SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-4305
DATE: 2013 07 16
RE: Justine Villanueva
v.
Chun-Yip Pang,
Sin-Yee Ho,
Wawanesa Insurance
BEFORE: Lemon J.
COUNSEL:
Silvy Fernando, for the Plaintiff
Ryan J. Coughlin, for the Defendants
ENDORSEMENT
The Issue
[1] The plaintiff seeks to amend her Statement of Claim by removing the present defendants and adding the defendant, John Chapman. The defendants consent to the order removing them without costs, but they dispute the request to add Mr. Chapman as a party defendant.
[2] The motor vehicle collision that forms the basis of this action occurred on October 1, 2010; outside the relevant two year limitation period. The defendants submit that there is no evidence before the court to demonstrate that the claim was not discovered or could not reasonably have been discovered prior to the expiration of the limitation period.
Background
Plaintiff’s Position
[3] As there is an issue as to whether the plaintiff has put forward sufficient evidence for the request, I shall include the affidavit evidence that relates to this issue as follows:
I am a Student-at-Law at Anushika Anthony Professional Corporation and as such have knowledge of the matters to which I hereinafter depose. Where the facts set out in this affidavit are based upon information provided by others, the source of this information has been stated, and I verily believe the facts to be true.
I was told and verily believe that this action involves a motor vehicle collision that occurred on or about October 1, 2010 in which the Plaintiff was a driver.
We have been retained by the Plaintiff on August 20, 2012 to further pursue his Tort/Bodily Injury claim. The Plaintiff was only able to provide his copy of the Self-Reporting Collision Report.
Since the two-year limitation period was approaching and in order to protect the Plaintiff’s claim, a Statement of Claim was filed on September 28, 2012 in the Superior Court of Justice in Brampton as per the Self-Reporting Collision Report received from the Plaintiff. The Self-Reporting Collision Report listed Plaintiff Justine Villanueve as the driver and the named Defendants Chun-Yip Pang and Sin-Yee Ho as the other driver and owner of the vehicle, respectfively.
I was told and verily believe, on or about December 21, 2012, Mr. Ryan J. Coughlin of Bell, Temple Barrister & Solicitors, counsel representing the named Defendants Pang and Ho, served our firm with a Notice of Intent to Defend and requested a waiver with respect to filing their Statement of Defence.
On or about January 4, 2013, our firm received draft Affidavit of Documents and Schedule “A” productions for Defendant Pang from Mr. Coughlin, counsel representing Defendants Pang and Ho. Upon review of the above-mentioned documentation, it was discovered that there was another party involved in this accident and that the accident was actually a multi-vehicle collision involving four vehicles.
On or about January 10, 2013, our firm sent a letter to Mr. Coughlin, counsel representing the named Defendants Pang and Ho, requesting consent to amend the Statement of Claim to remove named Defendants Pang and Ho, and Wawanesa Insurance and add the correct defendant, Mr. John Chapman.
Mr. Coughlin, counsel representing the named defendants did not consent to our requests for amending the Statement of Claim and informed us that we cannot now sue the correct defendant, Mr. John Chapman, as the limitation period has expired. Mr. Coughlin represents Defendants Pang and Ho on behalf of Wawanesa Insurance. The correct defendant, Mr. John Chapman, it’s also insured by Wawanesa Insurance.
Pursuant to section 5 (1) (a) (iii), Limitations Act 2002, “A claim is discovered on the earlier of the day on which the person with the claim first knew that the act or omission was that of the person against whom the claim is made.” Since it was discovered, on or about January 4, 2013, that Mr. John Chapman was driving the vehicle that hit the plaintiff’s vehicle, the two year limitation period starts from that date. Therefore, we trust that adding Mr. John Chapman as a defendant is within the limitation period.
Defendants’ Position
[4] In response to the plaintiff’s affidavit, the proposed defendant, Mr. Chapman, also filed an affidavit. His affidavit sets out as follows:
The plaintiff has started an action claiming damages for injuries allegedly sustained in the accident. I note that in paragraph 7 of the Statement of Claim, the plaintiff alleges that the accident occurred when the plaintiff was stopped at a red light “when suddenly and without warning the Defendant’s Vehicle violently collided with and rear-ended the Plaintiff’s Vehicle”.
My blue Chevrolet Cobalt sustained significant front end damage in the accident.
The plaintiff’s vehicle was a 1996 white Honda Civic. The plaintiff’s vehicle sustained rear-end damage in the accident. I saw that damage at the scene. I also received photographs of the damage from the collision reporting centre. The rear end damage to the plaintiff’s car depicted in the photograph was as the vehicle appeared after the accident.
Two other vehicles were involved in the accident. I understand that a 2000 Volvo being operated by Luca Zampini was struck by the plaintiff’s vehicle after the impact between my vehicle in the plaintiff’s.
