ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-16427
DATE: 2012-03-09
B E T W E E N:
BALRAJ WIRRING, MANDEEP KAUR WIRRING AND AMBER WIRRING by her Litigation Guardian BALRAJ WIRRING
S. Alam, for the Plaintiffs/Moving Parties
Plaintiffs
- and -
THE BUFFALO GROUP DEVELOPMENTS LTD.
C. Klinowski for the Proposed Defendant/Responding Party
Defendant
J. Chrolavicius, for the Defendant
HEARD: at Hamilton on January 31, 2012
REASONS FOR DECISION
CAVARZAN J.
[ 1 ] This is a motion to amend the Statement of Claim to add the proposed defendant 2132226 Ontario Inc. and to amend the location in which the slip and fall occurred to 7500 East Danbro Crescent, Mississauga, Ontario.
[ 2 ] For the reasons stated below, I have concluded that this motion fails and must be dismissed. The moving parties have provided no explanation for their failure to identify the owner of the property where they allege the slip and fall occurred, nor any indication of the efforts made to determine ownership of the property. Their reliance, in the alternative, on rules 5.04(2) and 26.01 and on the doctrine of special circumstances is misconceived in light of the definitive ruling by the Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 that rules 5.04(2) and 26.01 cannot extend a limitation period through the application of the common law doctrine of special circumstances.
[ 3 ] Their further alternative argument based upon subsection 21(2) of the Limitations Act fails as well.
Background
[ 4 ] The plaintiff Balraj Wirring (hereinafter Balraj) was an independent contractor driving commercial vehicles (trucks and trailers) for the defendant, The Buffalo Group Developments Ltd. (Buffalo Group).
[ 5 ] The Buffalo Group provided parking on various properties for its contractors to park their trucks and trailers.
[ 6 ] On November 29, 2007, the Buffalo Group’s dispatcher, Jessie Athwal, requested Balraj to make a delivery. Mr. Athwal directed Balraj where to pick up and to return the truck after making the delivery. While getting out of the truck that day, Balraj slipped on some ice and fell, fracturing his left shoulder in three places and sustaining soft tissue injuries to his neck and his left arm.
[ 7 ] Balraj was able to contact the dispatcher by telephone from the scene of the fall. He contacted his wife, the plaintiff Mandeep Kaur Wirring (Mandeep), as well. Mandeep and a neighbour, Harinder Singh Sidhu, travelled together in Mandeep’s automobile to the location of Balraj’s fall, as did the dispatcher, Mr. Athwal. Mr. Sidhu and Mr. Athwal and a third person accompanied him to the hospital.
[ 8 ] The statement of claim was issued on November 30, 2009, alleging that the slip and fall occurred at 160 Derry Road East in Mississauga, a property owned by the defendant company. It was amended on January 24, 2011 to specify the correct date of the slip and fall and to change the description of Balraj’s status from employee of Buffalo Group to independent contractor.
[ 9 ] Examinations for discovery of the plaintiff, Balraj and a representative of Buffalo Group were held on February 17, 2011. The examination of Balraj was not completed. Balraj stated for the first time at that examination, that the slip and fall had occurred at 7500 Danbro Crescent East, in Brampton, Ontario.
[ 10 ] Affidavits in support of the motion were provided by Mr. Barrafato, the plaintiffs’ solicitor and, in a supplementary motion record, by Balraj and his neighbor, Mr. Sidhu. The plaintiff Mandeep, who drove to the location of the slip and fall, did not provide an affidavit.
[ 11 ] At paragraph 23 of the Barrafato affidavit, it is stated that by “mere inadvertence” the plaintiff confused, in the statement of claim, the location where he had slipped and fallen. No particulars of this inadvertence are provided. The Sidhu affidavit of January 17, 2012 does not identify the location. In his affidavit of January 17, 2012, Balraj simply states at paragraph 16 that “I fell at 7500 East Danbro Crescent, in the City of Brampton, Ontario” and, at paragraph 17, that he had provided a statement to his insurance company on November 19, 2008, in which he stated that he was uncertain about the location where he had fallen.
[ 12 ] Affidavit material filed by the solicitors for the proposed defendant, establishes that 160 Derry Road East and 7500 Danbro Crescent East are both located in Mississauga but almost ten kilometers removed from each other.
