Azzeh (Represented by his Litigation Guardian, Dion) v. Legendre et al.; Neville, Third Party

[Indexed as: Azzeh (Litigation Guardian of) v. Legendre]

Ontario Reports

Court of Appeal for Ontario

Weiler, Benotto and L.B. Roberts JJ.A.

May 12, 2017

135 O.R. (3d) 721 | 2017 ONCA 385

Case Summary

Limitations — Minors — Minor plaintiff not represented by litigation guardian in relation to claim for purposes of s. 6 of Limitations Act when his mother entered into contingency fee agreement with lawyers on his behalf or when she signed application for statutory accident benefits as his "guardian" — Plaintiff represented by litigation guardian when his mother commenced action against non-municipal defendants on his behalf — Motion to add municipality as defendant brought less than two years after that date and not statute-barred — Limitations Act, 2002, S.O. 2002, c. 24, s. 6.

Municipal Law — Actions against municipality — Notice — Minor plaintiff injured in motor vehicle accident — Plaintiff's mother commencing action on his behalf against non-municipal defendants as his litigation guardian in June 2014 but not filing affidavit required by rule 7.02(2) of Rules of Civil Procedure — Mother not giving notice to municipality of any claim against it — Plaintiff's grandmother swearing affidavit as litigation guardian in May 2015 and giving notice to municipality of claim against it less than ten days later — Ten-day notice period in s. 44 of Municipal Act beginning to run when plaintiff first had litigation guardian in June 2014 — Plaintiff's mother not having reasonable excuse for failure to give notice within ten days of accident — Claim against municipality barred — Municipal Act, 2001, S.O. 2001, c. 25, s. 44 — Rules of Civil Procedure, R.R.O. Reg. 194, rule 7.02(2).

Facts

The minor plaintiff was catastrophically injured in a motor vehicle accident in September 2007. His mother, N, who was driving the car in which the plaintiff was a passenger, signed a contingency fee agreement with a law firm on the plaintiff's behalf and made an application for statutory accident benefits for the plaintiff, signing the form as his "guardian". In June 2014, N commenced an action against the owner and driver of the other vehicle on the plaintiff's behalf, ostensibly as his litigation guardian. However, she failed to file the affidavit which a litigation guardian is required to file under rule 7.02(2) of the Rules of Civil Procedure. At no time did she give notice to the city of any potential claim against it. The plaintiff changed lawyers and in May 2015, his grandmother D swore an affidavit as his litigation guardian. Less than ten days after doing so, D gave notice to the city under s. 44(10) of the Municipal Act, 2001. The plaintiff moved for an order adding the municipality as a defendant in September 2015. The city opposed the motion on the basis that the two-year limitation period in the Limitations Act, 2002 and the ten-day notice in s. 44(10) of the Municipal Act, 2001 had expired. The motion was granted. The city appealed.

Held, the appeal should be allowed.

Per Weiler J.A. (Benotto J.A. concurring): The motion judge did not err in holding that the two-year limitation period in the Limitations Act, 2002 did not bar the claim against the city. The plaintiff was not "represented by a litigation guardian in relation to the claim" for the purposes of s. 6 of the Limitations Act, 2002 when M entered into the contingency fee agreement on his behalf or made a claim for statutory accident benefits for him. He was "represented by a litigation guardian" when M commenced the action in June 2014. M held herself out as the plaintiff's litigation guardian. The fact that she did not file the required affidavit made the proceeding an irregularity, not a nullity. To allow the limitation period to be tolled simply because the person holding herself out as the litigation guardian had not filed the required affidavit would effectively make the limitation period unlimited because the litigation guardian could indefinitely delay filing the affidavit. The limitation period started to run in June 2014. The motion to add the city as a defendant was brought less than two years later.

The ten-day notice period in s. 44(10) of the Municipality Act, 2001 did not begin to run until the plaintiff had a litigation guardian. Alternatively, the plaintiff had a reasonable excuse for not bringing the action until he had a litigation guardian. Once N issued the statement of claim on the plaintiff's behalf in June 2014, time began to run and the motion judge erred in holding that it did not run because N failed to file the required affidavit under rule 7.02(2). N did not have a reasonable excuse for failing to give notice to the municipality within ten days. The claim against the municipality was barred under s. 44(10) of the Municipal Act, 2001.

Per L.B. Roberts J.A. (dissenting in part): The motion judge erred in making a final determination with respect to the limitation period and notice period issues on a pleadings motion brought under rules 26.01 and 5.04(2) of the Rules of Civil Procedure. The plaintiff had met the low onus placed on him on a motion to amend a pleading. The motion judge did not otherwise err in the exercise of her discretion by adding the municipality as a defendant. The limitation and notice period issues raised by the municipality ought to be left for final determination on a motion for that purpose or at trial.

