SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-369007
MOTION HEARD: January 24, 2012

RE: Mariyan Boychev, a minor and party under disability by his litigation guardian, Stoyan Boychev, Stela Boycheva, a minor by her litigation guardian, Stoyan Boychev and Stoyan Boychev v. Fabio Alexandre Alves and Venelina Karagyozova-Boycheva

BEFORE: MASTER R.A. MUIR

COUNSEL:
Jan Fisher for the plaintiff

Harold W. Sterling for the proposed defendant Her Majesty the Queen in the Right of the Province of Ontario, Represented by the Minister of Transportation for the Province of Ontario

REASONS FOR DECISION

[ 1 ] The plaintiffs brings this motion pursuant to Rule 5.04(2) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting them leave to amend their statement of claim to add Her Majesty the Queen in the Right of the Province of Ontario, Represented by the Minister of Transportation for the Province of Ontario (the “MTO”) as a party defendant. The MTO opposes this motion. It appears that the current defendants do not oppose the relief sought by the plaintiffs.

BACKGROUND

[ 2 ] This action arises out of a very serious motor vehicle accident which took place on January 8, 2007 (the “Accident”). It appears that a motor vehicle being driven by the defendant Venelina Karagyozova-Boycheva was travelling southbound in a merge lane on Highway 427 near its intersection with the Queensway when it was rear-ended by a vehicle being driven by the defendant Fabio Alexandre Alves (“Alves”). The minor plaintiffs Mariyan Boychev and Stela Boycheva were passengers in the vehicle being driven by the defendant Venelina Karagyozova-Boycheva. As a result of the Accident, the plaintiff Mariyan Boychev suffered a severe traumatic brain injury and a spinal cord injury which have resulted in permanent paraplegia and major neurological impairments. The plaintiff Stela Boycheva appears to have suffered less serious injuries.

[ 3 ] The plaintiffs commenced this action on December 19, 2008. The plaintiff Mariyan Boychev is claiming damages in the amount of $20,000,000.00. The plaintiff Stela Boycheva is claiming damages in the amount of $250,000.00, plus damages pursuant to the Family Law Act , R.S.O. 1990, c. F.3 (the “FLA”). The defendant Stoyan Boychev is claiming damages pursuant to the FLA.

[ 4 ] The plaintiffs’ proposed amendments relate primarily to an allegation that the MTO was negligent in failing to post adequate highway signage in the area where the Accident occurred. [1] In particular, the proposed amendments allege that the MTO failed to “post adequate signage on the roadway to alert users of the Highway that the proper speed is 60 km/hr and that 60 km/hr is not only recommended but is the maximum speed allowed”.

[ 5 ] The plaintiffs argue that they only discovered the claim against the MTO when Alves was examined for discovery on June 15, 2011. The position of the plaintiffs is summarized in their factum at paragraph 31, which reads as follows:

31. The evidence which was discovered on the date of Mr. Alves’ examination for discovery was the fact that Mr. Alves did not reduce his speed as a result of seeing the advisory speed sign. He did not assign any importance to an advisory, because the actual speed limit continued to be 100 km/hr. Had the sign been mandatory, Mr. Alves may have taken a different action. The existence of inadequate signage does not establish liability on the part of Her Majesty [MTO]. The discoverability being claimed is not with respect to the existence of the signage, it is discoverability of the consequence of the inadequate signage, which has established the cause of action against Her Majesty.

[ 6 ] Consequently, the plaintiffs submit that the two year limitation period set out in the Limitations Act, 2002 , S.O. 2002, c. 24, Sch. B (the “ Limitations Act ”) has not yet expired and will not do so until June, 2013.

[ 7 ] The MTO argues that the alleged cause of action against it should have been discovered long ago. The Accident took place in January, 2007. It submits that the applicable limitation period in respect of the adult plaintiff expired in January, 2009 and that the applicable limitation period in respect of the minor plaintiffs expired, at the very latest, in December, 2010, two years after the statement of claim was issued and a litigation guardian was appointed to represent the minor plaintiffs. [2] The MTO also argues that the plaintiffs’ failure to give early notice of this claim to the MTO is a bar to the proposed amendments pursuant to section 33(4) of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 (the “PTHIA”).

ANALYSIS

[ 8 ] The relevant provisions of the Limitations Act provide as follows:

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

Basic limitation period

4. 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

5. (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.

Minors

6. The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in relation to the claim.

[ 9 ] Rule 5.04(2) provides as follows:

(2) Adding, Deleting or Substituting Parties - At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[ 10 ] The principles applicable to motions to add parties in circumstances such as those before the court on this motion are set out in the decisions of Master Dash in Wong v. Adler , 2004 ON SC 8228 , [2004] O.J. No. 1575 (S.C.J. – Master); affirmed, 2004 ON SCDC 73251 , [2005] O.J. No. 1400 (Div. Ct.) and Wakelin v. Gourley , 2005 ON SC 23123 , [2005] O.J. No. 2746 (S.C.J. – Master); affirmed, [2006] O.J. No. 1442 (Div. Ct.) .

[ 11 ] At paragraph 45 of Wong , Master Dash states as follows:

45 What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she did not know of and could not with due diligence have discovered the existence of that defendant? In my view, as is clearly implied in Zapfe , the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.

[ 12 ] In Wakelin , at paragraphs 14 and 15 , Master Dash discusses the nature of the evidence required on motions such as this:

14 The question is how much evidence must the plaintiff put in at the pleadings amendment stage to establish that the proposed defendants could not have been identified with due diligence within the limitation period? The short answer is: not very much. As stated by the Court of Appeal in Zapfe : "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" and provide "an explanation for why she was unable to determine the facts."