[ 13 ] Paragraphs 10 and 11 of the factum of the proposed defendant round out the background to this motion:
At the first returnable date of December 29, 2011, the plaintiffs consented to an order of this Court that the motion be adjourned to January 31, 2012 on terms that the plaintiffs must prepare a proposed amended pleading by January 9, 2012 and serve all further materials by January 17, 2012. The plaintiffs subsequently served their proposed Amended Amended Statement of Claim and a Supplementary Motion Record containing the affidavits of the plaintiff, Balraj Wirring and the neighbor, Harinder Singh Sidhu. There is no affidavit from the other Sidhu adult plaintiff, Mrs. Mandeep Kaur Wirring, who was there at the scene.
The proposed Amended Amended Statement of Claim indeed redefines the specific premises of the fall from 160 Derry Road East, Mississauga, to “7500 East Danbro Crescent, Brampton.” It proposes to add the Responding Party, 2132226 Ontario Inc., with allegations of negligence and occupier’s liability as the alleged “owner/landlord” of this new premises. It extends the claim against the existing Defendant to cover maintenance and control of the new premises. No fact of delayed discoverability is pleaded as to any of the changed material facts.
The Law
[ 14 ] The relevant provisions of the Limitations Act, 2002, S.O. 2002 c.24 are the following:
Basic limitation period
- 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.
Discovery
- (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).
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.
Adding Party
- (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[ 15 ] A claim is discovered, according to subsection 5(1) on the earlier of the dates when the plaintiff knew the four elements listed in s. 5(1)(a) and when a reasonable person with the abilities and in the circumstances of the plaintiffs first ought to have known of the matters referred to in clause (a).
[ 16 ] The plaintiffs’ materials and the history of this action make it clear that elements (i), (ii) and (iv) of s. 5(1)(a) above were satisfied with actual knowledge on the day of the loss. The plaintiffs assert that they learned the identity of the owner of 7500 Danbro Crescent East at the examinations for discovery held on February 17, 2011, less than two years ago.
[ 17 ] Subsection 5(2) creates a presumption that the plaintiffs knew all four elements in s. 5(1) (a) on the date of the occurrence, “unless the contrary is proved”. There is an evidentiary burden on the plaintiffs.
[ 18 ] Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy), 2006 ONCA 42355 , [2006] O.J. No. 5042 (Ont. C.A.) is a case in which the Court of Appeal affirmed the decision of the motions judge who had refused to permit the addition of one of the proposed added defendants. The discovery principle is addressed at paragraph 16:
- The first question in this case related to discoverability, a principle that provides that a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. This principle ensures that a person is not unjustly precluded from litigation before he or she has the information to commence an action provided that the person can demonstrate he or she exercised reasonable or due diligence to discover the information. See Peixeiro v. Haberman . The obligation on a plaintiff to exercise reasonable diligence is a positive one: see Soper v. Southcott .
[ 19 ] In the Pepper case, the Court of Appeal reiterated the proposition (at para. 21) that “In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent.” There is no list of attempts in the Barrafato affidavit. Instead, at paragraph 21 of his affidavit it is asserted that the defendant “had more knowledge of the location of the fall” and failed to reveal it to the plaintiffs by correcting its statement of defence or at any time prior to the discovery on February 17, 2011.
[ 20 ] A similar assertion in the Pepper case led to this observation at paragraph 20:
20 . An examination of the evidentiary record in this case shows that the appellant’s material failed entirely to address whether they ought to have known Ms. Aube’s identity and what, if any, steps they took to determine that identity. Indeed, the appellants offer no explanation other than to say that no one gave them the information.
[ 21 ] It is implausible to suggest that Balraj was confused about the location of the incident when it is proposed to substitute a property almost ten kilometres distant from the property referred to in the statement of claim. It is equally implausible that Balraj, who attended the property on the instructions of the dispatcher and who telephoned his wife to come to that location, was unable to recall the location until the discoveries held more than three years after the incident.
[ 22 ] In this case, there is no evidence at all in the material filed about the inquiries and investigation, if any, that were made to ascertain all potential liable parties.
[ 23 ] The plaintiffs have failed to meet the burden of proof imposed by subsection 5(2) of the Limitations Act.
Special Circumstances
[ 24 ] The Court of Appeal in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 has put to rest the notion that special circumstances can justify the extension of a limitation period. The court observed that the common law doctrine of special circumstances came to be applied to motions under Rules 26.01 and 5.04(2) of the Rules of Civil Procedure to amend pleadings or add parties after the expiration of a limitation period.
[ 25 ] The possibility of extending the basic limitation period arises from the wording of sections 4 and 20 of the Limitations Act :
- 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.
20 . This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.