Cases Referred To

614128 Ontario Ltd. (c.o.b. Trisan Construction) v. Bianchi, [2016] O.J. No. 1819, 2016 ONSC 2450 (S.C.J.); Argue v. Tay (Township), [2013] O.J. No. 1787, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, 227 A.C.W.S. (3d) 1172, affg [2012] O.J. No. 3776, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77 (S.C.J.) [Leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 246]; Ball v. Donais (1993), 13 O.R. (3d) 322, [1993] O.J. No. 972, 64 O.A.C. 85, 45 M.V.R. (2d) 319, 40 A.C.W.S. (3d) 1031 (C.A.); Bates v. Ewachniuk, [2001] B.C.J. No. 92, 2001 BCSC 71, 102 A.C.W.S. (3d) 437; Bourassa v. Temiskaming Shores (City), [2016] O.J. No. 805, 2016 ONSC 1211, 49 M.P.L.R. (5th) 226, 263 A.C.W.S. (3d) 766 (S.C.J.); Bramer v. Hamilton (City), [2015] O.J. No. 2579, 2015 ONSC 713, 40 M.P.L.R. (5th) 150, 254 A.C.W.S. (3d) 463 (S.C.J.); Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284, [2002] O.J. No. 4688, 29 C.P.C. (5th) 49 (C.A.); Crinson v. Toronto (City) (2010), 100 O.R. (3d) 366, [2010] O.J. No. 216, 2010 ONCA 44, 257 O.A.C. 359, 64 M.P.L.R. (4th) 159, 316 D.L.R. (4th) 145, 185 A.C.W.S. (3d) 220; Delahaye v. Toronto (City), [2011] O.J. No. 4006, 2011 ONSC 5031, 87 M.P.L.R. (4th) 100, 206 A.C.W.S. (3d) 718 (S.C.J.); Durbin v. Monserat Investments Ltd. (1978), 20 O.R. (2d) 181, [1978] O.J. No. 3414, 87 D.L.R. (3d) 593, 5 R.P.R. 15 (C.A.); Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd. (2016), 131 O.R. (3d) 455, [2016] O.J. No. 2791, 2016 ONCA 404; Fremeau v. Toronto (City), [2009] O.J. No. 2391, 61 M.P.L.R. (4th) 279, 178 A.C.W.S. (3d) 249 (S.C.J.); Gauthier v. Gauthier, [1947] O.J. No. 342, O.W.N. 1053 (H.C.J.); Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., [2009] O.J. No. 611, 2009 CarswellOnt 748 (S.C.J.); Hunter v. Richardson, [2013] O.J. No. 5896, 2013 ONCA 731; Jarbeau v. McLean, [2017] O.J. No. 717, 2017 ONCA 115, 60 C.L.R. (4th) 177, 35 C.C.L.T. (4th) 171, 275 A.C.W.S. (3d) 432; Lax v. Lax (2004), 70 O.R. (3d) 520, [2004] O.J. No. 1700, 239 D.L.R. (4th) 683, 186 O.A.C. 20, 50 C.P.C. (5th) 266, 3 R.F.L. (6th) 387, 130 A.C.W.S. (3d) 850 (C.A.); Lucas v. Coupal (1930), 66 O.L.R. 141, [1930] O.J. No. 20, [1931] 1 D.L.R. 391 (H.C.J.); Merling v. Southam Inc., [2000] O.J. No. 123, 183 D.L.R. (4th) 748, 128 O.A.C. 261, 49 C.C.L.T. (2d) 247, 42 C.P.C. (4th) 26, 94 A.C.W.S. (3d) 368 (C.A.); Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc. (2012), 113 O.R. (3d) 673, [2012] O.J. No. 5682, 2012 ONCA 850, 298 O.A.C. 157, 16 C.L.R. (4th) 4, 25 R.P.R. (5th) 169; Montreal (City) v. Vaillancourt, [1977] 2 S.C.R. 849, [1976] S.C.J. No. 96, 10 N.R. 361; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 125 D.L.R. (4th) 385, 183 N.R. 325, J.E. 95-1497, 82 O.A.C. 243, 99 C.C.C. (3d) 97, 17 C.E.L.R. (N.S.) 129, 41 C.R. (4th) 147, 30 C.R.R. (2d) 252, EYB 1995-67436, 27 W.C.B. (2d) 485; Ontario (Minister of Highways) v. Jennings, [1966] S.C.R. 532, [1966] S.C.J. No. 31, 57 D.L.R. (2d) 644; Patrick v. Southwest Middlesex (Municipality), [2017] O.J. No. 7, 2017 ONSC 17, 60 M.P.L.R. (5th) 267, 274 A.C.W.S. (3d) 418 (S.C.J.); Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648, [2006] O.J. No. 5042, 278 D.L.R. (4th) 175, 39 C.P.C. (6th) 81, 154 A.C.W.S. (3d) 336 (C.A.); Poulin v. Nadon, [1950] O.R. 219, [1950] O.J. No. 433, [1950] 2 D.L.R. 303 (C.A.); R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, 2001 SCC 56, 203 D.L.R. (4th) 513, 275 N.R. 201, J.E. 2001-1823, 206 Nfld. & P.E.I.R. 304, 157 C.C.C. (3d) 353, 45 C.R. (5th) 1, REJB 2001-25833, 51 W.C.B. (2d) 180; Salisbury v. Sun Life Assurance Co. of Canada, [2013] O.J. No. 1310, 2013 ONCA 182; Seif v. Toronto (City) (2015), 125 O.R. (3d) 481, [2015] O.J. No. 2458, 2015 ONCA 321, 74 C.P.C. (7th) 74, 334 O.A.C. 339, 36 M.P.L.R. (5th) 18, 253 A.C.W.S. (3d) 952; Socha v. Peninsula Towing & Recovery Inc. (2015), 127 O.R. (3d) 57, [2015] O.J. No. 4517, 2015 ONSC 5076 (S.C.J.); Tran v. University of Western Ontario, [2016] O.J. No. 6645, 2016 ONCA 978; Vescio v. Peterman (1999), 45 O.R. (3d) 613, [1999] O.J. No. 4039, 127 O.A.C. 60, 47 M.V.R. (3d) 89, 92 A.C.W.S. (3d) 131 (C.A.)

Statutes Referred To

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 6, 8, 12(2)

Municipal Act, R.S.B.C. 1979, c. 290 [rep.]

Municipal Act, 2001, S.O. 2001, c. 25, s. 44 [as am.], (10), (12) [as am.]

Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as am.]

Rules and Regulations Referred To

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04(2), 7.02(2), (g), 7.03(10) (i)(iii), 7.05(1), (2), (3), 15.01(1), 21.01(1)(a), (b), 26.01

Authorities Referred To

Halsbury's Laws of Canada, "Negligence and other Torts" (Toronto: LexisNexis, 2016 Reissue)

Sullivan, Ruth, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016)

APPEAL

Appeal by the city from the order of Hennessy J., [2016] O.J. No. 3619, 2016 ONSC 3937, 52 M.P.L.R. (5th) 173 (S.C.J.) amending pleadings to add the city as a defendant, and supplementary reasons dated July 14, 2016.

Stuart Zacharias and Nadia Marotta, for appellant City of Greater Sudbury.

Gary Mazin, Supryia Sharma, Iman Ahsan and Herman Tse, for respondent Bayden Zachary Azzeh.

William G. Scott, for proposed defendant Wallbridge, Wallbridge.

WEILER J.A. (BENOTTO J.A. concurring):

A. Overview

[1] Bayden Azzeh suffered brain injuries in a car accident in Sudbury on September 7, 2007. Bayden was 17 days old. His mother, Julia Neville, was driving the car. In 2014, Neville issued a statement of claim on Bayden's behalf. The claim named the driver and the owner of the other vehicle involved in the accident as defendants.

