Court of Appeal for Ontario

Citation: Arcari v. Dawson, 2016 ONCA 715 Date: 2016-09-30 Docket: C61273

Before: Hoy A.C.J.O., Lauwers and Benotto JJ.A.

Between: Lynda Arcari (Appellant) and John A. Dawson (Respondent)

Counsel: Glenn Bogue, for the appellant Dawn Phillips-Brown, for City of Kitchener and Region of Waterloo

Heard: September 15, 2016

On appeal from the order of Justice Sloan of the Superior Court of Justice, dated October 2, 2015.

Endorsement

[1] The appellant, Lynda Arcari, was injured when she was struck by a vehicle as she crossed the street. She sued the driver of the vehicle. She moved to add the respondents, the City of Kitchener and the Regional Municipality of Waterloo, as defendants to the action. The motion judge dismissed her motion on the basis that her claim against the respondents was statute-barred. She appeals, and also seeks leave to appeal the motion judge’s costs disposition.

[2] For the reasons that follow, we dismiss the appeal of the motion judge’s order dismissing the appellant’s motion to add the respondents, but grant leave to appeal the costs disposition, allow the appeal as to costs, and fix costs of the motion below at $10,500, inclusive of HST and disbursements.

Background

[3] On December 2, 2009, a car struck the appellant, Lynda Arcari, as she crossed the street in front of a hospital in the City of Kitchener, beside a crosswalk. The appellant’s original lawyer hired an accident reconstruction expert to produce a report about the cause of the accident. This engineer found that the driver’s speed caused the accident. The appellant sued the driver in December of 2010 and her action was set to go to trial in September 2015.

[4] However, the appellant hired a new lawyer. When he attended at the accident scene, it was “obvious” to him, given what he asserted in oral argument to be his unique professional experience, that the design and safety features (or lack thereof) at the crosswalk were contributing factors to the 2009 accident. The appellant accordingly moved to add the respondents, the City of Kitchener and the Regional Municipality of Waterloo, as defendants.

[5] The motion judge observed that the appellant’s expert “attended at the accident scene within one year where all of the design features or deficiencies were there to be seen, noted and reported on.” The motion judge found that the respondents’ alleged negligence “was as close to within the “actual knowledge” of the [appellant’s] lawyer and engineer as it can come”. In his view, it was not a case in which discoverability and due diligence could play a role in extending the limitation period. He concluded that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries. He awarded the respondents costs, calculated on a substantial indemnity scale, in the amount of $14,000.

The Legal Context

[6] Before addressing the appellant’s arguments on appeal, it is useful to briefly set out the legislative and jurisprudential framework.

[7] Pursuant to s. 21 of the Limitations Act, S.O. 2002, c. 24, Schedule B, the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action: Joseph v. Paramount Canada’s Wonderland, 2008 ONCS 469, at paras. 26-28. Subject to the statutory exceptions from the general rule, none of which are at issue in this case, that bar arises immediately after the second anniversary of the day the claim was discovered (s. 4).

[8] Section 5 of the Limitations Act, 2002, provides as follows:

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). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(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. 2002, c. 24, Sched. B, s. 5 (2).

[9] When a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of the matters described in clause 5(1)(a) is a question of fact: Lima v. Moya, 2015 ONSC 324, at para. 76, aff’d on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.

[10] When a plaintiff’s motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff’s motion (Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

The Appellant’s Position Regarding the Discoverability Issue

[11] The appellant argues that the motion judge erred in concluding that she ought to have known that an act or omission of the respondents contributed to her injuries. She submits that she has a reasonable explanation as to why she could not have discovered her claim against the respondents through the exercise of reasonable diligence. She hired an expert engineer who did not identify the respondents as having contributed to her injuries. Counsel argues that hiring the engineer was sufficient due diligence to postpone the limitation date. He does not suggest that her expert was negligent. Rather, counsel says that the issue was so complex that that it was not even obvious to the engineer, although it was to him.

[12] In her factum (but not in her oral submissions), the appellant further argues that the motion judge failed to take into account the full extent of her injury in assessing discoverability.

Analysis

[13] We reject these arguments.

[14] There is no basis to interfere with the motion judge’s finding of fact that the appellant ought to have known that an act or omission of one of the respondents had contributed to her injuries. As we have indicated, counsel’s submission was that it was “obvious” to him when he attended the site in 2015, again, given his unique experience, that the design and safety features (or lack thereof) at the crosswalk were contributing factors to the 2009 accident. He submits that the issue was so complex that it was not even obvious to the engineer, although it was to him upon a site visit following the accident.

[15] There is no evidence to support this submission, such as evidence from the engineer explaining why the issue was not clear to him. As is stated in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham, Ont.: LexisNexis, 2014), at para. 2.284: “it is incumbent upon the plaintiff to lead some evidence of the steps he or she took to ascertain the identity of the responsible party and provide some explanation as to why the information was not obtainable with due diligence before the expiry of the limitations period.” We also reject the appellant’s submission that merely retaining an engineer was sufficient to discharge the due diligence responsibility and postpone the limitation period indefinitely.

[16] The appellant raised no credibility issue or issue of fact relevant to discoverability that would merit consideration on a summary judgment motion or at trial.

[17] Although a motion to add defendants is not a motion for summary judgment, the goal of “a fair process that results in just adjudication of disputes” that is “proportionate, timely and affordable” is relevant in this context as well: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. It may well be that this court should interpret Pepper in light of Hryniak and re-evaluate the suggestion that Pepper sets a strong default rule in favour of committing the issue of discoverability to trial. We leave that matter for another day.

[18] The motion judge did not err by not considering the full extent of the appellant’s injury in assessing discoverability. In 2010, the appellant commenced her action against the driver, claiming significant injuries to her neck and shoulder. Further, she pleaded impairment of her ability to work. It is clear that, at that time, she understood that she had damages warranting a lawsuit and that her injuries did not impair her ability to appreciate the matters referred to in s. 5(1)(a). The fact that she later discovered that her injuries were more extensive did not extend the limitation period against the respondents.

Costs Below

[19] The motion judge awarded the respondents costs on a substantial indemnity scale throughout. The respondents concede that the appellant did not engage in conduct warranting an award of costs against her on a substantial indemnity scale. Therefore, we grant leave to and allow the appellant’s appeal on costs. The respondents are entitled to costs on a substantial indemnity scale only from the date of their settlement offer.

Disposition

[20] We dismiss the appeal of the motion judge’s order dismissing the appellant’s motion to add the respondents, but grant leave to appeal the costs disposition, allow the appeal as to costs, and reduce the costs of the motion below awarded by the motion judge to $10,500, inclusive of HST and disbursements. The respondent shall be entitled to costs of the appeal, fixed in the amount of $5,500, inclusive of HST and disbursements.

“Hoy A.C.J.O.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”