CITATION: Reimer v. City of Toronto, 2023 ONSC 484

DIVISIONAL COURT FILE NO.: 738/21
DATE: 20230118

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett J.

BETWEEN:

MARGARET REIMER

Appellant / Plaintiff

– and –

CITY OF TORONTO and JOHN DOE MAINTENANCE COMPANY and D. CRUPI & SONS LIMITED

Defendants

Maple-Crete Inc. and Royalcrest Paving and Contracting Inc.

Proposed Defendants

COUNSEL:

A. Fabio Longo and Bryan Fromstein, for the Appellant

Amanda McBride and Daniel Michaud-Shields, for the Responding Proposed Defendants Maple-Crete Inc. and Royalcrest Paving and Contracting Inc.

HEARD at Toronto (by videoconference): June 9, 2022

REASONS FOR DECISION

D.L. Corbett J.

[1] The appellant appeals the final order of Master Muir dismissing the plaintiff’s motion to add Maple-Crete Inc. (“Maple-Crete”) and Royalcrest Paving and Contracting Ltd. (“Royalcrest”) as defendants to the action, either in substitution for the named defendant “John Doe Maintenance Company” or as added parties.

Background

[2] On February 7, 2017, the appellant twice slipped and fell, and was allegedly injured, after alighting from a TTC bus at the intersection of Sheppard Avenue East and Kennedy Road in Toronto (the “Incident”). The first fall allegedly happened on a sidewalk and the second fall on a roadway, in or near a “crosswalk”. The two falls allegedly took place in immediate succession.

[3] The defendant D. Crupi & Sons Ltd. (“Crupi”) was under contract with Toronto to salt and maintain the roadway and Maple-Crete was under contract with Toronto to perform sidewalk snow removal services in the relevant areas. Maple-Crete subcontracted its work to Royalcrest.

[4] On July 19, 2018, the appellant, by her former solicitors, gave notice of the Incident to City of Toronto.[^1]

[5] Apparently, nothing was done to identify possible additional defendants to the claim until January 2019, when, just before issuing the statement of claim, the current solicitors for the plaintiff spoke twice to an adjuster for the City of Toronto. The adjuster did not have information about the identity of possible defendants at that time. Immediately thereafter, on January 9, 2019, the current solicitors for the plaintiff had the statement of claim issued, naming “John Doe Maintenance Company” as a defendant.

[6] On March 13, 2019, Toronto advised plaintiff’s current solicitors that Crupi was the road contractor and Maple-Crete was the sidewalk contractor.

[7] The plaintiff’s motion to add Crupi and Maple-Crete was brought in September 2019. Maple-Crete first learned of the Incident on September 26, 2019, when it was served with the motion to add it as a defendant.

[8] The motion was initially returnable October 22, 2019, at which time Master Mills added Crupi as a defendant, unopposed. The opposed portions of the motion were heard by Master Muir on March 13, 2020.

Misnomer

[9] The Master correctly summarized the principles that apply to substitution of a party (or parties) on the basis of misnomer (Decision, paras. 10-12). He correctly determined that the question before him was whether an “objective and generous reading of the pleading would demonstrate the “litigation finger” is pointing at the proposed defendant.”[^2]

[10] The Master then reviewed the statement of claim and concluded that it did not point the “litigation finger” at Maple-Crete. This finding turned on his reading of para. 4 of the statement of claim, which reads:

… As the bus came to a stop, [the plaintiff] stepped down carefully and prudently onto the sidewalk and, suddenly, without warning, she slipped on ice on the unmaintained sidewalk. She was able to stand and proceeded to cross the roadway in the crosswalk and violently fell to the ground a second time on the unmaintained roadway, causing her to sustain serious personal injuries.

[11] The Master found that the statement of claim did not particularize alleged breaches of duty that distinguish between the roadway and the sidewalk. I agree with this finding but conclude that it does not assist in the misnomer analysis: if the plaintiff had no basis to understand that there were separate contractors for the sidewalk and the roadway, it would be unreasonable to expect the plaintiff to plead these issues separately for the sidewalk and the roadway. More significant, though, is the Master’s finding that paragraph 4, quoted above, (i) alleges that the plaintiff’s “serious personal injuries” were caused by the fall on the roadway, and (ii) does not allege injuries caused by the fall on the sidewalk. This reading of the claim is objective, and not ungenerous. The claim alleges that the plaintiff was injured when she fell crossing the street. It points the “litigation finger” at Crupi, but not at Maple-Crete.