[2] In 2015, Bayden's lawyers brought a motion to amend the pleadings to add the City of Sudbury, among others, as a defendant and to increase the amount of damages sought. The city unsuccessfully opposed the motion on two grounds: first, the claim against the city was statute-barred, as the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B had elapsed; and second, the claim was barred because Bayden failed to give the city notice within ten days of the accident, as required under s. 44(10) of the Municipal Act, 2001, S.O. 2001, c. 25.

[3] The city now appeals to this court.

[4] For the reasons that follow, I would dismiss the city's first ground of appeal and give effect to the second. Accordingly, I would allow the appeal, set aside the motion judge's order and order that the claim against the city be dismissed.

B. Background Facts

[5] Bayden and Neville were both injured in the car accident on September 7, 2007. After the accident, Neville retained the firm of Wallbridge, Wallbridge to act on her and Bayden's behalf. The contingency fee agreement is for both mother and son from the same accident.

[6] Wallbridge issued a statement of claim on Neville's behalf in April 2008, and that claim was settled in August 2011. In October 2011, Neville made an application for statutory accident benefits for her son and signed the application as his "guardian".

[7] In June 2014, Wallbridge issued a statement of claim only against the driver and the owner of the other car, Roger Legendre and Susan Legendre, respectively. The claim was styled as follows:

Bayden Azzeh

(represented by his Litigation Guardian, JULIA NEVILLE)

[8] Rule 7.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 addresses the procedure applicable when a person brings a claim on behalf of a plaintiff with a disability. Rule 7.02(2) states:

7.02(2) No person except the Children's Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,

(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.

[9] Julia Neville did not swear the affidavit required to be sworn by a litigation guardian as required by rule 7.02(2).¹

[10] On May 25, 2015, Bayden changed lawyers to Mazin and Associates. Ingrid Nancy Dion, Bayden's grandmother, swore an affidavit as litigation guardian on May 29, 2015. On May 31, 2015, seven years after the accident, she gave notice to the city of a potential claim against it. On October 30, 2015, a court order named Dion as Bayden's litigation guardian. Bayden then moved to amend his statement of claim to increase the amount of damages sought and to add multiple defendants. He sought to add his previous counsel (individually and as a firm); his parents (Julia Neville, who was driving the car, and Ihab Azzeh, who owned it); and the city, which was responsible for the intersection where the accident had taken place. The city opposed the motion on the basis that the two-year limitation period and the ten-day period for giving notice to the city had expired.

C. The Motion Judge's Decision

[11] The motion judge held that there was no prejudice to the city caused by adding it as a party to the action, as Bayden's claim was about road design issues, not maintenance or inspection. The city had destroyed its maintenance records, but not its road design records.

[12] The motion judge rejected the city's submission that the action against it was statute-barred. Under s. 6 of the Limitations Act, 2002, the limitation period does not begin to run on the claim of a minor until the minor is "represented by a litigation guardian in relation to the claim". The motion judge found that Bayden was not represented by a litigation guardian until June 11, 2014 at the earliest (when the statement of claim was issued on behalf of Bayden against the driver and the owner of the car), so that is when the two-year limitation period under the Limitations Act, 2002 began to run. Bayden had filed his motion within this period, and the action against the city was therefore not statute-barred.

[13] The city also argued that Bayden's claim against it was barred by the Municipal Act, 2001. Under s. 44(10), no action shall be brought against a municipality for failure to keep a highway in a reasonable state of repair unless notice is given to the municipality within ten days of the occurrence of the injury. Under s. 44(12), lack of notice is no bar if there is a reasonable excuse and no prejudice to the municipality.

[14] The motion judge held that the notice period under the Municipal Act, 2001 also did not run while Bayden was not represented by a litigation guardian. She then held that there was no evidence Neville had been appointed to do anything other than bring a claim against the named defendants; Neville was not obliged to consider other claims, for example, against the city. Therefore, the ten-day notice period did not run during Neville's appointment. The affidavit of appointment for Dion, however, granted broad authority to "act in this action". The motion judge held that the ten-day notice period therefore began to run with Dion's appointment. Dion had given timely notice to the city, so the notice requirement was satisfied. In the alternative, the motion judge noted that Bayden's being a minor was a reasonable excuse under s. 44(12) of the Municipal Act, 2001.

[15] On July 14, 2016, the motion judge issued supplementary reasons in response to an inquiry from counsel for the city as to whether she intended to make final determinations with respect to whether Bayden's claim against the city was barred by the Limitations Act, 2002 or the Municipal Act, 2001. As no order had yet been taken out, the motion judge held that she still had jurisdiction to entertain counsel's request for clarification. In effect, she held that her order was final.

[16] The order issued and taken out on July 14, 2016 goes beyond amending the statement of claim to add the city as a party and increasing the prayer for relief. It grants declaratory relief and states:

THIS COURT ORDERS AND DECLARES that the Plaintiff's proposed claim, in the form attached here as Schedule "A", is not barred by either the Limitations Act, 2002 or the Municipal Act, 2001.

D. Positions of the Parties

[17] On appeal, the city's primary argument is that the motion judge erred in holding that the claim against it was not statute-barred. It submits that, under the Limitations Act, 2002, a minor is represented in relation to a claim as soon as someone takes steps on the minor's behalf in relation to the claim, not when a statement of claim is issued. The city submits that Bayden was represented far earlier than 2014. Neville was representing him when she signed the contingency fee agreement with the law firm Wallbridge and when she signed the application for statutory accident benefits on Bayden's behalf. The limitation period had therefore expired by the time of this motion.

[18] The city also argues that the motion judge erred in failing to apply a discoverability analysis. Section 8 of the Limitations Act, 2002 provides that the limitation period begins to run against a minor when the litigation guardian knew or ought to have known sufficient facts on which to base allegations against a potential defendant.

[19] Finally, the city argues the ten-day notice period under the Municipal Act, 2001 began, at the latest, in June 2014 when Wallbridge issued a statement of claim in which Neville held herself out as Bayden's litigation guardian; there is no basis for finding that it began only when Dion was appointed as litigation guardian. Bayden was represented by counsel, so there was no reasonable excuse for the delay.

