ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-9557
DATE: September 17, 2012
B E T W E E N:
ANGELA TEMPORIN AND TULLIO TEMPORIN
Plaintiffs
Stephen E. Sloan, Counsel for the Plaintiffs
- and -
TESSA DIVINCENZO
Defendant
No one appearing
- and -
THE CORPORATION OF THE CITY OF BURLINGTON
Third Party
David Boghosian
HEARD: September 13, 2012
REASONS FOR RULING
Parayeski J.
[ 1 ] The plaintiffs bring a motion seeking to amend their statement of claim to add the Corporation of the City of Burlington (“Burlington”) and the Regional Municipality of Halton as party defendants, and for leave to properly name the present, single defendant as a person being represented by a litigation guardian.
[ 2 ] At the commencement of the motion, I was advised that the plaintiffs wished to withdraw their motion relative to the Regional Municipality of Halton, and that there was either consent or no opposition to the amendment to reflect the fact that the current defendant, Tessa DiVincenzo, is a person under disability being represented by the Public Guardian and Trustee.
[ 3 ] The amendment relative to adding Burlington as a party defendant is opposed by that municipality. This relief is consented to by counsel for the defendant DiVincenzo. The Public Guardian and Trustee takes no position on this point.
[ 4 ] Opposition by Burlington flows from s. 21(1) of the Limitations Act , 2002 S.O., 2002 c.24 , which prohibits the addition of parties post-limitation.
[ 5 ] The action is based upon a motor vehicle accident that occurred on March 2 nd , 2007, on the North Service Road near its intersection with Kerns Road in Burlington. It is alleged that the vehicle being operated by DiVincenzo lost control on a patch of ice and crossed into the lane in which the plaintiffs were travelling. The vehicles collided head on. DiVincenzo suffered catastrophic injuries.
[ 6 ] The statement of claim in this action was issued on February 27 th , 2009. It names only DiVincenzo as defendant. DiVincenzo commenced a third party action as against Burlington on May 25 th , 2011. Accordingly, Burlington is already a party to this action, albeit as a third party. The plaintiffs wish that it be made a party defendant. Because of the doctrine of joint and severable liability, the distinction only has practical ramifications to the plaintiffs’ recovery of damages if Burlington were to be found 100% liable for the accident.
[ 7 ] DiVincenzo issued a statement of claim of her own on February 20 th , 2009, wherein she names the plaintiff Tullio and the City of Burlington as defendants.
[ 8 ] As we are plainly more than 2 years past the date of the accident itself, the plaintiffs rely upon the discoverability principle to allow them to add Burlington as a defendant at this time.
[ 9 ] The discovery principle has been succinctly described at paragraph 16 of the Ontario Court of Appeal decision in Pepper and Zellers Inc. , (2006) 2006 42355 (ON CA) , O.J. No. 5042 as follows:
“[It is] 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.”
That same case repeats an earlier Ontario Court of Appeal case which places a positive obligation upon a plaintiff to exercise reasonable diligence in pursuing his or her claim.
[ 10 ] The amended statement of claim submitted by the plaintiffs indicates that the thrust of the proposed allegations against Burlington is that it failed to properly maintain the roadway in question by salting or sanding it in a timely fashion so as to reduce or eliminate the icy conditions which are said to be a contributing factor to the accident. The question, therefore, is when did the plaintiff’s know, or when ought they have known by the exercise of reasonable diligence, the material facts upon which to ground an action against Burlington?
[ 11 ] The plaintiffs concede that they knew such material facts when they obtained the notes of the police officers who attended the accident. Those notes provide a more fulsome description of the road conditions than does the police accident report itself. Among other things, the notes refer to the officers calling for road maintenance, the roadway being shut down to traffic, and “fierce” black ice.
[ 12 ] Although the plaintiffs’ received the police accident report on June 5 th , 2007, they did not receive the notes I have described until June 16 th , 2010. It is that latter date from which the plaintiffs say the 2 year limitation period began to run. Their motion to add Burlington was commenced on March 9 th , 2012.
[ 13 ] The police notes, which the plaintiffs argue were crucial to their state of knowledge relative to the material facts, were first requested by their counsel on June 4 th , 2007. In response to that request, the police sent a letter dated July 12 th , 2007, indicating that they would forward the notes, with the relevant redactions, upon payment of an $89.00 fee. Through inadvertence, the demand for payment in advance was overlooked. Not surprisingly, the notes were not sent by the police. The absence of the notes went unnoticed until sometime in early 2010. On April 14 th , 2010, they were requested again. They were paid for this time, and were received on July 16 th , 2010, as mentioned above.
[ 14 ] Burlington argues on the point of the police notes, and I agree, that the limitation period began to run when the plaintiffs ought to have received those notes by the exercise of reasonable diligence. Plaintiff counsel obviously thought that the notes had some investigative significance. Otherwise, they wouldn’t have been requested in June of 2007. In my view, reasonable diligence relative to the notes would have involved noting the pre-payment demand and making appropriate payment or, barring that, noting that the notes hadn’t been received within a reasonable period of time and following up. None of this happened.
[ 15 ] If due diligence had been exercised, the crucial notes would easily have been received within 3 months of the date of their initial request, ie. by September 4 th , 2007. The limitation period began to run on that date, meaning that it is too late to add Burlington as a party defendant by means of the present motion.
[ 16 ] I appreciate that the failure to obtain the notes reasonably promptly was the result of inadvertence. However, the discoverability principle does not include an exception for inadvertence on the part of plaintiffs.
[ 17 ] Similarly, the apparent lack of prejudice to Burlington does not justify its being made a defendant post-limitation.
[ 18 ] I understand that the plaintiffs may not have focused upon the need to have Burlington as a party defendant because of the communications they had with DiVincenzo’s insurer, but that does not relieve them of the duty to act diligently. I reject any suggestion that the insurer in question had some kind of positive duty to tell the plaintiffs how to conduct their action. Even if it did, of course, it does not represent Burlington.
[ 19 ] In the present circumstances, there is no need to leave the question of the limitation period to determination by the trial judge.
[ 20 ] My conclusion makes it unnecessary to consider the other issues raised in the course of the motion, including whether the plaintiffs knew the material facts at the accident scene, or upon receipt of the police accident report in 2007, or whether one of them having been named as a co-defendant with Burlington in the DiVincenzo action commenced in 2009, should have alerted them to the need to sue that municipality.
[ 21 ] The motion is dismissed relative to the naming of Burlington as a party defendant, but is allowed relative to the proper naming of the defendant DiVincenzo and her litigation guardian.
[ 22 ] If the parties are unable to agree with respect to costs, they may make brief written submissions to me in that regard. Each set of submissions shall not be more than 2 type-written pages in length, and have attached to it a costs outline. The plaintiffs shall have until October 15 th , 2012, to make any cost submission, with the City of Burlington having a further 15 days to respond. Cost submissions, if any, should be forwarded to my attention at the John Sopinka Court House, in Hamilton.
Parayeski J.
Released: September 17, 2012
COURT FILE NO.: 09-9557
DATE: September 17, 2012
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ANGELA TEMPORIN AND TULLIO TEMPORIN Plaintiffs - and – THE CORPORATION OF THE CITY OF BURLINGTON Third Party REASONS FOR RULING Parayeski J. MDP//dm
Released: September 17, 2012