SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-367231

DATE: 2014/07/15

RE: NADARAJAH, Plaintiff, Moving Party

AND:

CITY OF TORONTO, Defendant

BEFORE: MASTER RONNA M. BROTT

COUNSEL:
D. Gilbert, Counsel for the Plaintiff
D. Reid, Counsel for the Proposed Defendant Estate of Alakeswaran
B. Scott, Counsel for the Intervenor Bogo

HEARD: June 25, 2014

ENDORSEMENT

[1] The plaintiffs bring this motion to have all companion actions tried together or one following the other and to amend the Statement of Claim:

(a) to add Birunthan Nadarajah, deceased, by his Litigation Administrator, Muralidaran Nadarajah, as a Plaintiff to the action;

(b) to add Kishoban Alakeswaran, deceased as represented by his Litigation Administrator, proposed to be Alakeswaran Subramaniam, as a Defendant to the action;

(c) to increase the prayer for relief from $200,000.00 each to $1.5 million collectively.

[2] The intervenor Geoffrey Bogo brings a motion on an unopposed basis to intervene on this motion and supports the plaintiff’s motion to add the Estate of Kishoban Alakeswaran as a defendant to this action.

THE FACTS

[3] This action arises out of an incident which occurred on December 20, 2006 at a water retention pond owned by the City of Toronto. On that day, a group of five boys, which included Kishoban Alakeswaran (“KA”), who was 15 years old at the time, and Birunthan Nadarajah (“BN”), who was 11 years old at the time, were at the southern end of the pond. KA walked onto the pond which appeared to be frozen. The ice broke and he fell into the water. BN went onto the ice in an apparent attempt to save KA. In doing so, the ice broke under him and he too fell into the water. Both KA and BN drowned.

THE ACTIONS

[4] Solicitor Bogo was retained by the plaintiffs in this action and on November 27, 2008 he commenced the within action by way of a Statement of Claim issued on behalf of the Nadarajah family against the City of Toronto, claiming damages pursuant to the Family Law Act in the amount of $200,000.00 for each claimant. A Statement of Defence was delivered on September 7, 2010. This action proceeded to mediation on July 18, 2012 and at that time the City of Toronto took the position that it was not liable and that liability, if any, rests with the deceased KA.

[5] On December 8, 2008 solicitor Himelfarb, retained by the family of KA, issued a Statement of Claim on behalf of the Alakeswaran family against the City of Toronto and the Regional Conservation Authority claiming damages pursuant to the Family Law Act. The City of Toronto defended the action on January 13, 2010. The action proceeded through examinations for discovery and mediation, and it was set down for trial. The trial date was recently vacated in order that the action may be tried together with the other actions arising out of the December 10, 2006 incident.

[6] On August 8, 2012 a further Statement of Claim was issued by Mr. Bogo on behalf of the Nadarajah family as against the Estate of Alakeswaran.

[7] On June 27, 2013, after the Nadarajah family had retained new counsel, a solicitors’ negligence claim was issued against Mr. Bogo and his law firm, Laxton Glass.

Motion to Add the Estate of KA as a defendant

LAW

[8] Rule 5.04(2) of the Rules of Civil Procedure provides:

“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.”

[9] Pursuant to Section 4 of the Limitations Act 2002, the applicable limitation period for personal injury actions is two years. The same limitation period applies to actions commenced by or against estates pursuant to section 38 (3) of the Trustee Act. Section 20 of the Limitations Act 2002 provides that the act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.

[10] Although the leading decision of Joseph v Paramount Canada’s Wonderland 2008 ONCA 469, [2008] O.J. No 2339 (C.A.) determined that the doctrine of special circumstances no longer applied to cases falling under the (then) new Limitations Act 2002, caselaw has held that the doctrine of special circumstances continues to be available under the Trustee Act to add a party after the expiry of a limitation period (Bikur Cholim Jewish Volunteer Services v Penna Estate, 2009 ONCA 196). The Court of Appeal’s decision in Bikur, supra, has been followed on a number of occasions.

