SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-CV- 423978 and 10-CV-417169
Heard: November 25, 2014
RE: Lima v. Moya and Mata v. Moya
BEFORE: Master Joan Haberman
COUNSEL: Kealy, M. for the moving party
Asselin, T. for the responding party
REASONS
Master Haberman:
[1] The plaintiffs in these two actions move to add Isaac and Washington Andrade as defendants to each claim.
[2] Both actions arise following a motor vehicle accident that occurred in Toronto on July 25, 2009. At the time of the accident, both plaintiffs Jonathan Lima and Karla Mata were passengers in a vehicle operated by the proposed defendant, Isaac Andrade (“Isaac”). The defendant, Washington Andrade (“Washington”) owns the car they were all traveling in.
[3] There were two vehicles involved in this accident. One was the Andrade car. The other was owned and operated by the defendant, Moya, who, at the time of these events, was not insured.
[4] Mata’s action was commenced by statement of claim, issued on December 23, 2010 by lawyer, Anu Bakshi, while Lima did not start his action until April 7, 2011. Kelly Campbell, who works with Bakshi, is his counsel. It is not clear why one counsel did not act for both plaintiffs. In addition to these two actions, a third action was commenced by Isaac as a result of the injuries he sustained in the accident.
[5] Although both Lima and Mata were aware from the outset that Isaac was the driver of the car they were traveling in, neither of them named Isaac or Washington as defendants to this action when issuing process. The purpose of these motions is to try to correct that now, 5 ½ years after these events and well beyond the expiry of two-year limitation period.
[6] The plaintiffs rely on the evidence of their two counsel, Campbell and Bakshi. Both maintain they she saw no basis for including the proposed defendants in the actions at the time they were commenced or for adding them to the actions until after Isaac was examined for discovery in 2013. They therefore rely on the doctrine of discoverability as the basis for seeking the amendments at this late date.
PRELIMINARY ISSUE – SCHEDULING of THESE MOTIONS
[7] The motions were not heard until November 25, 2014. The responding party raises this as a factor to be considered by the court. The following is the lead up to the hearing:
[8] It appears from the Case History that this motion was first booked for July 17, 2013, but this date was adjourned at the responding party’s request. Though booked months earlier, the motion was served within the timelines permitted by the Rules, but only just so, leaving little time for responding evidence and no time for cross-examinations, generally considered an important step in motions of this kind.
[9] The matter was put over to my list for January 23, 2014, but again adjourned, this time, by me as counsel wanted the two matters heard together but had not booked adequate time. I put them over for a total of two hours, one hour for each, to April 22, 2014.
[10] Campbell neglected to confirm her motion so it was marked as withdrawn and adjourned yet again, this time to September 11, 2014. Thus, three adjournments were therefore required as a result of what plaintiffs’ counsel did or failed to do.
[11] By September 11, 2014, point, further materials had been filed so that counsel were now of the view that they needed 3 hours for the two motions. The motions were adjourned a 4th time, to November 25, 2014, 16 months after the initial hearing date.
[12] Much of this delay could have been avoided had the plaintiffs served their material in plenty of time to allow for the intervening steps and had they consulted with responding counsel regarding the amount of time they would need to argue these motions.
[13] Though Ferrier J. stated, in Philippine/Filipino Centre of Toronto v. Datol 2010 ONSC 956, that the parties’ rights are crystalized at the date of service of a motion, those comments arose in the context of a motion record that was served within the limitation period. There, the court was of the view that the delay that transpired thereafter could not be held against the moving party and the matter should be treated as amendments sought within the limitation period.
[14] In the motions before this court, the delays attributable to the plaintiffs occurred after the limitations period had already expired, unless discoverability is made out. If it is made out, scheduling delays are not relevant, on the merits of these motions, as long as the hearing date took place within two years of the trigger event that starts the limitation period running.
[15] In view of my finds set out below, these matters do not fall within that scenario. As a result, the delay in getting these motions before the court, while demonstrative of an approach that was less than stellar in the handling of these files, is not germane to the outcome of the motions. This issue may impact on costs, however, as it led to multiple unnecessary court attendances.
LIMA ACTION
EVIDENCE
Campbell’s evidence
[16] The motion in the Lima file is supported by the affidavit of Kelly Campbell, sworn July 5, 2013.