[ 26 ] The other Act considered was the Courts of Justice Act which authorizes the Rules Committee to enact the Rules of Civil Procedure . Suffice it to note here that the Court of Appeal found that the Courts of Justice Act itself provides that the rules may not conflict with an Act. At paragraphs 25 and 27 the court concluded as follows:
I am reinforced in my view by s. 21 of the new Act, which specifically prohibits the addition of parties to an existing action after the expiry of the limitation period. Section 20 would conflict with section 21 if it were interpreted to extend to the incorporation of the common law special circumstances doctrine, thereby allowing the possible addition of parties after the expiry of the limitation period where special circumstances exist, in conflict with s. 21.
…s. 20 does not refer to the extension of a limitation period under the new Act through the application of the common law doctrine of special circumstances to the Rules of Civil Procedure . Rules 5.04(2) and 26.01 must now be applied giving effect to the new Act.
[ 27 ] The alternative basis advanced for adding the proposed defendant fails.
The Subsection 21(2) Argument
[ 28 ] In brief reply submissions, Ms. Alam filed with the court, without objection from Mr. Klinowski, the reasons for judgment in Stekel v. Toyota Canada Inc., 2011 ONSC 6507 . That authority brings into the case a third basis for supporting the motion, namely, subsection 21(2) of the Limitations Act authorizing the correction of a misnaming or misdescription of a party.
[ 29 ] This basis for supporting the motion was not addressed in the factum of the moving party, nor in oral submissions in chief. I subsequently invited both sides to submit written submissions on the issue.
[ 30 ] Section 21 deals, in subsection (1), with adding a party and, in subsection (2), with misnaming or misdescription:
- (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
[ 31 ] Invoking subsection 21(2) involves an argument in the alternative on the assumption that the limitation period has expired. In the Stekel case, supra, it was not denied that the limitation period had expired.
[ 32 ] Stekel was a product liability case in which the plaintiffs alleged negligent manufacture of an automobile, and erroneously named Toyota Canada Inc. (TCI) as defendant instead of Toyota Motor Corporation (TMC). In allowing the correction of the misnomer, Campbell J. cited the two-part legal standard at para. 24:
[24] The Court of Appeal for Ontario has made it clear that a plaintiff’s pleading will be viewed as reflecting a correctible “misnomer” in respect of a defendant where it is apparent: (1) that the plaintiff intended to name the defendant; and (2) that the intended defendant knew it was the intended defendant in relation to the plaintiffs claim. Moreover, such a misnomer can be corrected notwithstanding that it requires that the defendant be added to the litigation after the expiry of the limitation period.
[ 33 ] The two-part test was satisfied in Stekel because the plaintiffs had pleaded defective manufacture, TCI was partly owned by and closely associated with TMC, and the evidence established that TMC had known from the outset that it was the intended defendant.
[ 34 ] Similarly in Lloyd v. Clark, 2008 ONCA 343 , the amendment was permitted pursuant to subsection 21(2) correcting the title of the proceeding to name the Regional Municipality of Durham as the defendant in place of the Town of Ajax and the Corporation of the Town of Whitby. At para. 3 of its reasons the Court of Appeal states that:
[3] We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham’s insurance adjustor to the plaintiff’s solicitor upon receipt of the statement of claim.
[ 35 ] The amended claims in the Stekel and Lloyd cases did not seek to change any facts about the losses claimed in those cases. I agree with the responding party’s submissions that a change in the underlying material facts makes it impossible to fulfill the requirements of misnomer.
[ 36 ] Having correctly identified the owner of the originally pleaded property, it cannot now be said that the proposed defendant knew that the litigation finger was pointed at it.
[ 37 ] The moving party has failed to meet the test in subsection 21(2). For this reason as well, the plaintiffs’ motion must be dismissed.
The Family Law Act Claims
[ 38 ] The Family Law Act claims are derivative claims; as such they are barred along with the claim of the only injured plaintiff.
Conclusion
[ 39 ] This motion is dismissed. If necessary, the parties may exchange brief written submissions on the costs of the motion and file them with the trial co-ordinator within 14 days.
Cavarzan J.
Released: March 9, 2012
COURT FILE NO.: 09-116427
DATE: 2012-03-09
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: BALRAJ WIRRING, MANDEEP KAUR WIRRING and AMBER WIRRING by her Litigation Guardian BALRAJ WIRRING Plaintiffs - and – THE BUFFALO GROUP DEVELOPMENTS LTD. Defendant REASONS FOR DECISION Cavarzan J. JC:mg
Released: March 9, 2012