[20] Bayden and Wallbridge argue that a minor is not represented in relation to a claim until the representative has complied with the requirements of rule 7.02(2) of the Rules of Civil Procedure by swearing an affidavit consenting to act as litigation guardian. Because there is no evidence that Neville filed the affidavit required by rule 7.02(2), they argue she was not Bayden's litigation guardian at all. Bayden was not represented by a litigation guardian until Dion was appointed in 2015. Neither the limitation period nor the notice period began to run until that time. In the alternative, they argue Bayden has a reasonable excuse for not giving notice within the ten days required under the Municipal Act, 2001, as he was a minor.

E. Issues

(1) Did the motion judge err in finding that the two-year limitation period under the Limitations Act, 2002 did not bar the claim against the city?

(2) Did the motion judge err in finding that notice had been given to the city within the ten-day period set out in s. 44 of the Municipal Act, 2001?

(3) Did the motion judge err in finding that there was no prejudice to the city?

F. Jurisdiction

[21] Before turning to the issues on appeal, a few comments respecting jurisdiction must be made.

[22] Paragraph 1 of the order appealed from grants leave to amend the statement of claim to add the city and others as defendants. Granting leave to add party defendants is interlocutory: Hunter v. Richardson, [2013] O.J. No. 5896, 2013 ONCA 731.

[23] Paragraph 2 of the order grants leave to increase the prayer for relief and make other amendments consistent with the addition of the defendants. Paragraph 2 is also an interlocutory order: Merling v. Southam Inc., [2000] O.J. No. 123, 128 O.A.C. 261 (C.A.).

[24] The declaration that the action is not statute-barred, in para. 3 of the order, deprives the defendants of substantive defences and is therefore final: Ball v. Donais (1993), 13 O.R. (3d) 322, [1993] O.J. No. 972 (C.A.).

[25] In general, where an order has both final and interlocutory aspects, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284, [2002] O.J. No. 4688 (C.A.). Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point the appellant may move to have the appeals heard together in this court.

[26] However, in Lax v. Lax (2004), 70 O.R. (3d) 520, [2004] O.J. No. 1700 (C.A.), the court heard the appeal from both the final and interlocutory aspects of an order where [at para. 9] "because the two issues are so interrelated . . . once the first issue was before this court, leave would inevitably have been granted on the second". That is the case here. Whether the city was properly added as a defendant depends on whether the action against it is statute-barred. Therefore, both aspects of the appeal were heard by this court.

[27] I would just add that having regard to Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd. (2016), 131 O.R. (3d) 455, [2016] O.J. No. 2791, 2016 ONCA 404, the motion judge did not have the power to make a final order on the motion to amend the pleading.

G. Relevant Statutory Provisions

(1) Limitations Act, 2002

Section 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Section 6. The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in relation to the claim.

Section 8. If a person is represented by a litigation guardian in relation to the claim, section 5 [relating to discoverability of the claim] applies as if the litigation guardian were the person with the claim.

(2) Municipal Act, 2001

Section 44(1). The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

Section 44(2). A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

Section 44(10). No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or

(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.

Section 44(11). Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.

Section 44(12). Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

H. Analysis

(1) Did the motion judge err in finding that the two-year limitation period in the Limitations Act, 2002 did not bar the claim against the city?

[28] The motion judge held that Bayden was not represented by a litigation guardian until June 11, 2014 at the earliest, and that is when the two-year limitation period began to run. I would agree with her.

[29] On appeal, the city's primary argument is that the motion judge erred in finding that the claim against it was not statute-barred under the Limitations Act, 2002. The city submits a minor is represented in relation to a claim as soon as someone takes steps on the minor's behalf in relation to the claim, not when a statement of claim is issued. Neville was representing Bayden when she signed the contingency fee agreement or, in any event, when she signed the application for statutory accident benefits in 2011. Neville knew, or ought to have known, of the claims against the city in 2011 at the latest. Thus, the city submits the limitation period had expired by the time this motion was brought.

[30] I would reject the city's submission. The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made. Where the person with a claim is a minor, the Act requires that the minor be "represented by a litigation guardian in relation to the claim". The word "represented" signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do (rule 7.05(1)).² Where the litigation guardian enters into a solicitor and client relationship, the solicitor is the agent of the litigation guardian. The solicitor owes a fiduciary duty to the litigation guardian and acts on her behalf. The solicitor is therefore an extension of the litigation guardian -- they are one and the same and allied in interest. This conclusion is supported by the requirement in rules 7.05(3) and 15.01(1) of the Rules of Civil Procedure that a litigation guardian other than the Children's Lawyer or the Public Guardian and Trustee must be represented by a lawyer.

[31] Thus, Neville's contingency fee agreement with Wallbridge did not result in Bayden being "represented by a litigation guardian in relation to the claim". At that time, there had been no "representation" on behalf of Neville to anyone other than her solicitor.

[32] In relation to the statutory accident benefits application, Neville simply signed as "guardian", not as litigation guardian. She could equally have been signing as Bayden's substitute decision-maker or guardian under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, or using the word "guardian" colloquially, as she is Bayden's mother.

[33] I would also reject Bayden and Wallbridge's position that Bayden was "not represented by a litigation guardian in relation to the claim" when the statement of claim against the Legendre defendants was issued in June 2014.

[34] Neville clearly held herself out or represented herself as Bayden's litigation guardian to the Legendre defendants, who were the driver of the car and the owner of the car with whom she was involved in the accident. The fact that Neville did not file the affidavit a litigation guardian is required to file under rule 7.02(2) makes the proceeding an irregularity and not a nullity: Gauthier v. Gauthier, [1947] O.J. No. 342, O.W.N. 1053 (H.C.J.); see, also, Salisbury v. Sun Life Assurance Co. of Canada, [2013] O.J. No. 1310, 2013 ONCA 182. It would not make sense for the limitation period to be tolled simply because the person holding herself out as the litigation guardian had not filed the required affidavit under the Rules. It is within the litigation guardian's power to file the affidavit or not. To allow the limitation period to toll on that basis would effectively make the limitation period unlimited because the litigation guardian could indefinitely delay filing the affidavit.

