ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-1015/2010
DATE: 2014-09-22
BETWEEN:
Donna May Auger, by her Litigation Guardian Michael Auger
Plaintiff
– and –
Scott J. Wood
Defendant
The Corporation of the City of Greater Sudbury
Third Party
Greater Sudbury Hydro Plus Inc. and Greater Sudbury Utilities
Fourth Parties
James M. Ross, for the Plaintiff (Moving Party)
No one appearing for the Defendant
No one appearing for the Third Party
Christopher I.R. Morrison, for the Fourth Parties
HEARD: September 12, 2014
DECISION ON MOTION
GAUTHIER j.:
Motion
[1] The plaintiff, Donna May Auger (“Auger”), seeks to add Greater Sudbury Hydro Plus Inc. (“Sudbury Hydro”) and Greater Sudbury Utilities Inc. (“Sudbury Utilities”) as defendants in the within action.
Facts
[2] Auger, a pedestrian, was struck by the defendant, Scott J. Wood (“Wood”) in the early hours of December 8, 2008, on Hanna Street near its intersection with Kelly Street, in the City of Greater Sudbury. She suffered severe injuries as a result of the accident.
[3] Wood provided a statement to the investigating officer at the scene shortly after the event. The following is included in the statement:
The thing that rattles me is that I didn’t see her until the corner. I didn’t see her until I rounded the corner, then I hit my brakes and slid right into her.
[4] Auger retained the law firm of Orendorff and Associates in connection with the accident. On January 7, 2009, counsel requested a copy of the Motor Vehicle Accident Report, including any witness statements, accident reconstruction reports, and photographs or videos taken in the course of the investigation of the accident.
[5] By letter dated January 9, 2009, the Greater Sudbury Police Service provided the Motor Vehicle Accident Report to counsel, but it refused to provide any witness statements. The report indicated that Wood had been charged with a driving offence pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8.
[6] On May 26, 2010, counsel renewed its request for witness statements.
[7] On June 2, 2010, counsel was provided with the written notes of Constable G. Renaud who had investigated the accident. The very first comment contained in the notes under the heading “desc of scene” is this:
Very poor artificial lighting in area of POI
[8] On November 29, 2010, Auger’s nephew, Michael Auger, commenced acting as Auger’s litigation guardian. Michael Auger was not present when Auger was struck by Wood.
[9] The Statement of Claim was issued on December 1, 2010, and an Amended Statement of Claim was delivered on April 20, 2011.
[10] Wood delivered his Statement of Defence and Jury Notice on February 10, 2011. Wood denied any liability for the accident and alleged that Auger either caused the accident or contributed to it by, among other things, having been dressed in dark clothing.
[11] On July 20, 2011, Wood commenced third party proceedings against the Corporation of the City of Greater Sudbury (the “City”), alleging, among other things, that the City failed to have in place a procedure for inspection and clearing of the roadway at the location of the accident.
[12] The City’s Statement of Defence to the third party proceeding and its Statement of Defence to the main action were delivered on September 7, 2011.
[13] On June 28, 2012, Wood was examined for discovery. In the course of the examination, Wood made certain comments regarding the lighting that existed at the location of the accident, and the fact that he had not seen Auger before it was too late to avoid colliding with her.
• At question 110, Wood indicated that he “was coming into the curve and before you know it – and I never seen Donna as I was still traveling on until it was too late. Because of the lights are and then all of the [sic] sudden it gets dark, and then the dark clothing that she was wearing…”
• At question 115, Wood says “I did not see her ‘cause the dark clothing and the poor lighting.”
• At question 135, Wood indicates that “just prior to the curb itself, it’s bright sodium lights and then all of the [sic] sudden it turns dark at the -- right there at the curve and then it’s dark and it’s all dark behind it. And there’s no lighting on that side behind on Kelly street. It just turns dark. And it goes just from brightness to darkness.”
• At question 322, Wood said that he believed that the streetlight on his side of the road, on Young Street near the intersection with Kelly Street, was working at the time of the accident.