[17] She notes that she obtained the Motor Vehicle Accident Report on September 1, 2009, before commencing suit, so very soon after the accident and well before the expiry of the applicable limitations period.
[18] Pleadings were exchanged in the main action and on August 12, 2011, the defendant, Economical issued a third party claim against Isaac and Washington in the Lima action. They alleged, among other things, that Isaac was not keeping a proper lookout and that he could have avoided the accident using reasonable skill and care. Thus, almost 3 ½ years ago, it was clear that Isaac’s competence as a driver was being called into question in this litigation.
[19] Pleadings were exchanged in the third and fourth party actions and the two actions proceeded first to oral discoveries in February 2013 and then to mediation in October 2013.
[20] In her affidavit evidence Campbell explains why she elected not to sue the Andrades at the outset. She states that she reviewed the Motor Vehicle Accident Report on September 1, 2009, and it contained no indication that Isaac did anything that could be viewed as negligent. It was the Moya vehicle that crossed the centre median into Isaac’s lane, striking Isaac’s car and it was Moya who was charged with dangerous driving, as well as failure to remain at the scene of the accident.
[21] Requests for police records pertaining to the event were denied pending resolution of the criminal charges. This is standard practice by polices services since the Court of Appeal’s decision in R v. Wagg, as a result of the Ontario Freedom of Information and Protection of Privacy Act (the Act).
[22] I note that Campbell did not bring a Rule 30.10 Wagg motion at that time, which may have given her early access to her own client’s statements to the police. In any event, the criminal charges against Moya were disposed of by December 10, 2010, still within the limitation period. Moya was convicted of careless driving and failure to remain at the scene of the accident.
[23] From that point on, it would have been open to Campbell to have successfully argued a Rule 30.10 Wagg motion to gain access to much of the police/Crown file. Once the Criminal Code charges are disposed of, police services are generally amenable to providing the documents sought, subject to certain exemptions and a court order. This practice has been in place for a number of years. It is well known to personal injury practitioners and was so by this time. These motions appear regularly in our motions courts.
[24] No Wagg motion was brought by the plaintiffs here, however, and there is no mention of it even having been considered. Though Campbell received what she viewed as heavily redacted copies of the police file on March 20, 2011, and though the criminal charges had already been resolved by that time, she brought no Rule 30.10 Wagg motion. On her reading of the documents she did receive, there was still nothing to suggest that the Andrades should be added as defendants and it seems Campbell was content to look no further.
[25] Instead, it appears that Campbell waited for the defendant, Economical, to bring the Wagg motion, which they did, but not for some time. That motion was heard on November 26, 2011, resulting in a consent order. At that point, in excess of 800 pages of police notes and records were released to Economical, who, in turn, provided copies to Campbell. She received the package on April 5, 2012, so more than a year after receiving the heavily redacted documents. There is no explanation in the evidence for why Campbell failed to bring a Wagg motion in March 2011 or at any time thereafter, but instead, waited for Economical to do so. That did not occur until 8 months later.
[26] The documents disclosed by the police in March 2011 make it clear that there was an error on the Motor Vehicle Accident Report – the speed limit in the vicinity was actually 50 km/hour, not 60 as originally noted. In view of Isaac having stated that he had been traveling at 65 km/hour, it was clear at this point that he was driving well in excess of the speed limit.
[27] A review of the new documents obtained in April 2012 indicates that Moya had fallen asleep at the wheel and had lost control of his vehicle. Salient points from the accident reconstruction report noted that there was no indication of braking by either car and that it was not possible to determine their speeds at the time of impact. While the report concludes that the accident could have been avoided, it does not explain how or by whom.
[28] Among the materials obtained from Economical’s Wagg motion was a copy of the statement that the plaintiff, Mata, had given to the police on the day of the accident. Mata was a front seat passenger in Isaac’s car, while Lima was in the back seat. Mata had been talking to Lima just before the accident, but she advised the police as follows:
Then all of a sudden I turned around and I saw the car coming towards us with bright lights. And I told my friend, I’m like watch out, then he tried to move the car out of the way. And then I can’t remember anything else.
[29] Mata’s statement is confirmed by Lima, who recalled Mata making a pointing gesture.