[35] It appears Bayden may have both a claim against the Legendre defendants and a claim for negligence against Neville as the driver of the vehicle in which he was a passenger. Thus, Neville has a conflict of interest in relation to those potential claims. Any benefit gained by Bayden in having a litigation guardian act for him would be detrimental to Neville's case and vice versa. Neville could be forced to choose between her own interests and, as litigation guardian, those of Bayden. As a result, Neville has a conflict of interest that would bar her from acting as Bayden's litigation guardian in the context of his claims against the Legendre defendants and Neville herself (rules 7.02(2)(g) and 7.03(10)(i)(iii)).³

[36] However, Neville has no conflict of interest in relation to Bayden's claim against the city. Neville has no interest adverse to Bayden's having a litigation guardian act for him against the city. In that context, unlike in his claims against her and the Legendre defendants, Neville would not be forced to choose between her own interests and those of Bayden. There was therefore nothing preventing her from carrying out her duties as his litigation guardian. Neville's conflict of interest does not prevent the running of the two-year limitation period nor does it absolve her from discharging her responsibilities towards Bayden in his claim against the city. Further, Neville ought to have taken steps to have someone else act or be appointed as litigation guardian when the conflict in the other claims became apparent: see Socha v. Peninsula Towing & Recovery Inc. (2015), 127 O.R. (3d) 57, [2015] O.J. No. 4517, 2015 ONSC 5076 (S.C.J.), at para. 25.

[37] I would also reject the submission that Neville only represented herself as Bayden's litigation guardian to the Legendre defendants and that, as a result, time did not begin to run in respect of the claim against the city. The statement of claim is a public document. I also note that s. 6 of the Limitations Act, 2002 does not speak to representation in relation to specific defendants; the representation by a litigation guardian is "in relation to the claim". Time began to run under the Limitations Act, 2002 on June 11, 2014.

[38] The limitation period ended on June 11, 2016. Bayden filed his motion to add parties, including the city, on September 15, 2015. Thus, I would agree with the motion judge that the motion was not statute-barred under the Limitations Act, 2002.

(2) Did the motion judge err in her application of the Municipal Act, 2001?

[39] Section 44(10) of the Municipal Act, 2001 provides that no action shall be brought against a municipality for failure to keep a highway in a reasonable state of repair unless notice is given to the municipality within ten days of the occurrence of the injury. The notice requirement in s. 44(10) is similar in character to a limitation period, although it is not strictly speaking a limitation period: Patrick v. Southwest Middlesex (Municipality), [2017] O.J. No. 7, 2017 ONSC 17 (S.C.J.), at para. 81. However, under s. 44(12), the action is not barred if there is a reasonable excuse for not giving notice and the municipality is not prejudiced in its defence.

[40] I would hold that the ten-day notice period did not begin to run until Bayden had a litigation guardian or, alternatively, that he had a reasonable excuse for not bringing the action until he had a litigation guardian.⁴ However, as I have indicated above in discussing the Limitations Act, 2002 issue, once Neville issued the statement of claim on Bayden's behalf on June 11, 2014, time began to run and the motion judge erred in holding that it did not run because Neville failed to file the affidavit required under the Rules of Civil Procedure.

[41] I now turn to the motion judge's alternative holding that if Neville, as Bayden's litigation guardian, was required to give notice to the city, she had a reasonable excuse for not doing so because Bayden was a minor and the policy of the law is to protect minors.

[42] The plaintiff bears the onus of establishing a reasonable excuse: Argue v. Tay (Township), [2013] O.J. No. 1787, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 246. The words "reasonable excuse" are to be given a liberal interpretation because the municipality is protected by the requirement that it not be prejudiced in its defence.

[43] In determining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning, and the court should consider all of the circumstances: see Crinson, at paras. 20-23; and Seif, at paras. 26, 47. Those circumstances would include, among other things, whether the plaintiff was capable of forming the intention to sue the municipality within the notice period under s. 44(10), or had a representative whose responsibility it was to retain a lawyer and pursue all claims; the length of the delay before notice was given; and any explanation of the reason for the delay. Lack of awareness of the notice requirement, standing alone, does not constitute a reasonable excuse, but when considered in combination with other extenuating circumstances, a court may conclude a reasonable excuse exists: see Crinson, at para. 38; and Seif, at para. 29 (per Hoy A.C.J.O., partly in dissent but not on this point).

[44] Bayden had a representative -- Neville -- who was capable of forming the intention to sue the municipality within the notice period, and she had retained a lawyer to pursue claims on his behalf. It was improper for the motion judge to ignore the effect of that circumstance. A litigation guardian is the legal representative of the person under a disability and, pursuant to rule 7.05(2), "shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests". Further, as I have indicated above in relation to the limitation period issue, Neville had no conflict of interest with respect to any lawsuit brought by Bayden against the city. Indeed, the success of such an action would reduce or eliminate Neville's own liability. Thus, the motion judge erred in holding that Bayden's right to bring an action against the city needed further protection and that this provided a reasonable excuse for not giving timely notice to the city.

[45] The question before the motion judge was whether it was reasonable for Bayden, through his litigation guardian, not to have given notice until May 31, 2015 -- almost a year after the date that Bayden was first represented by a litigation guardian. The lengthy period of delay affects both the reasonableness of the excuse and whether the municipality is prejudiced. It is a circumstance the motion judge was required to consider: see Argue v. Tay (Township), [2012] O.J. No. 3776, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77 (S.C.J.), at para. 51, affd 2013 ONCA 247, [2013] O.J. No. 1787 (C.A.), supra, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 246, supra; and Bramer v. Hamilton (City), [2015] O.J. No. 2579, 2015 ONSC 713, 40 M.P.L.R. (5th) 150 (S.C.J.), at para. 101. She did not do so.

[46] There is nothing in the record to suggest that by the time Neville acted as Bayden's litigation guardian, on June 11, 2014, the extent of his injuries were unknown.

[47] The city asserts in its factum, at para. 18:

There is no evidence that, at any time during the retainer of Wallbridge, any steps were taken to investigate a potential claim against the City. As Ms. Neville, testified, "this never came up".

[48] Wallbridge's factum simply denies this paragraph.