The named defendant, Chun-Yip Pang, was driving a 2007 White BMW 2-door vehicle that was also involved in the accident. Pang’s vehicle sustained some minor damage as depicted in the photographs. These photographs were provided by the collision reporting centre and show how the Pang vehicle looked at the scene of the accident when I observed it. There was no other damage to the Pang BMW that I recall other than the minor damage shown in the photographs.
All of the drivers exited their vehicles at the scene of the accident. I spoke with the plaintiff and the police at the scene of the accident. It was abundantly clear, given the resting position of the vehicles in the damage to the vehicles, that my vehicle was vehicle that collided with the back of the plaintiff’s vehicle and caused the plaintiff’s rear-ended damage.
It was abundantly clear at the scene of the accident to me (and would have been clear to the other drivers) that Pang’s white BMW was not the vehicle that struck the rear of the plaintiff’s vehicle. [References to exhibits removed]
[5] Surprisingly, the plaintiff did not file a reply affidavit.
[6] Also included in both parties’ materials was the Self-Reporting Collision Report. That Report shows that four vehicles were involved in the accident, that a supplementary form was attached (but not included), and that the only other vehicle referred to was a white BMW, rather that the string of four vehicles actually involved.
Legal Principles
[7] The test to consider discoverability issues on a motion to amend pleadings was set out by Master Dash in Guay v. Bhd Financial Group, 2007 37359 at para. 3 (ONSC) and adopted by Glithero J. in Hughes v. Kennedy Automation Ltd., 2008 8603 at para. 24 (ONSC) and adopted by Glithero J. in Hughes v. Kennedy Automation Ltd., 2008 at para. 24 (ONSC), aff’d 2008 ONCA 770, 170 A.C.W.S. (3d) 724.
If a Plaintiff wishes to add a Defendant on the basis 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 such Defendant, she must provide an evidentiary record such that the court may determine if there is an issue of fact or of credibility on the discoverability allegation. If the court determines that there is such issue, the Defendant should be added with leave to plead a limitation 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 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, the Plaintiff must advise what steps were taken to identify the existence and name of the Defendant and provide a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence more than two years before the motion to amend. If the Plaintiff fails to provide a reasonable explanation on proper evidence that could on it generous reading amount to due diligence or if the evidence is clear from material provided by both the moving and responding parties that the Plaintiff could have obtained the requisite information with due diligence, such that there is no issue of fact or credibility that requires a trial, the amendment will be refused. [footnotes omitted]
[8] In Wakelin v. Gourley, (2006), 2005 23123 (ON SC), 76 O.R. (3d) 272 (S.C.), aff’d [2006] O.J. No. 1442 (Div. Ct.), Master Dash said:
…”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.” I left open a window however to challenge the addition of a defendant based on due diligence “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.” It will be rare that the applicability of the discoverability principle based on due diligence will be determined on a motion to add a party. The third parties claim however this is exactly such a “clear and uncontradicted” case.
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 than 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 than the court will have to consider whether the plaintiffs 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 than 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 in 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.
As stated in Zapfe, in a motion of this nature one expects the plaintiff or his solicitor to provide “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.” The solicitor has an obligation to give evidence of all steps taken to ascertain the identities of the proposed defendants. I must therefore assumed that the above facts constitute the entirety of such steps
As I indicated the burden is not high at the amendment states to establish that there is at least a triable issue on due diligence. 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 than that will be the end of the enquiry and the defendants will normally be added with leave to plead a limitations defence.
Discussion
[9] In my view, the plaintiff has failed to provide a reasonable explanation as to why the proper defendant was not found in time.
[10] Mr. Chapman has shown that it was obvious to the plaintiff that more than one car was involved and that the white BMW of the Pang defendants was not the vehicle that struck the plaintiff. That evidence is uncontradicted. There is nothing in the record that explains the delay by the plaintiff to retain counsel. There is nothing to show what steps were taken by counsel between the time of retainer and January 4, 2013 to ascertain the identity of this defendant; even to review the Collision Report in full to determine that there were other defendants.
[11] Accordingly, the motion to add Mr. Chapman is dismissed. The motion to remove the present defendants is granted.
[12] If the parties cannot agree on costs, written submissions of no more than three pages (not including any offers to settle or Bills of Costs) may be provided to me by the defendants within 15 days. The plaintiff may respond within 15 days after receipt of the defendants’ submissions.
“Justice Lemon”
Lemon J.
DATE: July 16, 2013
COURT FILE NO.: CV-12-4305
DATE: 2013 07 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Justine Villanueva
v.
Chun-Yip Pang,
Sin-Yee Ho,
Wawanesa Insurance
BEFORE: LEMON J.
COUNSEL: Silvy Fernado, for the Plaintiff
Ryan J. Coughlin, for the Defendants
ENDORSEMENT
Lemon J.
DATE: July 16, 2013