[30] This raises the obvious question: if Mata only saw the car after she turned to face front, but in sufficient time to yell to Isaac to watch out, why hadn’t Isaac seen the Moya car himself before that?
[31] Oral discoveries did not take place until almost a year after these records were obtained, in February 2013. In the almost one year between Campbell getting the Mata statement and discoveries, there is no indication that either Campbell or Bakshi were in touch with their respective clients to get a more in depth understanding of what took place in the car that night.
[32] When Isaac was examined, he advised that he had been told he needed corrective lenses, but had not yet obtained them before the accident. Campbell’s evidence does not say if Isaac was told he needed them for distance, hence, for driving, rather than for reading, but he apparently did say he saw more clearly after he got the glasses. He was not asked in what way, however.
[33] Isaac also explained when examined how it was that Mata saw the Moya vehicle before he did:
We were having a conversation and Karla (Mata) said something to me, so I looked towards her, and while I looked towards her she said “look out”. And by the time I turned my head, all I saw was headlights and the impact happened.
[34] It was only on receipt of these new facts - that Isaac needed but had not yet bought them the accident and that he had been looking towards Mata just before impact- that Campbell finally appreciated she had a basis to add the Andrades, hence this motion.
[35] Campbell wrapped up her evidence by claiming there would be no prejudice to Isaac or Washington as both were already named as third parties to the action in August 2011.
[36] In a supplementary affidavit, sworn in January 2014, Campbell notes that both her clerk and Bakshi’s requested the police notes and that the two had agreed to share whatever information they obtained in response. She includes as exhibits letters sent by various staff members in pursuit of these records between March 22, 2010 and March 8, 2011, as well as notes of phone conversations with a Mr. N. Cusi of the TPS, ending on March 15, 2011. Again, it is unclear why this path was chosen when the personal injury Bar was well aware by this time that the most expedient and effective route for obtaining police records was a Wagg motion.
[37] Campbell noted in her earlier evidence that she received the heavily redacted file only days later (in March 2011), and she appears to have been content with that as she took no steps to pursue these documents further, waiting, instead, for Economical to bring the necessary Wagg motion in order to get the remainder of the file.
[38] Campbell’s evidence then moved to scheduling issues. She states that she began taking steps to add the two proposed defendants immediately after Isaac’s oral discoveries in February 2013 and she had her clerk write to counsel to advise of her intent in that regard. Around the same time, a motion slot was requested from the court. At that time, the July 2013 date was booked.
[39] The motions materials for both this and the Mata motion, copious in view of the nature of the issues and the possible ramifications, were not served until July 8, 2013 for a hearing only 9 days later. I am hard pressed to understand why counsel did not anticipate that this would lead to a request to adjourn, as was the case.
[40] In fact, counsel for the responding party wrote to Campbell by e-mail upon receipt of the motion materials, stating as follows:
I am now in receipt of your motion materials. As you know they have been served to me quite late in the game (sic). I asked for the materials to be served several weeks ago and this morning I sent a letter asking for an adjournment. I did not know Mata was bringing a similar motion until a few days ago. Too (sic), how did Mata get on the motion scheduling list, what time is booked for both motions? In any event, I ask to hear from you by tomorrow morning as to your position. I will otherwise file a responding affidavit and ask for an adjournment in person on July 17, 2013.
[41] Although this correspondence is attached as an exhibit, Campbell does not comment on its contents. What Campbell does say is that she agreed to the adjournment provided delay caused by the request was not relied on. Responding counsel agreed, on the basis that the matter was booked early in the new year. As the affidavit was sworn in January 2014, the subsequent 10 month delay is not referred to.
[42] Campbell addresses the issue of prejudice again, though, this time noting that the plaintiffs agreed to limit their claims to the policy limits should they (the plaintiffs) be successful in adding them. The wording of the letter makes it clear that there was no agreement to limit the claims in return for the motions proceeding on consent.
Gluek’s Evidence
[43] Charles Gluek acts for the Andrades, in their capacity as third parties in the Lima action.
[44] He begins his evidence by pointing out an important fact that Campbell had omitted from her evidence:
On September 8, 2009, Lima’s lawyer wrote by registered mail to Isaac Andrade it order to notify him that a claim for personal injuries was to be commenced against him as a result of the said July 25, 2009 accident.