[49] Even if we were to accept the city's assertion as a fact, it does not help Bayden. One possible explanation why suing the city never came up may be because, at the time, Neville made no complaint about the condition of the intersection as being a cause of the accident, and the city was not considered to be a proper defendant. On the other hand, if the city is a proper defendant, and Wallbridge, as the solicitor for the litigation guardian, either through ignorance or negligence failed to communicate the notice requirement to Neville and allowed the notice period to expire, then Wallbridge would likely have been negligent: see Halsbury's Laws of Canada, "Negligence and other Torts" (Toronto: LexisNexis Canada, 2016 Reissue), at HTO 95-96, and cases cited therein, including the statement that allowing the limitation period of a meritorious action to expire is solicitor's negligence. See, also, 614128 Ontario Ltd. (c.o.b. Trisan Construction) v. Bianchi, [2016] O.J. No. 1819, 2016 ONSC 2450 (S.C.J.), at para. 116; Bates v. Ewachniuk, [2001] B.C.J. No. 92, 2001 BCSC 71, in relation to the statutory notice period under the Municipal Act, R.S.B.C. 1979, c. 290; Bourassa v. Temiskaming Shores (City), [2016] O.J. No. 805, 2016 ONSC 1211, 49 M.P.L.R. (5th) 226 (S.C.J.), at para. 65; and, more generally, Jarbeau v. McLean, [2017] O.J. No. 717, 2017 ONCA 115, respecting suing a solicitor for "loss of a chance".

[50] The knowledge of an agent is ordinarily imputed to the principal because it is the duty of the agent to communicate that knowledge: Durbin v. Monserat Investments Ltd. (1978), 20 O.R. (2d) 181, [1978] O.J. No. 3414 (C.A.); and Vescio v. Peterman (1999), 45 O.R. (3d) 613, [1999] O.J. No. 4039 (C.A.). See, also, by analogy s. 12(2) of the Limitations Act, 2002, which states that a principal is deemed to have knowledge of any matter that an agent knew or ought to have known. As indicated above, even if solicitor's negligence were to be established, that circumstance alone would not suffice to extend the statutory notice period.

[51] In summary, Bayden had a litigation guardian, Neville; she had no conflict of interest in relation to suing the city, and she had a good reason to try to limit her own potential liability by suing the city. The law firm which she retained to pursue claims on Bayden's behalf, Wallbridge, did not sue the city. The only explanation in the record for not doing so is Neville's evidence that "this never came up".

[52] When there was a change of solicitors and a new litigation guardian, a motion was quickly brought to add the city as a party. However, almost a year had elapsed since the time Bayden first had a litigation guardian representing him. In all the circumstances, the notice to the city given by Bayden's current litigation guardian, Dion, was out of time, and there was no reasonable excuse for the delay.

[53] Having regard to my conclusion, it is not strictly necessary to deal with the issue of prejudice to the city for the purpose of disposing of this appeal. However, I will make some limited comments with a view to providing guidance in this regard.

[54] The motion judge held that although the city had destroyed its maintenance records due to the passage of time, there was no prejudice to the city caused by adding it as a party to the action because Bayden's claim was about road design issues, not maintenance or inspection. The city had not destroyed its road design records.

[55] I would respectfully disagree that Bayden's claim does not include maintenance or repair issues. In Ontario (Minister of Highways) v. Jennings, [1966] S.C.R. 532, [1966] S.C.J. No. 31, the Supreme Court held that a municipality's duty of repair includes erecting and maintaining proper signs. Bayden's statement of claim against the city includes claims of failure or neglect to have adequate signs and lighting at the intersection; failure to warn motorists of the lack of illumination; and a claim that the city "allowed the area to become an area of danger when they could have prevented same by the exercise of reasonable care and diligence, including modifications to the road and/or signs and/or lights". Just as the alleged failure to have proper signage is considered a repair issue, as it was in Jennings, so too it seems to me is a failure to have proper illumination. Thus, the claims against the city include claims for failing to keep the intersection in a reasonable state of repair.

[56] While the passage of time is also a consideration with respect to prejudice, there is some indication in the record that the signage and lighting of the intersection are basically unchanged since the date of the accident. As it is unnecessary for me to resolve the issue of prejudice, I do not propose to comment further.

I. Disposition

[57] Accordingly, I would allow the appeal, set aside the order of the motion judge and order that the claim against the city be and is hereby dismissed.

J. Costs

[58] The city is entitled to its costs against the respondent before the motion judge and before us. The costs of the appeal are fixed by agreement of counsel at $15,000, inclusive of disbursements and all applicable taxes.

L.B. ROBERTS J.A. (dissenting in part):

A. Overview

[59] I agree with my colleague's conclusion that the motion judge's order should be set aside. The respondent did not seek a declaration but only an interlocutory order to amend his pleadings, adding the city, among other parties, as a defendant.

[60] I respectfully disagree, however, with my colleague's conclusion that the question of whether the city ought to be added as defendant requires a final determination of the limitation period issue under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, or of the notice period issue under s. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25.

[61] As I shall explain, the respondent has met the low onus placed on him on a motion to amend a pleading. The motion judge did not otherwise err in the exercise of her discretion by adding the city as a defendant. The limitation and notice period issues raised by the city ought to be left for final determination on a motion for that purpose or at trial.

[62] Although I have determined that both the limitation and notice period issues should be left for future adjudication, I consider that the notice period issue is most obviously the one that ought to be decided on a fuller record after the exchange of pleadings. There is relatively limited jurisprudence as to what constitutes "reasonable excuse". Moreover, the determination of "reasonable excuse" is more fact specific and not as clearly defined as the provisions under the Limitations Act, 2002.

[63] Accordingly, I would allow the city's appeal to the extent that I would grant it leave to plead the limitation and notice period defences under the Limitations Act, 2002 and the Municipal Act, 2001. I would otherwise dismiss the city's appeal.

B. Analysis

[64] The motion judge erred in making a final determination with respect to the limitation and notice period issues under the Limitations Act, 2002 and the Municipal Act, 2001. This was a pleadings motion brought under rules 26.01 and 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This was not a motion to determine an issue of law before trial, nor was it a summary judgment motion. No declaratory relief was requested. There was no trial of an issue. There were, however, credibility and factual issues that should have been left for final determination on a summary judgment motion or at trial.

