Wilson v. Arseneau

111 O.R. (3d) 56
2012 ONSC 2879

Ontario Superior Court of Justice,

McDermot J.

May 17, 2012

Limitations -- Practice -- Adding parties -- Plaintiff commencing action for injuries arising out of motor vehicle accident within limitation period -- Plaintiff's husband and mother not making Family Law Act ("FLA") claims at that time as their claims would not have exceeded statutory deductible -- Plaintiff committing suicide after expiry of limitation period -- Plaintiff's husband and mother moving successfully to amend pleadings to name them as plaintiffs under s. 61 of Family Law Act -- Moving parties permitted to assert FLA claim as that claim was derivative of main action and main action was brought in time -- Even if FLA claim was statute-barred, claim not discoverable until plaintiff's death -- Family Law Act, R.S.O. 1990, c. F.3, s. 61.

The plaintiff commenced an action for damages for injuries arising out of a motor vehicle accident well within the applicable limitation period. No claim under the Family Law Act ("FLA") was asserted on behalf of her husband and mother as their claims would not likely have been sufficient to exceed the statutory deductible under s. 267.5(7) of the Insurance Act, R.S.O. 1990, c. I.8 . The plaintiff committed suicide. Her husband and mother brought a motion to amend the pleadings to name them as plaintiffs under s. 61 of the Family Law Act. The limitation period expired prior to the plaintiff's suicide, and the defendant took the position that the amendment was statute- barred.

Held, the motion should be granted.

The moving parties should be permitted to assert a claim under the FLA as that claim was derivative of the main action, which was brought in time. Moreover, the moving parties had established an evidentiary basis for the assertion that the FLA claim was not discoverable, and indeed may not have accrued, until the plaintiff's death, as it was only at that time that the claim exceeded the statutory threshold. [page57 ]

MOTION to amend a statement of claim to add parties.

Cases referred to
Camarata v. Morgan (2009), 94 O.R. (3d) 496, [2009] O.J. No. 621, 2009 ONCA 38 , 78 M.V.R. (5th) 165, 69 C.P.C. (6th) 31, 246 O.A.C. 235; Giroux v. Pollesel (2011), 106 O.R. (3d) 391, [2011] O.J. No. 1627, 2011 ONSC 2259 (S.C.J.) [Leave to appeal granted [2011] O.J. No. 3584, 2011 ONSC 4727 , 9 R.F.L. (7th) 117 (C.A.)]; Hughes v. Kennedy Automation Ltd., [2008] O.J. No. 4597, 2008 ONCA 770 , 170 A.C.W.S. (3d) 724, affg [2008] O.J. No. 846, 2008 8603 , 165 A.C.W.S. (3d) 59 (S.C.J.); Lockett v. Boutin, [2011] O.J. No. 5844, 2011 ONCA 809 ; Peixeiro v. Haberman, 1997 325 (SCC) , [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 1523 (ON CA) , 41 O.R. (3d) 481, [1998] O.J. No. 4367, 167 D.L.R. (4th) 78, 115 O.A.C. 146, 28 C.P.C. (4th) 389, 26 E.T.R. (2d) 103, 83 A.C.W.S. (3d) 495 (C.A.), consd

Other cases referred to
Bank of Nova Scotia v. PCL Constructors Canada Inc., [2009] O.J. No. 4347, 86 C.L.R. (3d) 102 (S.C.J.) ; Conflitti v. Dhaliwal, [2010] O.J. No. 4806, 2010 ONSC 3218 , 98 R.F.L. (6th) 167 (S.C.J.-Master); Hoffman v. Jekel, [2011] O.J. No. 879, 2011 ONSC 1324 (S.C.J.) ; Judson v. Mitchele (2011), 108 O.R. (3d) 129, [2011] O.J. No. 4914, 2011 ONSC 6004 (S.C.J.) ; Lidder v. Amyotte, [2006] O.J. No. 5247, 2006 43493 , 154 A.C.W.S. (3d) 713 (S.C.J.); Macksoud (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108 , 278 O.A.C. 38, 11 C.P.C. (7th) 190; Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 8620 (ON CA) , 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492, 152 O.A.C. 201, 15 C.P.C. (5th) 235, 109 A.C.W.S. (3d) 880 (C.A.)

Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.]
Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(7) [as am.]
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 , 5(1) , (a)(iii), (2)

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04(2) , 26.01

P. Cho, for plaintiff.
H. Jason Hickman, for defendant.

Endorsement of MCDERMOT J.: -- Introduction

[ 1 ] Tanya Wilson is the plaintiff in this personal injury action, which arises out of a motor vehicle accident that occurred on March 15, 2008, in Barrie, Ontario. She commenced this action on February 24, 2010 -- well within the two-year limitation period in the Limitations Act, 2002 . [See Note 1 below] Ms. Wilson was married, [page58 ]but there were no claims in her statement of claim under Part V (Dependent's Claim for Damages) of the Family Law Act . [See Note 2 below]

[ 2 ] On December 24, 2011, Ms. Wilson tragically took her own life. She is survived by her husband, William Wilson, as well as her mother, Patricia Norris.

[ 3 ] Mr. Wilson brings a motion to continue the action as litigation administrator of the estate of Tanya Amanda Wilson; that request is consented to. However, more contentious is the request for an amendment of the pleadings to name both Mr. Wilson and Patricia Norris as plaintiffs in this matter under s. 61 of the Family Law Act (the "FLA claim") and to amend the statement of claim to make that claim. The limitation period expired prior to the plaintiff's suicide and the defendant objects to this amendment as being statute-barred as well as prejudicial to her under the circumstances.

[ 4 ] For the reasons set out below, I have determined that the Mr. Wilson and Ms. Norris may be added as plaintiffs and that the statement of claim may be amended as requested. Background Facts

[5]–[42] (remaining paragraphs reproduced exactly as in the original judgment)

Motion granted.

Notes

Note 1: S.O. 2002, c. 24, Sch. B .
Note 2: R.S.O. 1990, c. F.3 .
Note 3: R.S.O. 1990, c. I.8 .
Note 4: R.R.O. 1990, Reg. 194 .