Madden et al. v. Holy Cross Catholic Secondary School et al.

[Indexed as: Madden v. Holy Cross Catholic Secondary School]

Ontario Reports

Ontario Superior Court of Justice,

Leitch J.

April 17, 2015

126 O.R. (3d) 69 | 2015 ONSC 1773

Case Summary

Civil procedure — Parties — Adding parties — Expiry of limitation period — Plaintiff injured while watching son's high school football game from sidelines — Plaintiff suing school, principal and director of physical education — Plaintiff bringing motion more than two years after accident to add referees and officiating associations as defendants — Motion granted — Live issue existing as to whether plaintiff was aware or could have discovered with reasonable diligence within limitation period that referees might be partly responsible for safety of spectators.

The plaintiff was injured while watching her son's high school football game from the sidelines when a player allegedly ran out of bounds and violently collided with her. She sued the school, the principal, the director of physical education and others. More than two years after the incident, she brought a motion for leave to add the officiating referees and their associations as defendants. Her counsel swore an affidavit in which she deposed that it was not until the examination for discovery of the principal and the physical education director that it was revealed that the referees and/ or the officiating associations were to some extent responsible for the safety of spectators.

Held, the motion should be granted.

Actions against referees are rare. The potential liability of the proposed defendants was never raised by the other defendants until their examination for discovery. Discoverability was a live issue in this case.

Cases referred to

Chouinard v. O'Connor, [2011] B.C.J. No. 568, 2011 BCCA 121, 302 B.C.A.C. 10, 5 C.P.C. (7th) 1, 200 A.C.W.S. (3d) 7; Henderson v. Canadian Hockey Association Inc., [2010] M.J. No. 24, 2010 MBQB 20, 249 Man. R. (2d) 146, [2010] 8 W.W.R. 756, 184 A.C.W.S. (3d) 1159; Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 241 O.A.C. 29, 166 A.C.W.S. (3d) 762; Mazzuca v. Silver Creek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567, 207 D.L.R. (4th) 492, 152 O.A.C. 201, 15 C.P.C. (5th) 235, 109 A.C.W.S. (3d) 880 (C.A.); Olinski v. Johnson (1997), 1997 CanLII 603 (ON CA), 32 O.R. (3d) 653, [1997] O.J. No. 926, 98 O.A.C. 69, 69 A.C.W.S. (3d) 774 (C.A.); Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648, [2006] O.J. No. 5042, 278 D.L.R. (4th) 175, 39 C.P.C. (6th) 81, 154 A.C.W.S. (3d) 336 (C.A.); Skrobacky (Litigation guardian of) v. Frymer, [2014] O.J. No. 3658, 2014 ONSC 4544 (Div. Ct.); Smyth v. Waterfall (2000), 2000 CanLII 16880 (ON CA), 50 O.R. (3d) 481, [2000] O.J. No. 3494, 136 O.A.C. 348, 4 C.P.C. (5th) 58, 99 A.C.W.S. (3d) 877 (C.A.); Zapfe v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397, [2003] O.J. No. 2856, 230 D.L.R. (4th) 347, 174 O.A.C. 211, 35 C.P.C. (5th) 317, 39 M.P.L.R. (3d) 161, 41 M.V.R. (4th) 171, 124 A.C.W.S. (3d) 262 (C.A.)

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1), (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 2.01, 5, 5.04(2), 26, 26.01

MOTION for leave to add defendants.

Natalie Kingston, for plaintiffs.

Mikel Pearce, for defendants Canadian Football Officials Association, Lakeshore Football Officials Association, Ontario Football Officials Association, John Doe 3, John Doe 4 and John Doe 5.

[1] LEITCH J.: — The plaintiffs move for an order for leave to add the Canadian Football Officials Association, Lakeshore Football Officials Association, Ontario Football Officials Association, John Doe 3, John Doe 4, and John Doe 5 as defendants to this action and for leave to amend the statement of claim accordingly.

[2] The proposed defendants oppose the motion.

[3] The defendants take no position.

Background Facts

[4] Rebecca Madden was injured on September 20, 2011 while watching her son's football game at Holy Cross Catholic Secondary School. It is alleged that a player from the school's football team ran out of bounds and violently collided with her.

[5] In the statement of claim issued on September 19, 2013, the plaintiffs allege that the defendants owed a duty of care to Rebecca Madden to see that she was reasonably safe while observing a football game.

The plaintiffs' evidence on this motion

[6] Ms. McAuley, counsel for the plaintiffs, swore an affidavit in support of this motion in which she deposed that at the time the statement of claim was issued, the plaintiffs had no knowledge of the role/responsibilities of the officiating associations whose representatives/employees/ volunteers act as referees at the football game and accordingly no claim was made against the referees or the officiating associations of the game.

[7] As Ms. McAuley noted, the statement of defence does not include a third party claim nor does it make any reference to the role/responsibility of the officiating associations.