[65] On an amendment motion, the motion judge is not to decide the merits of the underlying action and proposed amendments: Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd. (2016), 131 O.R. (3d) 455, [2016] O.J. No. 2791, 2016 ONCA 404, at para. 36. As my colleague observes, an order adding a party defendant is ordinarily meant to be an interlocutory order that does not affect the parties' substantive rights, because the litigation continues: Fram, at para. 28.

[65] The motion judge's conclusion that the respondent's claim was not statute-barred by s. 4 of the Limitations Act, 2002, or s. 44(10) of the Municipal Act, 2001, was made in the context of an amendment motion. It was therefore an error for the motion judge to make a final determination of the limitation and notice period issues.

[67] In the present case, a rejection of the arguments put forward for not allowing the proposed amendments does not convert the overall nature of the respondent's motion from an amendment motion into a rule 21.01(1)(a) motion: Fram, at para. 38.⁵ The amendments are to be granted unless they would have been struck out under rule 21.01(1)(b) as disclosing no reasonable cause of action: Fram, at para. 31. In allowing the amendment motion, the motion judge was only empowered to make a preliminary assessment about the tenability of the amendments: Fram, at para. 39.

[68] The motion judge erred in effectively addressing the limitation and notice period issues as if this were not a pleadings motion but rather a motion for judgment on the limitation and notice period defences, which had not yet been pleaded: Tran v. University of Western Ontario, [2016] O.J. No. 6645, 2016 ONCA 978, at para. 21.

[69] This court has cautioned against the practice of challenging a claim based on a limitation defence where the proposed defendant has yet to deliver a statement of defence, because a court cannot gain a complete picture of the issues in a case without reading all of the pleadings. The claimant is entitled to reply to a statement of defence and to put before the court further facts, for example, on the question of the discoverability of the claim. It would only be at that point that the issue of discoverability would be fully joined. (See Tran, at paras. 19 to 21; Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc. (2012), 113 O.R. (3d) 673, [2012] O.J. No. 5682, 2012 ONCA 850, at para. 115; Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., [2009] O.J. No. 611, 2009 CarswellOnt 748 (S.C.J.), at para. 18.)

[70] Parties on an amendment motion are not expected to "put their best foot forward", as they would on a motion for summary judgment. As a result, the evidentiary burden on the moving party in an amendment motion, even to add parties after the expiry of a limitation period, is low: Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648, [2006] O.J. No. 5042 (C.A.), at para. 14.

[71] In Collins, at paras. 8-9, this court reviewed the case law dealing with amendments to a statement of claim where it was alleged that the limitation period had expired. This court concluded that, for the most part, the decisions canvassed "stand for the principle that a motion to add a new party after the alleged expiry of a limitation period should in the normal course be considered based on the allegations in the proposed amended pleading without the need to consider an evidentiary record on the limitation issue". This court went on to explain that this is different from a motion for summary judgment to dismiss a claim based on the expiry of a limitation period. In the latter case, the court is making a final rather than an interlocutory decision.

[72] As I noted earlier, the notice period issue under the Municipal Act, 2001 gives rise to myriad credibility issues and issues of fact. Specifically, pursuant to s. 44(12) of the Act, the questions as to whether the respondent had reasonable excuse for the delay in giving the requisite ten-day notice under s. 44(10) of the Act, and whether the city has suffered prejudice in its defence, require determination on a summary judgment motion or at trial.

[73] It is noteworthy in that regard that the city argues that it cannot be predicted at this early stage that the city's duly purged records could have no relevance to the issue of prejudice. I agree. The city's submission demonstrates that the issue of prejudice requires determination on a summary judgment motion or at a trial.

[74] The same is true with respect to the issue of whether the respondent has a reasonable excuse for the delay in giving notice to the city. I disagree with the city's assertion that there was nothing on the record that could be considered for the purpose of determining whether there were live issues that merit consideration on a summary judgment motion or at trial with respect to the issue of reasonable excuse.

[75] What constitutes "reasonable excuse" for not giving the required ten-day notice is to be given a broad and liberal interpretation and, where the city is not prejudiced by the delay, a "modest excuse" may be sufficient to justify the late notice: Fremeau v. Toronto (City), [2009] O.J. No. 2391, 61 M.P.L.R. (4th) 279 (S.C.J.), at para. 24. The court should consider all of the circumstances: see Crinson v. Toronto (City) (2010), 100 O.R. (3d) 366, [2010] O.J. No. 216, 2010 ONCA 44, at paras. 20-23; Seif v. Toronto (City) (2015), 125 O.R. (3d) 481, [2015] O.J. No. 2458, 2015 ONCA 321, at paras. 26 and 47. It is also important to note that the types of circumstances that will amount to a reasonable excuse have not been exhaustively defined or catalogued.

[76] While the motion judge emphasized the absolute need to give primacy to the protection of minors as part of the reasonable excuse for not giving notice, she also indicated that this was not the only factor on which she determined that there was a reasonable excuse. In her view, it was one factor "among other things" that could constitute a reasonable excuse. I agree with the motion judge that it is of significance to the issue of reasonable excuse that the complex circumstances of this case involve a catastrophically impaired infant who was entirely dependent on others to properly assert his claims and that they may not have adequately represented him. As a result, it is all the more important that Bayden's potential claims not be foreclosed prematurely, especially in the absence of settled pleadings and a full record.

[77] I am satisfied that there are issues of fact and credibility relevant to the questions of reasonable excuse and prejudice that remain to be determined. Some of these issues, which may be expanded upon, include the following:

(i) Whether the respondent was capable of forming the intention to sue the municipality within the notice period under s. 44(10) of the Municipal Act, 2001. Relevant to this issue are the catastrophic injuries suffered by the respondent and his very young age.

