable by the plaintiff to the proposed defendants, fixed in the amount of $5,500.

[9] Costs of this appeal are payable to the respondents, fixed in the amount of $2,500 all-inclusive.

“R. Armstrong J.A.”

“G. J. Epstein J.A.”

“A. Karakatsanis J.A”