ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Hannan v. Toronto (City), 2015 ONSC 1875
COURT FILE NO: CV-10-410729
DATE: 20150324
B E T W E E N:
Carol Hannan and Rachel Ross
Plaintiffs/Respondents
- and -
City of Toronto
Defendant/Appellant
Noah Shapiro,
for the Plaintiffs/Respondents
Ryan D. Truax,
for the Defendant/Appellant
HEARD: March 20, 2015
WHITAKER J.
[1] This appeal is brought by Maple-Crete Inc., a proposed defendant to this action.
[2] The appellants bring this appeal following the endorsement of Master Abrams dated November 12, 2014 in which she granted leave for the plaintiffs to amend the statement of claim to add the proposed defendants, Maple-Crete Inc., and A&F DiCarlo Construction Inc. as defendants. The defendant, City of Toronto, and proposed defendant, A&F DiCarlo Construction Inc., took no position with regards to the plaintiffs’ motion. The facts are uncontested.
[3] On September 20, 2008, the plaintiff allegedly tripped and fell in a depression on the south-west corner of Woodmount Avenue and Virginia Avenue. Six days later on September 26th, plaintiff’s counsel put the City on notice as required by section 44(10) of the Municipal Act. In November of 2008, the City Adjuster responded by advising that the City would investigate the matter and requested further particulars from the plaintiffs. Having received no response from the plaintiffs, the City followed up on April 14, 2009 and eight months after the City’s first request for particulars, plaintiffs’ counsel responded on July 24th. On September 17, 2010 – three days before the 2 year limitation was to expire – the plaintiffs issued a statement of claim solely against the City. There was no claim against John Doe Contractor. A statement of defence was provided on April 20, 2011. On April 29, 2011, counsel for the City advised plaintiffs’ counsel that there might be a third party and requested further information concerning the plaintiff’s fall. On August 15, 2011, the plaintiff provided the City with 3 Google Map images of where she fell. Other than that, the plaintiffs continued to rely solely on the City to investigate the identity of the contractor.
[4] On June 20, 2012, the City advised the plaintiff that there were three potential defendants: Enbridge, Maple-Crete and A&F DiCarlo. Maple-Crete was not put on notice until more than a year later on August 23, 2013.
[5] In July 2012, the plaintiff requested that the City provide a copy of the contract between the City and Maple-Crete. On September 26, 2012, the City followed up with plaintiffs’ counsel and asked whether the City intended to add the contractor, Maple-Crete, as a defendant. On April 19, 2013, the plaintiff unilaterally scheduled a motion to add the proposed defendants to the action.
[6] Maple-Crete first received notice about the plaintiffs’ claim when it was served with the plaintiffs’ motion record on August 23, 2013.
[7] On June 10, 2014, Maple-Crete and the plaintiffs appeared before Master Abrams. The Master adjourned the motion to August 8, 2014 so that A&F DiCarlo could be properly served. Master Abrams further endorsed the adjournment of the day’s motion was not the fault of Maple-Crete.
[8] The respondent takes the position that there are two issues to be decided. First, what is the standard of review to be applied in this case where it is an appeal from a Master’s order, and secondly, did Master Abrams properly apply the test on a motion for leave to amend the statement of claim to add a party to an action?
[9] It is well accepted that an appeal is not a rehearing of a matter put before the Court. Questions that arise on appeal are considered in light of the standard of review.
[10] The standard of review in this case is the same as it would be for a motion brought before a judge. In order words, where the Master has erred in law the standard of review should be correctness. Whether or not the decision was final or interlocutory and whether or not it was vital to the disposition of the lawsuit with respect to findings of fact and findings of fact and law, the decision under appeal cannot be reversed unless the trier of fact has made a palpable and overriding error. In Housen v. Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33, the Supreme Court of Canada indicated that a Court is not free to interfere with the facts or conclusion that it disagrees with where such a disagreement stems from a difference of opinion or the weight to be assigned to the underlying facts. The standard is justifiably a high one. If it were to be otherwise, there would be a greater degree of uncertainty thereby reducing the usefulness of court proceedings. The respondent submits that in this particular case, the standard of review is very clearly one of correctness and the only remaining question to be heard is whether Master Abrams properly applied the test to grant leave to amend the statement of claim to add a further party as set out in the Rules of Procedure.
[11] A party can only be added to an action pursuant to Rule 5.04(2). Rule 26.01 allows for amendments of a pleading, but does not permit a party to be added. While a plaintiff must also give evidence concerning discoverability on a Rule 26.01 motion, it does not mean the requirements of a Rule 26.01 motion are the same as they are for Rule 5.04(2). In Pepper & Zellers Inc., (2006) 2006 42355 (ON CA), 83 O.R. (3d) 648 C.A., the Court of Appeal drew a distinction between a Rule 5.04(2) motion and one brought under Rule 26.01. Speaking for the Ontario Court of Appeal, Justice Lang stated that a Rule 5.04(2) motion to add parties is discretionary and the threshold on 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 day of the limitation. The applicant states, and I agree, that the discretion to add defendants after the expiry of the limitation period should be exercised sparingly and is the exception rather than the rule. A plaintiff seeking to add a proposed defendant outside the 2-year limitation period must provide a reasonable explanation as to why the identity of the proposed defendant was not obtainable with due diligence. If due diligence is not sufficient then the plaintiff’s motion will fail.
[12] The appellant claims that the Master failed to give appropriate weight to the long period of time that it took the plaintiffs’ counsel to bring the motion, put the parties on notice, and properly serve the material.
[13] The respondents do accept that Rule 5.04(2) provides the Master with the discretion as to whether or not to allow an amendment. They respectfully submit that Master Abrams properly considered the legal test for leave to amend a statement of claim.
[14] It is not an error in law for a Master to exercise a discretionary authority to apportion weight to the evidence. As the respondents suggest, this appears to be a case where the appellant is seeking a second chance to have the matter heard.
[15] In summary, the Master certainly had evidence before her which would permit the conclusion that she should exercise her discretion to permit the addition of a third party at the particular point in the litigation. The standard of review is one of correctness. The Master appropriately identified the applicable principles of law and applied them to the facts before her. The appeal is dismissed. As agreed by the parties, the parties were able to agree as to costs. The respondent is entitled to $10,000 inclusive of taxes and disbursements, payable forthwith.
WHITAKER, J.
DATE: March 24, 2015
CITATION: Hannan v. Toronto (City), 2015 ONSC 1875
COURT FILE NO: CV-10-410729
DATE: 20150324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Carol Hannan and Rachel Ross
Plaintiffs/Respondents
- and -
City of Toronto
Defendant/Appellant
REASONS FOR DECISION
WHITAKER J.
Released: March 24, 2015