(ii) Whether the respondent had a representative whose responsibility it was to retain a lawyer and pursue all possible claims. First, given her own injuries, could Ms. Neville properly represent Bayden? She had herself suffered a brain injury as a result of the accident and was experiencing pain and struggling when she originally retained a solicitor. Second, could she properly represent Bayden because of her conflict of interest? From the outset, Bayden's mother was in a conflict position with respect to her son's claims because she was the driver of the vehicle in which Bayden was injured. Moreover, could she meet the requirements of rule 7.02(2)(g) of the Rules of Civil Procedure that she had "no interest in the proceeding adverse to that of the person under disability" or could act as litigation guardian for all of Bayden's claims, including the claim against the city, given that his claims would be against her, as well as against the city? These questions raise issues that are still to be determined.

(iii) The alleged negligence of Wallbridge gives rise to the following issues: whether the law firm failed to consider and advise Ms. Neville of Bayden's potential claims, including a possible claim against the city; whether the law firm was in a conflict of interest in purporting to represent both Bayden and his mother; and whether the law firm was negligent in the settlement of Ms. Neville's claim.

(iv) As already mentioned, whether the city's duly purged records could have relevance to the issue that it suffered prejudice to its defence.

(v) Whether the respondent will be able to rebut the presumption of prejudice caused by the delay in this case because of the city's ability to access other sources of information about the accident's circumstances, such as timely photographs of the scene.

(vi) Whether there will be an explanation for the long delay in giving notice, evidence of which was not advanced on the pleadings motion because it was a pleadings motion. Additional explanations may be forthcoming should a summary judgment motion be brought or at trial.

[78] As my colleague notes, the length of the delay is a relevant consideration when examining reasonable excuse: Argue v. Tay (Township), [2012] O.J. No. 3776, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77 (S.C.J.), at para. 51, affd [2013] O.J. No. 1787, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 246. However, it is important to keep in mind that the length of delay, by itself, is not necessarily dispositive of whether there is reasonable excuse for the delay. The amount of delay that is acceptable has not been firmly established by the courts but depends on all of the other relevant circumstances of the particular case: Delahaye v. Toronto (City), [2011] O.J. No. 4006, 2011 ONSC 5031 (S.C.J.), at paras. 37-38.

[79] While any of the factors enumerated above, taken individually, may not be sufficient to constitute reasonable excuse on a summary judgment motion or at trial, in combination they may be enough to overcome the lengthy delay in this case and serve as reasonable excuse for the respondent's failure to give the city notice within ten days of the commencement of the action in 2014: Crinson, at paras. 19 and 38; Seif, at paras. 26-27 and 29 (per Hoy A.C.J.O., partly in dissent but not on this point). These were not issues that the motion judge was required to finally decide. It is sufficient for the purposes of the amendment motion that these issues give rise to issues of fact and credibility, which merit consideration on a summary judgment motion or at trial.

[80] The motion judge exercised her discretion under rules 5.04(2) and 26.01 of the Rules of Civil Procedure to permit a pleadings amendment to add the city to the respondent's action. In making that determination, the motion judge could not finally decide the limitation and notice period issues in favour of the respondent. She could only assess whether the amendments are tenable, whether there is sufficient evidence on the notice period issue to permit the amendments at this preliminary stage of the litigation, and whether the record gives rise to credibility issues and issues of fact that merit consideration on a motion for summary judgment or at trial.

[81] In my view, the low threshold was met in this case. I see no error in the motion judge's exercise of her discretion to allow the amendments.

C. Disposition

[82] Accordingly, I would allow the city's appeal to the extent of granting leave to the appellant to plead limitation and notice period defences under the Limitations Act, 2002 and the Municipal Act, 2001. The appeal should otherwise be dismissed.

D. Costs

[83] The city was successful in its alternative relief on appeal and is entitled to costs against the respondent in the amount of $7,500. I would not overturn the costs awarded to the respondent on the motion below because the city was not successful in the main focus of its appeal to overturn the order adding it as a party defendant.

Appeal Allowed

Notes

¹ Counsel before the motion judge and before this court argued on the basis that Julia Neville did not swear the affidavit required and the appeal is disposed of on that basis.

² A litigation guardian is an officer of the court and is a representative of a party, but is not a party to the proceedings: see Lucas v. Coupal (1930), 66 O.L.R. 141, [1930] O.J. No. 20, [1931] 1 D.L.R. 391 (H.C.J.); and Poulin v. Nadon, [1950] O.R. 219, [1950] O.J. No. 433, [1950] 2 D.L.R. 303 (C.A.).

³ This conflict of interest would also prevent the same lawyer from acting for both Neville and Bayden unless they provided fully informed and voluntary consent -- likely after both Neville and Bayden (through a litigation guardian other than Neville) had obtained independent legal advice: Law Society of Upper Canada, Rules of Professional Conduct, rule 3.4-2.

⁴ In interpreting a statute there is a presumption of reasonableness: see Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at pp. 222, 236. It is also presumed that the legislature does not intend unjust or inequitable results to flow from its enactments, and judicial interpretations should be adopted which avoid such results: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, at para. 65. An interpretation of the Municipal Act, 2001 which ignores the suspension of time due to the incapacity of a minor would not be in harmony with the Limitations Act, 2002 and would therefore be contrary to "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter": R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, 2001 SCC 56, at para. 52. In relation to the related issue of discoverability of an injury and the running of a notice period, the Supreme Court's decision in Montreal (City) v. Vaillancourt, [1977] 2 S.C.R. 849, [1976] S.C.J. No. 96, at pp. 856-57 S.C.R., is arguably authority for the proposition that the notice period does not begin to run until the date of discovery. That said, in Ontario, the issue of discoverability is dealt with under s. 44(12) as a question of reasonable excuse: Crinson v. Toronto (City) (2010), 100 O.R. (3d) 366, [2010] O.J. No. 216, 2010 ONCA 44; Seif v. Toronto (City) (2015), 125 O.R. (3d) 481, [2015] O.J. No. 2458, 2015 ONCA 321.

⁵ Interestingly, and in contrast to the present case, in Ball v. Donais (1993), 13 O.R. (3d) 322, [1993] O.J. No. 972 (C.A.), a case referenced by this court in Fram, the parties had singled out the limitation period issue for resolution in a motion brought under rule 21.01(1)(a). In Ball, the defendant had brought a motion under rule 21.01(1)(a) for the final determination before trial of the legal issue raised in the pleadings as to whether the limitation period had expired. This court concluded that the motion judge had finally determined the issue in favour of the respondent plaintiff that the limitation period had not expired.