[14] A representative of the City was also examined for discovery on June 28, 2012. In a letter dated October 22, 2012, providing information in compliance with undertakings given, counsel for the City advised as follows:
At Tab 85 of the Supplementary Documents Brief is a sketch from Sudbury Hydro indicating the location and distances between the street lights in the area of the accident. Street light C-19480 was reported as being out on November 26, 2008, according to Sudbury Hydro and it was repaired on December 12, 2008. Also attached at Tab 86 is a copy of an agreement between the City and Sudbury Hydro which was in effect in 2008.
[15] The agreement referred to in the letter provides that Sudbury Hydro oversee the street lighting system in Sudbury, including the street lights at the scene of the accident, for compensation. A copy of the agreement was provided to Auger’s counsel.
[16] On November 1, 2012, Auger’s counsel received from Wood an Accident Reconstruction Report from a proposed expert concluding, in part, that the artificial lighting conditions present in the vicinity of the accident scene may have caused or materially contributed to the accident.
[17] On January 28, 2013, Auger’s counsel wrote to the City’s counsel requesting any information relating to the agreement between the City and Sudbury Hydro, and specifically asking whether or not Sudbury Hydro had subcontracted its responsibilities regarding the City’s artificial lighting system. The City’s counsel replied that the information sought was not within the knowledge, possession, power, or control of the City.
[18] On March 11, 2013, the City issued a fourth party claim against Sudbury Hydro and Sudbury Utilities claiming contribution and indemnity from Sudbury Hydro and Sudbury Utilities if there was any breach of the agreement between the City and Sudbury Hydro and/or Sudbury Utilities in the overseeing and maintenance of the City’s street lighting system that caused or materially contributed to the accident of December 8, 2008.
[19] On July 16, 2013, the fourth party defence was delivered. Sudbury Hydro and Sudbury Utilities pleaded that they were, at all material times, in compliance with all agreements relating to street lights and that, all material times, the street light in question was in proper working order.
[20] On July 31, 2013, Auger’s counsel asked Sudbury Hydro’s counsel whether Sudbury Hydro had subcontracted the responsibility for the street lighting system and if so, for the identity of such subcontractor. A follow-up request was made on September 6, 2013 and on September 9, 2013 counsel for Sudbury Hydro advised Auger’s counsel that there had been no subcontracting.
[21] The motion to add Sudbury Hydro and Sudbury Utilities as defendants in the main action was commenced by way of Notice of Motion dated September 20, 2013.
[22] On September 8, 2014, John Michael Bray, the lawyer who was the deponent of the Affidavit in support of the September 20, 2013 motion, was cross-examined.
[23] The motion was fully argued before me on September 12, 2014.
Applicable Legislation and Rules
[24] The relevant provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B are the following:
- 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
- (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.
Incapable persons
- (1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
- If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.
Adding party
- (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[25] The following are the relevant provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED
Proceeding not to be Defeated
5.04 (1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.
Adding, Deleting or Substituting Parties
(2) 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.
GENERAL POWER OF COURT
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
WHEN AMENDMENTS MAY BE MADE
26.02 A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
Non-Contentious Issues
[26] At the outset of the hearing, counsel very helpfully advised that certain matters were not in issue as between the parties.
[27] Firstly, for purposes of the motion, Sudbury Hydro and Sudbury Utilities take no issue with the fact that the plaintiff Auger is an incapable person. Therefore, absent the issue of discoverability, the limitation period began to run on the appointment of Michael Auger as Litigation Guardian on December 1, 2010 pursuant to s. 7 of the Limitations Act.
[28] Secondly, there is no dispute that the Litigation Guardian, who was not present when the accident occurred, has no direct knowledge about the state of the artificial lighting at the scene of the accident. It is also not in dispute that Auger herself has little or no recollection about the state of the lighting at the time she was struck by Wood.