[45] Nowhere in Campbell’s evidence or supplementary evidence does she address why she had initially thought to include the Andrades but then had a change of heart. The fact that her letter was sent after she had received the Motor Vehicle Accident Report raises this issue squarely, yet it is not addressed.
[46] When the claim was issued, Campbell included only Moya, the other driver; Wawanesa, who provides uninsured motorist coverage, and Economical, Lima’s OPCF insurer.
[47] Bakshi, who had issued the Mata claim a few months earlier, did not give notice to Isaac or Washington or include them as defendants.
[48] Economical decided that the Andrades should be included, so they added them as third parties in August 2011.
[49] After setting out this background, Gluek discusses what he presents as “traditional practice” in the context of motor vehicle litigation. He states:
My belief is that it is traditional practice in motor vehicle lawsuits for plaintiffs to sue all the drivers and their owners involved in their accidents. They do not know what evidence will come out at discovery or from other sources as to who is negligent. This practice is especially important where it is known that the target defendant does not have insurance.
[50] Gluek points out that both Campbell and Bakshi obtained the Motor Vehicle Accident Report on September 1, 2009 and that it indicated the maximum speed in the area of the accident was 60 km/hour. The report lists Isaac’s speed on impact at 65 km/hour. On that basis there was an indication even then that Isaac was traveling in excess of the speed limit – that, alone, should, have been enough for him to have been named as a defendant in the circumstances of a case against an uninsured driver.
[51] Police records obtained in March 2011 indicate that the actual speed in the vicinity was only 50 km/hour, so that if Isaac was traveling at 65 km/hour as he stated, he was driving at 15 km/hour in excess of the limit. In Gluek’s view, this certainly ought to have been enough for the proposed defendants to have been added earlier.
[52] Gluek also points out that efforts to obtain the police records stopped in 2010, and there is no indication that either plaintiff ever bought a motion to compel production of same. He states that it was Economical’s motion that led to the release of the police records, produced to their counsel in January 2012, and distributed to other counsel in April of that year.
Cross-examination of plaintiffs’ counsel
[53] Both Campbell and Bakshi admitted the following:
o There was a need to pursue uninsured coverage as Moya was not insured;
o They believed the speed limit where the accident occurred was 60 km/hour, but that Isaac was travelling at 65 km/hour on impact;
o On reviewing the redacted police notes in March 2011, both learned that the speed limit was only 50 km/hour, such that Isaac was possibly travelling 15 km/hour above the allowable speed.
[54] Bakshi acknowledged she was aware that where the target defendant is uninsured it is prudent to find another defendant who can be found at least 1% liable, because if the OPCF 44R insurer can establish 1% liability on anyone else, they can argue they are not obligated to pay the claim. According to Gluek, Campbell was not aware this was the case.
[55] Bakshi believes she talked to Mata about not suing Isaac before the claim was issued. Campbell has no recollection of having received instructions from Lima not to sue the Andrades.
THE LAW
[56] The motion is brought under Rule 5.03(4), which states that:
The court may order that any person who ought to have been joined as a party or whose presence is necessary to enable the court to adjudicate effectively and completely on issues in the proceeding shall be joined added as a party.
[57] Unlike other forms of amendment, dealt with under Rule 26.01, the court has discretion when asked to allow the addition of parties. Contrary to what the plaintiffs assert here, the absence of prejudice is not the guiding factor when exercising that discretion, as the court must recognize and give effect to limitation periods.
[58] It is s. 21(1) of the Limitations Act, S.O. 2002 Ch. 24, Schedule B. that applies:
If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding as a party to any existing proceeding.
[59] The applicable limitation period here is two years, as per s. 4, of the Act, so it expired in July 2011, subject to the application of the discoverability doctrine. The Act states that a party is presumed to have known of all necessary matters to start its claim on the day on which the act or omission on which the claim is based occurred, so that the plaintiff bears the onus of establishing that the presumption should be ousted.
[60] Discoverability is discussed in s. 5(1)(b) of the Act, which states that:
A claim is discovered on the earlier of 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).
[61] Case law has interpreted first ought to have known to mean would have found out had they used reasonable diligence. Thus, a plaintiff is bound to start his claim within two years of becoming aware of the material facts on which it is based having been discovered, or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. (see Central Trust Co. v. Rafuse 1986 CanLII 29 (SCC), [1986] 2 SCR 147).
