Rooplal v. Fodor, 2019 ONSC 7211
CITATION: Rooplal v. Fodor, 2019 ONSC 7211
DIVISIONAL COURT FILE NO.: 565/18
DATE: 20191211
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, DUCHARME and LeMAY JJ.
BETWEEN:
BIBI SAFFORA ROOPLAL
Respondent
– and –
LESLIE PATRICK FODOR, TORONTO TRANSIT COMMISSION, JOHN DOE DRIVER, JOHN DOE OWNER and NOVEX INSURANCE COMPANY
Appellants
COUNSEL:
Robert Patterson, for the Respondent
J. Thomas Curry and Adam Kanji, for the Appellants Leslie Patrick Fodor, and Toronto Transit Commission
Maseeh Sidky for Novex Insurance Company
HEARD at Toronto: December 11, 2019
DUCHARME J. (Orally)
[1] This is an appeal by Leslie Patrick Fodor and the Toronto Transit Commission (collectively, “the Appellants”) from the Order of Madam Justice Chiappetta, dated August 20, 2018, granting leave for the Plaintiff, Bibi Saffora Rooplal, to amend her Statement of Claim to add the TTC Insurance Company Limited (the “TTCICL”) as a defendant, and the subsequent Reasons for Decision, dated September 27, 2018 (the “Reasons”).
[2] Before Justice Chiappetta, the Appellants argued that Ms. Rooplal’s claim against the TTCICL under section 265 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Insurance Act”), is statute-barred in accordance with s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”). On appeal, the Appellants request that their Appeal be allowed with costs, and that the Order of Madam Justice Chiappetta be set aside.
[3] The parties agree that correctness is the standard of review for the sole question of law raised on appeal.
[4] On the issue of discoverability, the parties relied on ostensibly conflicting lines of jurisprudence from the Court of Appeal for Ontario. On the one hand, were the cases decided before the Limitations Act had entered into force, finding that the limitation period begins to run when the material facts on which the claim is based have been discovered or ought to have been discovered by the plaintiff’s exercise of reasonable diligence (July v. Neal (1986), 1986 149 (ON CA), 32 D.L.R. (4th) 463; Johnson v. Wunderlich (1986), 1986 2618 (ON CA), 34 D.L.R. (4th) 120; Hier v. Allstate Insurance Co. of Canada (1988), 1988 4741 (ON CA), 51 D.L.R. (4th) 1; and Chambo v. Musseau (1993), 1993 8680 (ON CA), 15 O.R. (3d) 305. The other line of authority involves cases decided after the Limitations Act had entered into force, which, as explained in the Superior Court’s decision in Chahine v. Grybas, 2014 ONSC 4698, provided that the limitation period does not begin until the plaintiff makes an indemnification demand and the responding insurer fails to satisfy the claim (Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652; and Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143). The defendants argued that the July line of cases sets out the proper discoverability analysis, while the plaintiff argued that the Markel line of cases sets out the proper analysis.
[5] The Motions judge ultimately determined that she was bound by the Markel line of authorities rather than the July line of cases because, while the latter is predicated on the common law principles of discoverability set out by the Supreme Court of Canada in Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, the discoverability provisions in the Limitations Act govern the analysis in the present case rather than the common law principles before the Court of Appeal in the July line of cases.
[6] We agree with the reasoning of the Motions Judge and would dismiss the appeal.
SACHS J.
[7] I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for reasons given orally by Ducharme J. As agreed, the appellants shall pay the respondent for costs of the appeal fixed in the amount of $11,000, all inclusive.”
Ducharme J.
I agree
Sachs J.
I agree
LeMay J.
Date of Oral Reasons for Judgment: December 11, 2019
Date of Release: December 12, 2019
CITATION: Rooplal v. Fodor, 2019 ONSC 7211
DIVISIONAL COURT FILE NO.: 565/18 DATE: 20191211
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, DUCHARME and LeMAY JJ.
BETWEEN:
BIBI SAFFORA ROOPLAL Respondent
– and –
LESLIE PATRICK FODOR, TORONTO TRANSIT COMMISSION, JOHN DOE DRIVER, JOHN DOE OWNER and NOVEX INSURANCE COMPANY Appellants
ORAL REASONS FOR JUDGMENT
Ducharme J.
Date of Oral Reasons for Judgment: December 11, 2019
Date of Release: December 12, 2019