[29] Thirdly, counsel also agree that the special circumstances doctrine, which consists of circumstances warranting amendments to add parties after a limitation period has passed, does not apply in this case.
Issue
[30] Has the plaintiff been reasonably diligent in pursuing her rights against the proposed defendants? Put another way, were sufficient steps taken in investigating the issues relating to liability for the accident of December 8, 2008. The plaintiff has the onus of establishing reasonable diligence.
Auger’s Position
[31] Auger did not know that the defendant Wood relied upon the inadequacy of street lighting at the scene as being a cause of or of materially contributing to the accident until June 28, 2012, when Wood raised the issue of the lighting in the course of his examination for discovery.
[32] Further, it was not until October 22, 2012, that Auger was aware that Sudbury Hydro and Sudbury Utilities may have been responsible for the inadequate lighting.
[33] Nothing in Constable Renaud’s notes explains his reference to the lighting in the area being “very poor”. The officer did not causally connect the accident and the lighting conditions at the time. It is of note that despite the comment about the lighting, Renaud charged Wood with a driving offence pursuant to the Highway Traffic Act.
[34] The evidence about the lighting being causally connected to the accident could not have been discovered, even with due diligence, before June 2012. Paragraph 53 of Auger’s Factum sets out the evidence:
a. The Defendant Wood did not make street lighting an issue until his Examination for Discovery on June 28, 2012;
b. The City of Greater Sudbury did not disclose the contractor until October of 2012;
c. The Plaintiff, Donna May Auger, did not inform Michael [the Litigation Guardian] of an issue with the street lighting that would have put him on notice that it was an issue (it is likely that she does not recall the street lighting at the time in question);
d. Michael [the Litigation Guardian] had no independent knowledge of the street lighting issue;
e. The only reference to the street lighting is in the officer’s notes which only refer to very poor lighting and not to a state of non-repair.
[35] The motion brought on September 20, 2013, is therefore brought within the two year limitation period set out in the Limitations Act.
Sudbury Hydro and Sudbury Utilities’ Position
[36] The plaintiff has not been reasonably diligent in pursuing her rights against Sudbury Hydro and Sudbury Utilities. She has not discharged her burden in seeking to extend the limitation period by the operation of discoverability principles.
[37] One of the issues that Auger’s counsel was tasked with determining was liability for the accident: who was responsible.
[38] One of the potential causes for the accident was Wood’s inability to see Auger. The reason that Wood did not stop and that he struck Auger was relevant and was something that Auger’s counsel would have wanted to determine in the course of the investigation into liability for the accident.
[39] Auger has not led any evidence of any attempts to interview Constable Renaud or any other potential witnesses to the accident.
[40] There is no evidence of any examination of the scene as part of the investigation into liability for the accident.
[41] There were no attempts made before the examination for discovery of a representative of the City to determine who was responsible for the maintenance of street lighting in Sudbury.
[42] The information that Sudbury Hydro is and was responsible for street lighting was readily available to the public from Sudbury Hydro’s website and through the City’s general information telephone line. It would have been simple and logical to make that inquiry of the City at any time after the issue had been identified in Constable Renaud’s notes.
[43] Auger did not retain any expert on the issue of the adequacy of the lighting at the vicinity of the accident.
[44] Auger has failed to provide evidence on or before December 1, 2012 capable of potentially rebutting the presumption found in s. 5(2) of the Limitations Act that her litigation guardian knew about the issue of the lighting within the two year limitation period following his appointment and the issuance of the Statement of Claim.
[45] The motion having been brought nine months later, that is September 2013, must be dismissed.
[46] The motion brought some five years after the accident which is the subject matter of the litigation and three years after the appointment of the litigation guardian is out of time. Auger has not provided a reasonable explanation on the evidence explaining why the identity of Sudbury Hydro and Sudbury Utilities as potential tortfeasors could not have been determined through the exercise of reasonable diligence.
Analysis
[47] Pursuant to rules 5.04(2) and 26.01, a party may be added to a proceeding “unless prejudice would result that could not be compensated for by costs or an adjournment.”