[12] I see no error in principle in the master’s statements of principle, and his finding that the litigation finger was not pointed at Maple-Crete is supported by his “objective and generous” reading of the statement of claim.

Adding Defendants

[13] The Master quoted the relevant provisions of the Limitations Act and Rule 5.04(2) of the Rules of Civil Procedure. He correctly found that expiration of the applicable limitation period was a complete bar to adding a party: Morrison v. Barzo, 2018 ONCA 979, paras. 26-27.

[14] The Master noted that s.5(2) contains a presumption which, if not rebutted, would have the limitation period commence on the date of the Incident (February 7, 2017). The Master found that the plaintiff was not aware of Maple-Crete’s involvement until March 13, 2019, nor of Royalcrest’s involvement until October 22, 2019. These findings are not contested on appeal.

[15] The Master then found that “the plaintiff must also provide a reasonable explanation on proper evidence as to why the identity of the proposed defendants could not have been discovered earlier through the exercise of reasonable diligence.” The Master noted that this evidentiary burden is “low” and that the plaintiff’s evidence on this issue “must be given a generous reading” (Decision, para. 28). These statements of principle disclose no error.

[16] The Master found that there was “no evidence to suggest that anything was done to determine the identity of the proposed defendants prior to January 9, 2019” when the plaintiff’s counsel first contacted Toronto’s adjuster on this issue. This finding is rooted in the record and discloses no palpable and overriding error.

[17] The Master found that the plaintiff had counsel in July 2018, when the Notice Letter was sent to the City. The Master made no finding as to when the plaintiff first retained counsel. The plaintiff’s first solicitors, Diamond and Diamond LLP, were retained prior to the Notice Letter being sent (July 2018). Some time in late July or early August 2018, the file was transferred to the plaintiff’s current counsel: Cross-examination of Janet Young, January 20, 2020, QQ 62-63.

[18] The Master found that, after being asked, it took about two months for Toronto’s adjuster to provide information about the identity of Crupi and Maple-Crete. The Master also found that this information would have been readily available to the plaintiff if she or her counsel had called the City at its 311 telephone number, or had made simple internet inquiries. These findings were available to the Master and disclose no palpable and overriding error.

[19] Based on these facts, the Master found that the commencement of the limitation period should be extended from the date of the Incident for four months to the end of June 2017 “at the latest” (Decision, para. 34). In my view, this finding was generous to the plaintiff.

[20] This is not a case where a plaintiff (or her counsel) had no reason to believe there was some unnamed person who should be included as a party defendant. The plaintiff was represented by counsel experienced in personal injury claims, holding themselves out as experienced in personal injury claims, and no explanation was provided as to why the first inquiry to the City to identify the City’s contractors was not made until the eve of expiry of the limitation period. In these circumstances, on the record before the Master, it was reasonable for the Master to find that the requirement to exercise reasonable diligence to identify contractors began on about the date of the accident and could not be used to extend the limitation period for more than four months. Thus, the Master made no error in finding that the motion initiated in September 2019 to add Maple-Crete and Royalcrest as defendants was brought after expiry of the limitation period.

Disposition

[21] The appeal is dismissed, with costs payable by the appellant to the responding parties fixed at $10,000, inclusive, payable within thirty days.

___________________________ D.L. Corbett J.

Date of Release: January 18, 2023

DIVISIONAL COURT FILE NO.: 738/21
DATE: 20230116

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

D.L. Corbett J.

BETWEEN:

Margaret Reimer

Applellant / Plaintiff

– and –

CITY OF TORONTO, JOHN DOE MAINTENANCE COMPANY and D. CRUPI & SONS LIMITED

Defendants

REASONS FOR DECISION

D.L. Corbett J.

Date of Release: January 18, 2023

[^1]: The Notice Letter erroneously stated the date of the incident as February 7, 2018, rather than 2017. [^2]: See Loy-English v. Ottawa Hospital, 2019 ONSC 6075, paras. 21