15 Therefore, as long as the plaintiff puts in evidence as to steps taken to ascertain the identity of the tortfeasors and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence then that will be the end of the enquiry and the defendants will normally be added with leave to plead a limitations defence. This is not a high threshold. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence the motion will be denied. If the plaintiff puts in evidence of steps taken but the proposed defendant also provides evidence of further reasonable steps that the plaintiff could have taken to ascertain the information within the limitation period then the court will have to consider whether the plaintiff's explanation clearly does not amount to due diligence. If there is any doubt whether the steps taken by the plaintiff could not amount to due diligence then this is an issue that must be resolved on a full evidentiary record at trial or on summary judgment. The strength of the plaintiff's case on due diligence and the opinion of the master or judge hearing the motion whether the plaintiff will succeed at trial on the limitations issue is of little or no concern on the motion to add the defendants. The only concern is whether a reasonable explanation as to due diligence has been provided such as to raise a triable issue.

[ 13 ] It should also be noted that the Court of Appeal has held that the passing of a limitation period is fatal to a motion under Rule 5.04 ( 2) . See Joseph v. Paramount Canada's Wonderland , 2008 ONCA 469 at paragraphs 23 and 25 .

[ 14 ] I have considered and applied these principles to the evidence before me on this motion. I have come to the conclusion that this is not an appropriate case in which to grant leave to the plaintiffs to add the MTO as a party defendant. The plaintiffs concede that they could have determined whether or not there were problems with the signage immediately after the accident took place. All they would have needed to do was to send an investigator, or an expert in the field of highway maintenance and signage, to the site of the accident and have him or her assess the adequacy of the signage. Indeed, following Alves’ discovery, the plaintiffs did just that and obtained such an opinion from an engineer.

[ 15 ] However, the plaintiffs argue that it was not until Alves gave his evidence at his examination for discovery that the plaintiffs discovered that the allegedly inadequate signage contributed to the accident, because Alves allegedly failed to reduce his speed or assign any importance to the 60 km/hr sign that was in place. The difficulty I have with this argument is that Alves’ evidence says nothing of the sort. Mr. Alves’ evidence on his examination for discovery is that he saw the 60 km/hr sign and that when he saw the sign, he removed his foot from the accelerator in order to slow down. Nowhere in the excerpts from his examination for discovery that are before the court on this motion does Alves state that he did not assign any importance to the 60 km/hr sign. In fact, it appears that he did assign at least some importance to the sign as he began to slow down. I also note that nowhere in the proposed amendments to the statement of claim is there an allegation that the inadequacy of the signage had any impact on Alves’ failure to slow down or otherwise contributed to his actions. There is simply no evidence from the June 2011 examination to suggest that signage played any role in the accident.

[ 16 ] In my view, the proposed amendments in respect of the claims against the MTO are not really about Alves at all. They are about the signage. The allegedly inadequate signage could have easily been discovered immediately after the accident by retaining an engineer just as the plaintiffs did following Alves’ discovery. In my view, the evidence before the court on this motion indicates that the essential facts that make up the cause of action against the MTO were easily obtainable, with the exercise of even a modest degree of due diligence, immediately after the Accident took place. As a result, it is my view that the applicable limitation period, within which the claims against the MTO should have been made, expired in January, 2009 in respect of the adult plaintiff and in December, 2010 in respect of the minor plaintiffs. The expiry of these limitation periods is fatal to the plaintiffs’ motion based on the authority of Joseph .

[ 17 ] It is never easy to deny minor plaintiffs their right to pursue a claim. This is especially so in circumstances such as these. Mariyan has suffered very serious and permanent injuries which will affect him and his family for the rest of his life. At the same time, however, the clear policy objectives reflected in the Limitations Act must be given their intended effect. I am simply unable to conclude that the plaintiffs’ claims against the MTO were only discovered in 2011. I am therefore not prepared to grant leave to the plaintiffs to add the MTO as a defendant.

[ 18 ] Given this finding, it is not necessary for me to address the MTO’s argument with respect to the notice requirements under the PTHIA .

CONCLUSION

[ 19 ] The plaintiffs are hereby granted leave to amend paragraph 4 and the first sentence of paragraph 8 of their statement of claim in accordance with the draft amended statement of claim at Tab 2 of the plaintiffs’ supplementary motion record. The balance of the relief sought on this motion, including the proposed amendments at paragraphs 6A, 8III and 8A of the draft amended statement of claim at Tab 2 of the plaintiffs’ supplementary motion record, is dismissed.

COSTS

[ 20 ] At the conclusion of the argument of this motion, counsel for the MTO suggested that if it was successful on this motion, it should receive its costs, if requested. In my view, given the MTO’s complete success on this motion, such a costs disposition is fair and reasonable in the circumstances. The plaintiffs shall pay to the MTO its costs of this motion on a partial indemnity basis, if requested. I would, of course, urge the MTO to fully consider the very tragic circumstances surrounding this claim before making any such request.

Master R.A. Muir

DATE: February 10, 2012

[^1]: The plaintiffs also seek leave to make minor amendments to their statement of claim in paragraph 4 and the first sentence of paragraph 8 which do not affect the MTO and do not appear to be contentious.

[^2]: There is no evidence before the court with respect to the date on which litigation guardians were appointed for the minor plaintiffs. However, it is clear that litigation guardians were in place as of December 19, 2008, the date on which the statement of claim was issued.