[8] In her affidavit, Ms. McAuley further deposed that it was not until the examination for discovery on August 13, 2014 of Mr. Zaroda, the principal of Holy Cross Catholic Secondary School, and Mr. Walker, the program director of athletics and physical education, that it was revealed that the officiating associations and/or the referees were to some extent responsible for the safety of spectators on the date of the incident. Shortly thereafter, notice was provided to the various football officials associations of the plaintiffs' intention to include them as defendants in this action.

[9] Ms. McAuley swore a supplementary affidavit in which she reiterated that the underlying facts upon which a claim of negligence against the proposed defendants could be advanced was not known until the examination for discovery of the defendants and the plaintiffs were not provided with any indication, information or documentation from the defendants to suggest or stipulate that the proposed defendants bore any responsibility for the spectators' safety at the time of the incident. Attached to her affidavit was correspondence from counsel for the defendants confirming that the defendants did not have any information about the involvement of the proposed defendants in relation to spectator safety prior to the examination for discovery and the defendants had not provided the plaintiffs with any productions that would have revealed a potential cause of action against the proposed defendants prior to the examination for discovery of the defendants.

The evidence of the proposed defendants on the motion

[10] Mr. Miller, counsel for the proposed defendants, swore an affidavit in opposition to this motion in which he deposed that three out of the four officials who were at the game in question do not recall the incident and the fourth official cannot be located. He attached to his affidavit statements obtained from two of the officials along with the excerpts of the adjuster's report regarding the other two officials.

The Relevant Rules

[11] In addition to rules 1.04 and 2.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the plaintiffs rely on rule 5.04(2), which permits the court to add a party at any stage of a proceeding on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. Additionally, they rely on rule 26.01, which provides that at any stage of an action the court shall grant leave to amend the pleading on such terms as are just unless prejudice would result that could not be compensated for by costs or an adjournment.

The Relevant Provisions of the Limitations Act

[12] Pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day in which the claim was discovered.

[13] Section 5(1) describes when a claim is discovered:

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).

[14] Subparagraph (2) of s. 5 is also relevant on this motion and provides as follows:

5(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.

[15] In Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, the Court of Appeal made clear that the common law doctrine of special circumstances reiterated in Mazzuca v. Silver Creek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.) can no longer be utilized to extend a limitation period prescribed in the Limitations Act. Therefore, the provisions of Rule 5 and Rule 26 must be applied and interpreted in accordance with the Limitations Act.

The position of the parties on this motion

[16] The plaintiffs rely on rule 5.04(2), which permits the court to add a party at any stage of a proceeding on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment, and rule 26.01, which provides that at any stage of an action the court shall grant leave to amend the pleading on such terms as are just unless prejudice would result that could not be compensated for by costs or an adjournment.

[17] The position of the plaintiffs is that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know with the exercise of due diligence, the fact, or facts upon which his or her claim is based and the determination of whether the limitation period begins to run is one of fact (see Smyth v. Waterfall (2000), 2000 CanLII 16880 (ON CA), 50 O.R. (3d) 481, [2000] O.J. No. 3494 (C.A.), at para. 8; and Zapfe v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397, [2003] O.J. No. 2856 (C.A.)).

[18] The plaintiffs' position is that they did not know, and cannot reasonably be expected to know, prior to August 2014 of the facts upon which to base a claim against the proposed defendants.

[19] Paragraph 25 of the plaintiffs' statement of fact and law sets out the plaintiffs' position that based on the evidentiary record provided by the plaintiffs, there exists issues of fact or of credibility as to whether the material facts on which the plaintiffs' proposed claim against the proposed defendants could have been discovered by the plaintiffs by the exercise of reasonable diligence until on or after September 20, 2013 (being the date two years prior to the motion being brought). The plaintiff references the following to support their assertion that they had exercised due diligence:

(a) upon being retained, plaintiffs' counsel promptly interviewed the witnesses in order to gain a fulsome understanding of the events that transpired on the day of the accident;

(b) plaintiffs' counsel commissioned legal research to determine what entities and individuals owe a duty of care to spectators at sporting events in order to establish the parties in this matter who are liable for the injuries sustained by Rebecca Madden; and

(c) plaintiffs' counsel reviewed the applicable legislation to determine what parties owed a statutory duty to take reasonable steps to ensure that spectators at the game, including Rebecca Madden, were reasonably safe.

[20] The plaintiffs submit that they are entitled to leave of the court to amend their claim as proposed without prejudice to the proposed defendants to plead the limitation defence.

[21] The plaintiffs submit there can be no prejudice to the proposed defendants from such an order. With respect to the issue of prejudice, the plaintiffs note the following, at para. 31 of their factum:

(a) The Canadian Football Officials Association, Lakeshore Football Officials Association, Ontario Football Officials Association, John Doe 3, John Doe 4 and John Doe 5 were present at the scene of the incident on September 20, 2011;

(b) The Canadian Football Officials Association, Lakeshore Football Officials Association, Ontario Football Officials Association, received a timely notice of claim letter dated September 5, 2014, and October 10, 2014, respectively, providing them with notice of a potential claim; and

(c) Examinations for discovery of the plaintiffs have not yet been completed, and the Canadian Football Officials Association, Lakeshore Football Officials Association, Ontario Football Officials Association, John Doe 3, John Doe 4 and John Doe 5 will have full opportunity to participate in such discoveries when scheduled.