[62] Where the plaintiff relies on their failure or inability to learn all of the facts they deem necessary to start their claim against a particular defendant, the onus is on him to lead cogent evidence to the effect that it would have been inappropriate or abnormal for him to have investigated further during the life of the limitation period (see Mercurio v. Smith [2011] OJ No. 5040).
[63] In Aguonie v. Galion Solid Waste 1998 CANLII 954, the Ontario Court of Appeal discussed the why discoverability was a necessary addition to the law of limitations. One of the scenarios considered was a case where the seriousness of the injuries sustained by a plaintiff was not clear within the two-year limitation period. Thus, though it might appear that a plaintiff was aware of all of the elements to allow the him to know he had a claim and against whom it should be brought within the limitation period, the essential ingredient of whether his injuries were serious enough to pass threshold may not have crystalized during that time frame. In such cases, the court was of the view that the deadline for starting the action should be extended until he could know, and discoverability principles were used as a basis for doing so.
[64] The Court of Appeal has also looked at cases where identifying tortfeasors was the issue, pointing out that:
The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability.
[65] Again, the plaintiff will be held to a standard of having used reasonable diligence to obtain this information.
[66] It is also understood that, in certain types of actions, identifying possible defendants is not always a straightforward exercise. For example, in medical malpractice cases, hospital charts may be illegible or not all medical staff in an operating room or on duty in the emergency room may be identified. In slip and fall actions, it may take time to determine all possible occupiers, or those contractually bound to maintain the upkeep of the property where the accident occurred.
[67] It is understood that there will be cases where the plaintiff is not even aware that he is missing critical information leading to the identity of a possible defendant until examinations for discovery so he cannot be found at fault for failing to pursue further information (see Madrid v. Ivanhoe Cambridge Inc. 2010 ONSC 2235.
[68] As the court pointed out in Western Mercantile Financial Corp. v. Ernst & Young Inc., 1999 ABQB 144, 11, CBR (4th) 149, not every item of evidence to support the plaintiff’s claim need be known before the limitation period commences to run.
[69] Similarly, in Lawless v. Anderson, 2011 ONCA 102, the court stated:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered” and the limitation begins to run.
…Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement.
[70] Further, in The Investment Administration Solution Inc. v. Silver Gold Glatt & Grosman LLP 2011 ONCA 658, the Court of Appeal pointed out that discovery of new facts that might help the plaintiff’s case does not restart the limitation period.
[71] In summary, as long as the identity of a potential tortfeasor is known and there is some information on which a court could make a finding of liability, there is no room for discoverability to delay the starting point of the limitation period. Having enough information to form an allegation of negligence is quite different from having a winning case against a particular defendant – it is only the former that is required for the limitation clock to start running.
[72] Further, while new information may emerge down the road that strengthens the case against the proposed defendant, this will not restart the clock. A plaintiff should not wait until he has a good case against a defendant before starting a claim against him – as long as he has a case he can try to make, he must move within the limitation period.
[73] In terms of what does and does not constitute due diligence in assessing whether grounds to sue a particular individual exist, Master Dash noted in Wakelin v. Gourley et al 2005 CanLII 23123 (ON SC), 76 OR (3d) 272, that if all the plaintiff does during the two years after an accident in order to identify tortfeasors is request a copy of the police report, that will not constitute reasonable diligence.
[74] The plaintiffs rely on the case law that dictates the approach the court should take when dealing with motions such as there, where the issue of discoverability is on the table and there is a credibility issue. They maintain that the case law suggests that leave should be granted to add the proposed party, while also allowing the defendant to plead the expiry of the applicable limitation period.
[75] However, it appears clear that such an approach is only advocated when there is an issue of credibility that has to be resolved regarding who knew what and when, such that a trial is a better mechanism for resolving the issue (see Wong v. Sherman [1998] OJ No. 1534). The “let it go and flesh out the facts at trial” approach is only appropriate when the basis for the discoverability of the claim must be explored in more depth and the evidence about it needs to be tested.