[48] A motion to add must be brought within the applicable limitation period. There is no authority to add parties after the expiry of a limitation period: see Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401.
[49] A person is presumed to have known that the loss or damage sustained was caused, or contributed to, by the person against whom the claim is made on the day the event occurred, unless the contrary is proved: Limitations Act, s. 5(2).
[50] The onus is on Auger to establish “the contrary”. She must establish that she could not, even with reasonable diligence, have discovered the identity and the acts or omissions of Sudbury Hydro and Sudbury Utilities earlier than June and October 2012.
[51] The applicable limitation period is two years from the date Auger or, in this case, her litigation guardian ought to have known that Sudbury Hydro and/or Sudbury Utilities had caused or contributed to the accident of December 8, 2008.
[52] Auger’s Factum at para. 52 concisely summarizes the principles enunciated in Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), Wakelin v. Gourley (2005), 2005 23123 (ON SC), 76 O.R. (3d) 272 (S.C.), and Wong v. Adler (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460 (S.C.) dealing with the test for adding parties after the expiry of the presumptive limitation period and the evidentiary record to be adduced on a motion of this nature:
a. does the evidentiary record before the court raise an issue of fact or credibility on the discovery allegation (Wong);
b. if the issue is due diligence, the matter is more likely to be one which requires the assessment of credibility and, therefore, a trial or summary judgment motion (Wong);
c. if the evidence is clear and uncontradicted that the evidence could have been obtained with due diligence the amendment should not be granted (Wong);
d. the evidentiary record should contain a list of attempts made by the solicitor to obtain information to substantiate the allegation of reasonable diligence (Wakelin);
e. the evidence should provide an explanation for why the facts giving rise to the cause of action could not be determined (Wakelin);
f. the evidentiary record to show reasonable diligence is a modest on (Wakelin).
i. See, Wong at para. 45-45.
ii. See, Wakelin at para. 9-14 & 16.
[53] The issue here clearly is one of discoverability and reasonable diligence.
[54] In Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397, at pp. 403-404, the Court of Appeal had this to say about the principle of discoverability:
The discoverability principle is an interpretive tool of general application which guides the interpretation of limitations statutes. Consideration of whether it applies in a given case is concerned with balancing fairness for both the plaintiff and the proposed defendant. On the one hand, the plaintiff, through no lack of diligence, is unaware of her cause of action prior to the [page404] natural expiry date of the limitation period. In those circumstances, the principle is designed to avoid the injustice of precluding an action or claim before the plaintiff is in a position to commence proceedings. On the other hand, the proposed defendant is entitled to reasonably rely upon limitations statutes in the ordering of its affairs. Application of the discoverability principle postpones the running of a limitation period and therefore precludes the proposed defendant from relying on the protection of the natural expiration of a limitation period: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429. See also Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222 (C.A.), and Consumers Glass Co. v. Foundation Co. of Canada (1985), 1985 159 (ON CA), 51 O.R. (2d) 285, 20 D.L.R. (4th) 126 (C.A.).
At p. 404, the Court went on to describe the policy reasons for statutory limitation of suits from the perspective of potential defendants:
They include: (i) recognition of the fact that there comes a time when a proposed defendant may reasonably expect that it will not be held to account for past obligations…; (ii) the desirable objective of foreclosing claims based on stale evidence, that is, once a limitation period has expired, the potential defendant should be relieved from the need to preserve evidence relevant to the claim…; and (iii) the important public benefit to be achieved by requiring plaintiffs to act diligently and not to “sleep on their rights”, thus fostering the timely commencement of suits and closure of claims…
[55] In dealing with discoverability, and on a motion of this nature, the plaintiff is not required to lead very much evidence to show that she could not have identified the proposed defendants within the limitation period with due diligence: see Wakelin.
[56] Having said that, and although Auger has put in evidence about the steps taken to investigate the cause of the accident, those steps in my view fall short of satisfying the test.
