COURT OF APPEAL FOR ONTARIO

CITATION: Patterson v. Ontario (Transportation), 2014 ONCA 487

DATE: 20140624

DOCKET: C58151

Sharpe, Gillese and Hourigan JJ.A.

BETWEEN

Donald Patterson, Donna Patterson, Gregory Patterson and Shawn Patterson

Plaintiffs (Respondents)

and

Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, R.M. Belanger Limited, Daniel Louis Gagnon, Lise St. Denise, Liberty Mutual Insurance Company c.o.b. as Liberty International Canada, Daimler Chrysler Financial Services Canada Inc. c.o.b. as Daimler Chrysler Truck Financial, Daimler Chrysler Financial Services Canada Inc. and Chrysler Financial Canada Inc.

Defendants (Appellants)

DOCKET: C58152

BETWEEN

Gerald Cantin and Louise Cantin

Plaintiffs (Respondents)

and

Her Majesty the Queen in right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, R.M. Belanger Limited, Daniel Louis Gagnon, Lise St. Denise, Tracy Patterson, Executrix of the Estate of Scott Patterson, Deceased, Labatt Brewing Company Limited, Daimler Chrysler Services Canada Inc., Daimler Chrysler Financial Services Canada Inc. and Chrysler Financial Services Canada Inc.

Defendants (Appellants)

DOCKET: C58154

BETWEEN

William Patterson and Taylor Patterson, by their Litigation Guardian Tracy Patterson and Tracy Patterson, in her personal capacity

Plaintiffs (Respondents)

and

Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, R.M. Belanger Limited, Daniel Louis Gagnon and Lise St. Denise, Daimler Chrysler Services Canada Inc., Daimler Chrysler Financial Services Canada Inc. and Liberty International Canada

Defendants (Appellants)

DOCKET: C58155

BETWEEN

John McClelland and Rayna Bethune

Plaintiffs (Respondents)

and

Farquhar Plymouth Chrysler Ltd., Daimler Chrysler Services Canada Inc., and Daimler Chrysler Financial Services Canada Inc. c.o.b. as Chrysler Truck Financial

Defendants (Appellants)

Bruce R. Mitchell, for the appellants Daimler Chrysler

William G. Scott, for William Patterson and Taylor Patterson, by their Litigation Guardian Tracy Patterson and Tracy Patterson, in her personal capacity

Sean Dewart, for Donald Patterson, Donna Patterson, Gregory Patterson and Shawn Patterson

James D. Wilson, for Lise St. Denis

B. Robin Moodie, for John McClelland and Rayna Bethune, and Gerald Cantin and Louise Cantin

Heard and released orally: June 19, 2014

On appeal from the judgment of Justice Wendy M. Matheson of the Superior Court of Justice, dated December 3, 2013.

ENDORSEMENT

[1] These appeals arise out of four actions brought in relation to a serious multi-car accident. The police accident report showed the defendant Daniel Louis Gagnon as the driver and owner of the vehicle that allegedly crossed into the opposite lane and thereby caused the accident resulting in serious personal injury and a fatality. Relying on that report, the plaintiffs named Daniel Gagnon as the owner and driver in their statements of claim. In his statements of defence, Gagnon admitted that he was the owner and driver. In fact, the Gagnon vehicle was leased and the legal owner was the appellant Daimler Chrysler. The solicitors for the plaintiffs only discovered that fact at discovery more than two years after the accident whereupon they took steps to add the appellant as a party defendant. The appellant then moved for summary judgment dismissing the actions against it on the grounds that the actions were statute barred.

[2] The motion judge gave careful and comprehensive reasons concluding that, with respect to the actions governed by the Limitations Act, the plaintiffs did not have actual knowledge of the correct identity of the owner of the Gagnon vehicle until examination for discovery, and that they had shown reasonable diligence sufficient to satisfy the discoverability principle so that the action was not statute barred.

[3] With respect to the claims governed by the Trustee Act, she concluded that the appellants had suffered no prejudice and that there were "special circumstances" sufficient to justify allowing the claims to proceed despite the fact that they were brought more than two years after the date of the deceased.

[4] The appellant submits that the motion judge erred as to discoverability as the solicitors for the plaintiffs failed to conduct a "Plate/VIN By Date" search.

[5] We disagree. As the motion judge observed, in the light of recent case law, plaintiffs' counsel ought not to rely on police accident reports for ownership information. However, we cannot accept the appellant's contention that we can or should lay down an iron-clad rule to the effect that failure to conduct such a search is fatal on the issue of discoverability in the light of the decision of this court in Velasco v. North York Chevrolet Oldsmobile Ltd., 2011 ONCA 522.

[6] In our view, the motion judge properly took into account all the circumstances relevant to the issue of discoverability in a manner consistent with the approach in Velasco. We see no error in her reasons and accordingly dismiss those appeals.

[7] Nor do we accept the appellants' submission that the motion judge erred with respect to the special circumstances test applicable to the claims governed by the Trustee Act. In those actions, the solicitor had done the "Plate/VIN By Date" search, but he failed to read it. Here again, the motion judge gave careful reasons explaining why the appellant had suffered no prejudice and that there were special circumstances sufficient to allow the claim to proceed. The appellant knew of the accident shortly after it occurred. The appellant was insured by the same insurer as the driver and had the benefit of its insurer's investigation of the circumstances of the accident. The decision as to special circumstances was discretionary and we see no error of fact or law that could justify appellate interference with the conclusion reached by the motion judge.

[8] Accordingly the appeals are dismissed.

[9] Costs to the respondents fixed at $20,000 inclusive of all applicable taxes and disbursements.

"Robert J. Sharpe J.A."

"E.E. Gillese J.A."

"C.W. Hourigan J.A."