[76] I should not have to point this out in 2015, the plaintiff’s only salvation in the face of an expired limitation period is the application of the discoverability doctrine. The doctrine of “special circumstances” was clearly laid to rest in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, a decision of the Ontario Court of Appeal released in February 2008. Cases that talk about lack of prejudice are generally dealing with special circumstances so the presence or absence of prejudice really is not a factor here. When dealing with discoverability, the issue is whether someone discovered, or ought to have, that they have a claim, along with the essential elements that go with it to enable them to start an action. This is a fact-based analysis.
ANALYSIS and CONCLUSION
[77] The accident occurred on July 25, 2009, so this action had to have been commenced on or before July 25, 2011 to meet the limitation period.
[78] The accident involved two vehicles and the owner/driver of the target vehicle was not insured at the time of loss. As a result of the application of the 1% rule on these facts, being aware of the involvement of other possible tortfeasors was important.
[79] I accept Gluek’s evidence regarding common practice among personal injury practitioners – it is common to sue all owners and drivers of all involved vehicles. His understanding accords with my own, developed over many years on the Bench and my early years of practice in this area. Even without Gluek’s evidence on this point, it is something I would have taken judicial notice of.
[80] This common practice is particularly important in cases where the only obvious tortfeasor was uninsured at the time of the accident. If there is anyone else who could be found only 1% liable for the accident, there is a significant risk if a plaintiff fails to name them. This is the starting point for these motions.
[81] Campbell had the Motor Vehicle Accident Report in hand on September 1, 2009, well within the limitation period. It revealed, based on Isaac’s statement to the police, that he was traveling 5 km/hour above the speed limit. Though this is a minor infraction, one no driver would ever be stopped for and one most of us commit much of the time, it was a hook on which a plaintiff could have hung an allegation of negligence, and an important hook in view of Moya’s lack of insurance.
[82] Thus, from the outset, there was information available that could have formed the basis of an allegation of negligence. Though this, in itself, would not likely lead to a finding of liability, that is not what discoverability is about – the law is clear that the plaintiff did not have to have a winning case in order to include a defendant, only enough facts on which to base an allegation of negligence, as per Lawson, supra.
[83] Clearly, Campbell had considered including Isaac and Washington as defendants at the outset as she wrote to them on September 8, 2009, putting them on notice. She did this one week after she obtained the above report, yet she provides no explanation for why, after having received the report, she put them the Andrades on notice, but then dropped out from the frame when the claim was issued.
[84] The identity of the Andrades, as the owner and driver of the vehicle in which Lima and Mata were traveling were known to both plaintiffs from the outset. The fact that Isaac was traveling in excess of the speed limit was also known, as was the fact that Moya was not insured.
[85] In my view, the plaintiff had all he needed to include Isaac and Washington as defendants to this action from the start. There is no basis to delay the start of the limitation period based on discoverability based on the legal test.
[86] Before the expiry of the limitation period, Campbell was also alive to the fact that there had been a police investigation, in view of the criminal charges, so there would have been a Crown brief and other related materials.
[87] However, instead of bringing a Rule 30.10 Wagg motion, a proceeding she ought to have been and likely was familiar, she left it to her and Bakshi’s clerks to pursue these records, which they did – by phone calls and letter requests.
[88] Because of the governing legislation, only very limited access can be provided by police services in response to letter requesting documents, while the Act itself, provides that the restrictions from disclosure dictated by privacy concerns are subject to court order. Wagg motions are therefore the most effective way to obtain access to these materials and have been for many years. I often have two or more on a regular motions list. Personal injury counsel are well aware of the procedure and both Campbell and Bakshi are known to me practicing largely if not exclusively in that area.
[89] Campbell did receive some disclosure from the police, notwithstanding her failure to bring a motion before the court for production, but as she notes in her evidence, what she received was heavily redacted. She was aware of Isaac’s identity, but she apparently did not believe she had any basis for suing him. Even if that were the case, it appears that she failed to avail herself of the best way of getting confirming that, via a Wagg motion.