Special Circumstances

[11] Given that the doctrine of special circumstances is applicable under the Trustee Act, the factual circumstances must be reviewed in light of the within action. In Mazzuca v Silvercreek Pharmacy Ltd., 2001 8620 (ON CA), 56 O.R. (3d) 768 (C.A.) Cronk, J.A. stated:

“…where the evidence establishes that the party to be affected by the amendment has not been misled and will not suffer non-compensable prejudice other than that occasioned by the inability to rely on the limitation defence, amendments to pleadings have been permitted following the expiry of limitation periods including amendments designed to add, delete or substitute plaintiffs or defendants…”

Many of the cases also emphasize, even absent proof of prejudice to the party to be affected by the amendment, the requirement that the applicant establish special circumstances to support the amendment sought and to displace the opposing party’s entitlement to rely upon a limitation period established by statute.”

[12] With respect to what constitutes special circumstances, Cronk J.A. quoted as follows from Deauville v Boegeman, 1984 1925 (ON CA), 1984, 48 O.R.(2d) 725 (C.A.)

“A number of Courts have made rather heavy weather out of the meaning of “special circumstances” and have sought to establish conditions or detailed guide-lines for the granting of relief after the expiry of the limitation period. This is a discretionary matter where the facts of the individual case are the most important consideration in the exercise of that discretion. While it is true that the discretion is not one that is to be exercised at the will or caprice of the court, it is possible to outline only general guide-lines to cover the myriad of factual situations that may arise.”

[13] Accordingly, for the plaintiff to succeed to add a party after the expiry of the limitation period the plaintiff must show that special circumstances exist and there must be an absence of prejudice to the defendant.

[14] The plaintiff and the intervenor submit that special circumstances exist which justify adding the Estate of KA as a defendant to this action. The proposed defendant submits that there are no special circumstances.

[15] KA’s estate is insured by Co-Operators General Insurance Company pursuant to a homeowner’s policy. It is their evidence that the first notice given to KA’s estate and the insurers with respect to the claims arising from the December 2006 incident was on or about February 6, 2013. Relying on Ioannou v Evans, 208 CarswellOnt 18 (S.C.J.) the proposed defendant, Estate of KA asserts that the “circumstances justifying amendments after a limitation period has passed will be rare…” and special circumstances are “the facts of the particular case that make it in the interests of justice to, in effect, displace the defendant’s entitlement to rely upon a limitation period defence.” Furthermore, “the court may consider the totality of the factual background to the proceedings. The conduct and circumstances of the parties are relevant considerations…”

[16] Shortly after the incident, there were numerous published newspaper articles describing BN as a hero and in July 2008 a park was named in his honour. The defendant accordingly denies the existence of special circumstances submitting that solicitor Bogo failed to make use of information which was readily available to him.

[17] There is jurisprudence which notes that negligence or inadvertence by a solicitor or plaintiff has been rejected by the courts as amounting to special circumstances which would justify the exceptional act of adding a party to an action after the expiration of a limitation period. (Swiderski v Broy Engineering Ltd., 1992 CarswellOnt 400 (Div.Ct.), Laso v Toronto Transit Commission, 1998 CarswellOnt 1632 (Gen.Div.) ).

[18] In my view the doctrine of special circumstances does not require a plaintiff to demonstrate due diligence in discovering the cause of action prior to the expiration of the limitation period. The conduct of the solicitor is but one factor to be considered. It is the conduct of the proceedings as a whole which must be reviewed – taking into account both the special circumstances and the presence or lack of real prejudice to the defendants. In the circumstances of this proceeding, Mr. Bogo’s evidence is that he failed to turn his mind to naming KA as a defendant as he was focused on the City of Toronto who had neither alleged negligence on behalf of the Estate of KA nor commenced Third party proceedings against the Estate of KA.

[19] A review of the special circumstances of these proceedings reveals the following:

(a) The Estate of KA commenced its own separate action and has been involved in these proceedings since on or about December 9, 2008;

(b) The City of Toronto, which is a defendant both in this action and in the action brought by the Estate of KA, delivered a Statement of Defence in this action in September 2010 which did not allege negligence against KA nor did the City of Toronto issue a Third Party Claim against the estate of KA;

(c) There is no prejudice to the Estate of KA if it is added as a defendant to this action;

(d) BN died in the course of a heroic act, when he was seeking to rescue KA;

(e) The within action was commenced within two years from the date of the incident (the date that BN died, and the date that KA died);

(f) The Nadarajah plaintiffs were not present at the scene and therefore had no direct knowledge of the circumstances leading to BN’s death;

(g) There has been delay but no want of prosecution.