[22] The proposed defendants' position is that not only ought prejudice be presumed because the limitation period has expired but the proposed defendants have provided evidence of actual prejudice by virtue of the presentation of the evidence in Mr. Miller's affidavit.

[23] The proposed defendants emphasize that there is no affidavit from Rebecca Madden herself and they question the adequacy of the discoverability efforts presented by the plaintiffs querying whether inquiries were made respecting agents, contractors and servants of the defendants and whether there were any witnesses commented about or asked about referees.

[24] The proposed defendants refer to a decision of the Ontario Court of Appeal in Olinski v. Johnson (1997), 1997 CanLII 603 (ON CA), 32 O.R. (3d) 653, [1997] O.J. No. 926 (C.A.), where it was found that a sports team's obligations extend beyond the playing surface to the areas around the playing surface and submit that, by analogy, it is at least arguable that the defendants, and by extension its referee contractors the proposed defendants, have obligations to those on the sidelines at a football game.

[25] They also refer to a Manitoba case (Henderson v. Canadian Hockey Association Inc., [2010] M.J. No. 24, 2010 MBQB 20) which considered whether a player might have obligations to a referee in the context of the referee being injured by a player in a hockey game and a B.C. case (Chouinard v. O'Connor, [2011] B.C.J. No. 568, 2011 BCCA 121) which then considered a negligence claim by an injured player against referees.

[26] As set out, in para. 8 of their factum, the proposed defendants assert that "in the context of these decisions, while it appears that it is still undecided as to whether the referees may have obligations to spectators at a football game, it is respectfully submitted that this is a matter of plaintiffs' counsel choosing not to proceed against the referees, knowing they existed (all high school football games are refereed), rather than not having any evidence to point to liability".

Disposition

[27] In my view, these are not circumstances where it can be said that the plaintiffs had actual knowledge of a potential claim against the proposed defendants within two years of the incident. There is no evidence that the defendants took the position that the referees were responsible for the incident. While the proposed defendants set out in their factum that all high school football games are refereed and the plaintiffs' counsel knew referees were present, I cannot find, as the proposed defendants contend, that the failure to bring a claim against the proposed defendants was the result of the plaintiffs' counsel simply choosing not to proceed against the referees.

[28] I agree with the position of the plaintiffs on this motion that ultimately the issue will be whether the plaintiffs ought to have known about the claim against the referees earlier than it did. The plaintiffs have met their evidentiary burden of satisfying me that there is a discoverability issue in relation to their cause of action against the proposed defendants.

[29] In Skrobacky (Litigation guardian of) v. Frymer, [2014] O.J. No. 3658, 2014 ONSC 4544 (Div. Ct.), Then J. referenced, at para. 15 the decision of the Court of Appeal in Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648, [2006] O.J. No. 5042 (C.A.), where Lang J.A., at para. 14, stated the following:

. . . a Rule 5.04(2) motion to add parties and, in this case, to add parties after the apparent expiration limitation period, is discretionary. While the threshold in such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.

[30] To paraphrase the words of the Ontario Court of Appeal in Pepper, supra, I am satisfied that there is a live issue of fact respecting the commencement date of the limitation period in relation to the plaintiffs' claim against the proposed defendants.

[31] It is fair to say that actions against referees and an assertion that they owe a duty of care to spectators are rare. The supplementary affidavit contains confirmation that potential liability of the proposed defendants was never raised by the other defendants until the examination for discovery. This supports the plaintiffs' position. I am satisfied that the plaintiff has met the low threshold described by Lang J. A. in Pepper.

[32] I am satisfied that counsel for the plaintiffs has presented sufficient evidence for me to be satisfied that the plaintiffs were reasonably diligent such that I can find that there is a live issue of fact respecting discoverability of the plaintiffs claim against the proposed defendants.

[33] I am also satisfied that granting the relief sought will not result in non-compensable prejudice to the proposed defendants. Considering what has transpired in the action thus far; that discoveries have not yet been completed; that the identity of the referees are known and they have been interviewed; that they perform their duties in accordance with a manual or rule book, my discretion should be exercised in favour of the plaintiffs.

[34] For these reasons, the plaintiffs' motion is allowed. The proposed defendants are added to the action and the statement of claim shall be amended accordingly. This leave to amend is granted without prejudice to the proposed defendants to plead and ultimately argue a limitations defence.

Costs

[35] Counsel have agreed that costs in the amount of $3,000 should be awarded to the successful party, to be paid within 30 days of the date of judgment.

[36] Accordingly, the proposed defendants shall pay to the plaintiffs costs in the amount of $3,000 within the next 30 days.

Motion granted.