[90] In any event, notwithstanding the redactions, what was clear from these records received on March 20, 2011 so still within the limitation period, was the fact that the speed limit in the vicinity of the accident was only 50 km/hour, not 60 as noted on the Motor Vehicle Accident Report. As a result, if Isaac was traveling at 65 km/hour as he stated, he was actually driving 15 km/hour above the limit. At this point there were clear grounds for adding the now proposed defendants to this pleading – Campbell had all of the information she needed to be able to see that Isaac could be found partly at fault for these events. Even if the lion’s share of liability lay with Moya, had Isaac been traveling within the speed limit it is possible that the accident could have been avoided as he would have had more time to take evasive action – there was certainly a basis to plead that.
[91] At that point, Campbell ought to have taken three essential steps:
She ought to have brought a motion to add the Andrades, as it now appeared that the speed limit was 10 km/hour lower than she had believed, so that Isaac was traveling 15 km/hour above it;
She ought to have brought a Wagg motion to see what else the police records contained; and
She ought to have spoken with her client about the newly discovered information about speed.
[92] She does not appear to have undertaken any of these steps.
[93] The criminal charges against Moya were resolved in December 2010, so from that point on a Wagg motion would have yielded access to a significant portion of the police records pertaining to these events, certainly far more than the heavily redacted materials received in March 2011. Yet, neither Campbell not Bakshi brought the motion.
[94] Thus, even if the plaintiff was of the view that there was nothing to implicate Isaac and Washington so as to justify their inclusion in this action at the outset, Lima was aware of their identities and the fact that they were the driver and owner of an involved vehicle. In order to refute the presumption that Lima knew all he had to know to start the action against the proposed defendants before the expiry of the limitation period, he had the onus of demonstrating that he used reasonable diligence to find out all relevant facts, so that he could say, unequivocally, that Isaac and Washington could bear no responsibility for the accident.
[95] Having failed to bring a Wagg motion once that path was open to him, Lima failed to meet that onus. I therefore find that even if there was justification for not including the Andrades from the outset, the failure to bring a Wagg motion at this juncture amounts to a lack of due diligence, such that discoverability cannot be relied on.
[96] In August 2011, Economical issued a third party claim against Isaac and Washington. Though a month after the expiry of the limitation period, this was yet another item that Campbell ought to have considered. Yet there is no evidence from Campbell that she paid any attention to this development; that she contacted their counsel to found out his reasoning or that she reviewed the file to see if she was missing anything. This was another opportunity missed.
[97] It was Economical that eventually brought the Wagg motion in November 2011, and they had the documents in hand by January 2012, which they provided to Campbell on April 5, 2012.
[98] It was only on receiving these documents that Campbell learned of Mata’s statement to the effect that , as a front seat passenger, she had been turning to the back to speak with Lima, and that it was only after she turned to face forward again that she saw the Moya car, yelled for Isaac to watch out and noted that this was when he tried to get out of the way.
[99] Even these facts do not appear to have prompted Campbell to take action. Lima is her client and Mata is Bakshi’s. Surely each ought to have spoken with their respective client at the time they were each retained to take a thorough and detailed statement about events leading to the accident. Even if they failed to do so at that time, on seeing this statement, they each ought to have talked to their respective client about what was going on in the car just before impact. Surely there should have been some inquiry about why Mata saw the Moya car before Isaac started to take evasive action. Had both counsel talked to their clients at that time, they would have had a further basis for adding these two at that time.
[100] But Campbell maintains that it was not until examinations for discovery that she realized she had a basis for this motion and formed the intention to add the Andrades. She claims that at discoveries, she learned that Isaac needed glasses but had not yet acquired them – though it is not all clear what it was he needed them for: driving or reading.
[101] It was also at discoveries that Campbell learned that Isaac had been looking towards Mata while she had been speaking, something she may have been able to find out from Mata years earlier, had she used due diligence.
[102] On the basis of the applicable legal test, I am unable to accept that Campbell had no basis to commence suit against Isaac and Washington until she obtained this information. In my view, she ought to have included the two from the outset, or, at the very latest, after receipt of the first tranche of police documents in March 2011, when learning that Isaac had been traveling well in excess of the speed limits.
[103] Based on these facts and the applicable legal principles, there is no basis to apply the doctrine of discoverability here. There is also no basis to allow the addition of these parties and defer the limitation issue to trial, as there is no credibility issue on which these findings depend. Campbell is clear in her evidence and it is not in dispute – it is simply not enough to meet Lima’s onus.
[104] I therefore find that the motion to add Isaac and Washington to the Lima action fails.