Prejudice

[20] In Wong v Adler, 2004 CarswellOnt 1522 (Master), Master Dash undertook a detailed review of applicable jurisprudence when a plaintiff seeks to add another party to the action after the expiration of a limitation period. On the issue of prejudice he stated at paragraph 13:

• “There is a presumption of prejudice after the passage of a limitation period, however slight, which may be rebutted with evidence that the defendant “knew within the limitation period, of the case and the nature of the claims now being made against him.”

• The defendant would then be required to show actual prejudice. Absence of prejudice, by itself does not establish special circumstances and both factors must be proven.”

[21] The proposed defendant asserts that the plaintiffs have failed to discharge their burden of proving an absence of prejudice to KA’s estate as the availability and quality of eyewitness testimony has been irreparably compromised given the passage of more than five years between the accident and notice. They submit that it is even more acute given that the key witnesses were in their early teenage years at the time of the incident.

[22] The proposed defendant does not provide any identification or particulars with respect to witnesses. Further their evidence is silent as to whether any effort was made to ascertain liability information from KA’s plaintiff action.

[23] As well, the proposed defendant – here, The Co-Operators – attempts to distinguish between itself as an insurer and the named proposed defendant. It alleges prejudice due to the late notice of the claim and the insurer’s inability to investigate. Late notice to a party versus to an insurer should not be differentiated. The Limitations Act 2002 speaks of when a “party’ knew or ought to have known”. Here, the party (family of KA) clearly knew of the incident and in fact, commenced their own action within the limitation period.

[24] The plaintiff submits that no prejudice will be suffered by KA’s estate and further, that the proposed defendant has failed to discharge its burden to prove actual prejudice.

[25] In my view, the plaintiff has satisfactorily rebutted the presumption of prejudice and the defendant has failed to provide evidence of real prejudice. I find no prejudice for these reasons:

(a) The within action was commenced within two years from the date of the incident/the deaths of the boys;

(b) There is an existing action against the Estate of KA;

(c) Adding the proposed defendant does not amount to a final determination of the limitation issue;

(d) Both BN and KA are deceased therefore their recollections about the incident are moot;

(e) There will be no delay as there will be no additional examinations for discovery that are required;

(f) The estate of KA commenced its own action within the limitation period. Liability investigation information is therefore available.

(g) The brother of the deceased KA was examined for discovery on behalf of the plaintiffs in the Family Law KA estate action. Certainly if his evidence was satisfactory for that purpose, it can be used if and when the Estate of KA is a named defendant.

(h) The City of Toronto has been a defendant from the inception. Investigation information is available from them.

(i) There has been full production and discovery in the action commenced by the Estate of KA, all of which is available to the Estate of KA as defendant.

[26] Taking into account the totality of the factual background of this case, the cumulative effect of the various factors, and the conduct and circumstances of the parties, leave is hereby granted to amend the Statement of Claim to add Kishoban Alakeswaran, deceased as represented by his Litigation Administrator, proposed to be Alakeswaran Subramaniam, as a Defendant to the action. The interests of justice are best served by permitting the amendment.

Motion to add BN as plaintiff

[27] The proposed defendant submits that the plaintiffs’ solicitors’ evidence is weak asserting that simply because he failed to turn his mind to adding the estate as a plaintiff is an inadequate explanation. In the same way that the addition of the estate of KA is a discretionary remedy taking into account special circumstances and prejudice, the same test is applicable with respect to the addition of BN as plaintiff. Order to go granting leave to add Birunthan Nadarajah, deceased, by his Litigation Administrator, Muralidaran Nadarajah, as a Plaintiff to the action.

Trial Together

[28] On an unopposed basis the within action shall be tried together with Alakeswaran et al. v City of Toronto (Court File No. CV-08-368152) (Order made previously) and Nadarajah et al. v Bogo et al. (Court File No. CV-13-483637).

[29] The action commenced by Mr. Bogo identified as Nadarajah et al. v Alakeswaran (Court File No. CV-12-460775) shall be dismissed with costs, but such an Order must be made by a Judge due to the involvement of a minor.

Costs

[30] Counsel shall, within 30 days, attempt to agree on the issue of costs. If they are unable to agree, then the moving parties’ counsel shall deliver brief (1-2 pages) written costs submissions together with a Costs Outline to the proposed defendant (and to the court) within 45 days, and the responding party shall deliver brief one to two page written submissions and a Costs Outline within 15 days thereafter. Reply costs submissions require leave.

(original signed)

MASTER RONNA M. BROTT

Date: July 15, 2014.