[57] While some issue was taken with the fact that the evidence filed in support of the motion (Affidavits of J.M. Bray) did not come from the counsel having carriage of the case (Thomas L.W. Orendorff), the real issue relates to the substance of the evidence provided, and not so much its source.
[58] Auger’s counsel was retained within one month of the accident. Within counsel’s mandate was the responsibility to investigate liability. Counsel received the Motor Vehicle Accident Report within days of its request for same. The report disclosed that the accident involved a collision between a vehicle and a pedestrian in the early morning hours when there would have been very little, if any, natural light.
[59] More than 15 months elapsed before counsel renewed his request for witness statements. There is no evidence of any attempts made by counsel to further investigate the matter of liability for the accident during that lengthy interval. There was no visit to the scene.
[60] The next event of significance was the receipt of the report of Constable Renaud and the statement provided at the scene by the defendant Wood. I have already referred to the salient portions of those statements.
[61] The statements raise the issue of the plaintiff’s visibility in the early hours of December 8, 2008. Constable Renaud’s very first comment about the “very poor artificial lighting in the area of POI”, combined with Wood’s bewilderment at not having seen Auger before it was too late to avoid striking her, should have raised the possibility that there was an issue around Auger being visible or not. This would entail an evaluation of the amount and sufficiency of artificial light, if any, in the vicinity of the point of impact.
[62] Still, nothing more was done regarding the potential liability of the proposed defendants until the examination for discovery of the representative of the City at which time an undertaking was secured for the City to provide information about location of and distances between streetlights in the area of the accident and about the agreement between the City and Sudbury Hydro dealing with the maintenance of street lights in the city.
[63] Auger points out that Wood did not make street lighting an issue until his examination for discovery, nor did the City disclose its contract with Sudbury Hydro for the maintenance of street lights. I would make the same comment that Lalonde J. made in Lockett v. Boutin, 2011 ONSC 2098, at para. 36:
Waiting for a companion action or waiting for someone to inform you does not satisfy due diligence.
[64] Reasonable diligence requires some positive or active efforts to ascertain the identity of potential defendants or evidence explaining why no such steps were possible: see Zapfe.
[65] As expressed at para. 41 of the responding parties’ Factum:
Even when confronted with the evidence from Wood stating that he did not see Auger, and the police officer’s notes that explicitly stated that the artificial lighting conditions were “very poor”, Plaintiff’s counsel took no action.
[66] Had counsel addressed his mind to the issue of the street lighting according to the evidence, the next logical step would have been to make inquiries of the City. This could have been done as early as June of 2010, well within the presumptive limitation period.
[67] Ignorance of the possible liability of a particular defendant will not extend a limitation period: see Guay v. BHD Financial Group, 2007 37359 (Ont. S.C.).
[68] Information about the responsibility for street lighting was readily and publicly available. No evidence was advanced about why that information could not have been obtained earlier than October 2012.
Conclusion
[69] On the evidence, I conclude that Auger has failed to establish that a reasonably diligent party would not have or could not have discovered the identity and the acts of the proposed defendants within the limitation period. I would dismiss the motion and I so order.
[70] If the parties are unable to agree on costs, the responding parties may make written submissions as to costs within 20 days of the release of these Reasons. The plaintiff will have 10 days after receipt of the responding parties’ submissions to respond. If no submissions are received within this time frame, the parties will be deemed to have settled the issue of costs as between themselves.
The Honourable Madame Justice L.L.Gauthier
Released: September 22, 2014
COURT FILE NO.: C-1015/2010
DATE: 2014-09-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Donna May Auger, by her Litigation Guardian Michael Auger
Plaintiff
– and –
Scott J. Wood
Defendant
– and –
The Corporation of the City of Greater Sudbury
Third Party
– and –
Greater Sudbury Hydro Plus Inc. and Greater Sudbury Utilities
Fourth Parties
DECISION ON MOTION
Gauthier, J.
Released: September 22, 2014