MATA ACTION
Evidence
[105] The Mata motion is supported by the evidence of Mata’s counsel, Anu Bakshi.
[106] Bakshi’s evidence is consistent with what Campbell had to say about these matters. The Mata statement of claim was issued on December 23, 2010. It does not appear that a notice letter was sent to Isaac or to Washington in advance, as was the case in the Lima action.
[107] The claim was amended on May 3, 2012, to delete a paragraph which alleged that Mata was entitled to indemnity under an insurance policy issued by State Farm to Moya, as it appears there was no such policy in force at the time of this loss. The title of proceeding was not amended to delete reference to State Farm at that time and, according to the case history, no steps appear to have been taken to discontinue the action against them.
[108] Moya was noted in default on April 27, 2012 and both State Farm and Wawanesa have now defended the action. Global examinations in the Mata and Lima matters took place in February 2013, though, in view of Mata now living in Mexico her discoveries were deferred to a later date. I was not advised if they had taken place as yet.
[109] Like Campbell, Bakshi maintains there was nothing in what she refers to as the police report (in fact, the Motor Vehicle Accident Report) to suggest that Isaac had been in any way negligent. She then recites, as Campbell did, the steps taken to get the police records and what she learned when she received them in April 2012.
[110] Among the documents obtained in April 2012 was Mata’s statement, to the effect that she had been speaking with Lima, a back seat passenger, at the time of impact; that she suddenly turned around, saw the car coming towards her with bright lights; and that she said “watch out”. Even armed with this information, Bakshi remained of the view that all liability rested with Moya. It apparently did not occur to her to query why her client, who had been looking behind her, saw the approaching Moya vehicle before Lima had taken evasive action.
[111] Like Campbell, Bakshi was not alive to the possibility that Isaac could be have been partly at fault for this accident – in her view, this was a one issue case.
[112] The remainder of Bakshi’s evidence essentially echoes that of Campbell.
CONCLUSIONS
[113] For all of the reasons set out in the Lima motion, the Mata motion must also fail. This is not, in my view, a factual matrix that can support the application of the discoverability doctrine. The foundation for a plea of negligence against the two Andrades was there from the start, in the Motor Vehicle Accident Report, in view of Isaac’s stated speed.
[114] This factor became a more significant one upon receipt of the first tranche of police records in March 2011, before the expiry of the limitation period. Though heavily redacted, they revealed the actual speed limit in the vicinity of the accident was 50 km/hour, not 60 as stated on the report. When that number is put together with Isaac’s stated speed, a plaintiff certainly has the ammunition he requires to include a party as a defendant in an action.
[115] The final piece of the puzzle is Mata’s statement to the police, released as part of the police’s later package. That should have led both counsel to query how it was that Mata, with her head turned to the back of the car, was aware of the oncoming Moya vehicle before Isaac appeared to be.
[116] The fact that Mata yelled “watch out” should have led Bakshi counsel to inquire of her client if Mata said that because she was of the view that Isaac hadn’t been paying attention to the road in the moments leading up to the accident.
[117] Mata was Bakshi’s client – in order to be able to say that they used reasonable diligence in finding out what they needed to know when they continued to exclude the Andrades as defendants to the action, both counsel had to demonstrate to the court that they had raised this issue with Mata and with Lima, to get their recollections of what took place in the car immediately before impact. This is something that both counsel apparently failed to do.
[118] Both counsel also neglected to follow up their request for police documents by using the appropriate tool - a Rule 30.10 Wagg motion. This approach was available to them as soon as the criminal charges against Moya was resolved, in late 2010. As personal injury counsel, it is inconceivable that they were not familiar with this procedure for gaining access to police records, one that had been in place for several by that time. Instead, they relied on what they were given by the police, though they concede those documents were heavily redacted, and they left it to a defendant to bring the Wagg motion, some time later.
[119] Neither counsel recognized that they had a basis for naming the Andrades as defendants from the outset based on Isaac’s stated speed and a stronger basis in March 2011 when learning that the speed limit was 10 km/hour lower than they had believed.
[120] It cannot be said that the plaintiffs have met their onus on these motions. The amendments sought are therefore not permitted in either action in view of the expiry of the limitation period.
Master Joan M. Haberman
Released: January 16 2015