STECHYSHYN v. DOMLJANOVIC et al, 2015 ONSC 3289

COURT FILE NO.: CV-08-356299-0000

DATE: 20150526

CORRIGENDA: 20150612

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VLADIMIR STECHYSHYN

Plaintiff

– and –

DUSAN DOMLJANOVIC and THE GUARANTEE COMPANY OF NORTH AMERICA

Defendants

L. Hennick, for the Plaintiff

P. Pollack, for the Defendants

HEARD and

ENDORSED: May 4, 2015, at TORONTO,

Ontario

REASONS FOR JUDGMENT (Delivered orally in court on May 4, 2015)

wright J.

Introduction:

1This is a motion pursuant to Rule 20 of the Rules of Civil Procedure for an order for summary judgment dismissing the plaintiff’s action on the grounds that the action against the defendant was brought after the expiry of the two-year limitation period as prescribed by the Limitations Act.

Background Facts:

2I will now give a very brief overview of the facts that are before me. I will further develop the facts, however, when necessary in my analysis.

3This action arises out of a motor vehicle accident involving a pedestrian that occurred on June 8, 2006. At the scene of the accident, the plaintiff, a pedestrian, exchanged information with the defendant, the driver of the motor vehicle. The plaintiff, at the scene, wrote down the defendant’s driver’s license information, insurance information, and his license plate in his personal note book.

4The police were not called to the scene of the accident.

5Following the accident, the plaintiff attended at hospital. It was there that he met with a police officer and described the details of the accident to the officer. He also gave the officer the page in his notebook where he had recorded the defendant’s particulars.

6The plaintiff did not receive a police report at that time, nor did he receive any type of business card identifying the officer. He believed the officer’s name was Constable Olsen.

7On June 6, 2008, the plaintiff retained counsel.

8June 20, 2008, a statement of claim was issued.

9January 5, 2010, counsel for the plaintiff sent a letter to the Toronto Police Service requesting a copy of the police report and/or notes of the investigation in relation to the accident.

10March 30, 2010, counsel received correspondence from the Toronto Police Service stating that they were unable to find a report or any information in relation to the accident.

11May 30, 2011, the Guarantee Company of North America, also a defendant to this action, at that time, obtained a court order compelling the police to produce a complete copy of their investigation records in relation to the accident.

12July 22, 2011, the plaintiff receives a copy of the police records from the Guarantee Company of North America. The records reveal that the defendant, Dusan Domljanovic, was the driver of the motor vehicle involved in the accident.

13November 25, 2011, the plaintiff brought an unopposed motion to amend the statement of claim substituting Mr. Domljanovic’s name for John Doe.

Position of the Parties:

14Counsel for the defendant argues that the plaintiff was required to exercise due diligence in determining the identity of John Doe within the two-year limitation period and because he did not act accordingly he is barred from claiming damages against the defendant by virtue of the Limitations Act.

15Counsel for the plaintiff argues that the plaintiff took all reasonable steps to identify the defendant Dusan Domljanovic in accordance with the Limitations Act but was unable to ascertain his identity for the purposes of naming him until he received the information from the Guarantee Company of North America.

Findings and Analysis:

16The test, as I understand it, is as follows:

1. Was the identity of the defendant available and discoverable;

2. If it was available and discoverable, on what date was it so; and,

3. If it was available and discoverable, did the plaintiff take reasonable steps to obtain the information?

17I find that the information and the identity of the defendant was both available and discoverable to the plaintiff.

18I find that it had been available and discoverable to the plaintiff since the date of the accident; June 8, 2006.

19I further find that the plaintiff did not exercise due diligence and did not take all reasonable steps to identify the defendant Dusan Domljanovic within the time required by the Limitations Act and here is why.

20I appreciate and I am mindful that the plaintiff did take some steps in his attempt to identify the defendant. Those steps, however, fall far short of the due diligence that was required of him.

21Several days after the accident, the plaintiff did attend at an auto mechanic shop close to where the accident happened and where the defendant was seen to be leaving immediately prior to the accident. The owner, however, refused to assist the plaintiff at that time.

22I also note that in his affidavit, the plaintiff, at paragraph 11, stated, and I quote: “I requested the contact information of Domljanovic”.

23One might infer from this that he at least knew the surname of the defendant at that time. It is perhaps a minor point in the overall context. I am however mindful that this is inconsistent with his testimony on discovery and as such I am not prepared to completely dismiss it from my analysis.

24The plaintiff also twice attended Toronto Police Service, 12 Division, to make inquiries. There is, however, no evidence as to when he attended or what exactly the inquiry or conversation was about. I appreciate and am mindful that he attended in that two year period between the accident and retaining counsel. The date, nonetheless, is vague and when considered in combination with the lack of detail as to the content of the actual inquiries, it significantly diminishes the weight I’m prepared to attach to this particular piece of evidence.

25On June 6, 2008, the plaintiff did retain counsel and listed above are the entirety of the steps or inquiries that the plaintiff made to identify the defendant prior to retaining counsel. I find that on their face, they are entirely inadequate. However, I’m mindful that during that two-year period following the accident, the plaintiff did not have the benefit or guidance of counsel, which makes the lack of action and reasonable steps in the two years that followed the retention of counsel even more difficult to reconcile. One-and-a-half years after being retained, counsel sends an urgent request to the Toronto Police Service for information regarding the accident and the identity of the defendant. I thought it somewhat ironic that counsel marked the document ‘urgent’ given it took them one-and-a-half years to make the request.

26Counsel argues that the letter, the inquiries and the action taken by the plaintiff himself amount to reasonable steps.

27I wholeheartedly disagree.

28On May 30, 2011, the Guarantee Company of North America attained a court order compelling the Toronto Police Service to disclose all material relevant to this accident. By July 2011, that information was produced and disclosed to all parties. It was clearly open to the plaintiff and his counsel to bring this motion themselves. They did not. If they had, it would have amounted to a reasonable step and an exercise of due diligence. This, in my view, is a significant mis-step on the part of the plaintiff.

29I do not have before me the materials that would have been available to the court on that disclosure motion that generated the identity of the defendant. I also do not know what information was provided to the Toronto Police Service to enable them to produce that information.

30I do know that Toronto Police Service were given some information upon which to conduct their search. I do know that the information was sufficient, in that it produced the information that the requesting party was seeking. I also know that the only witness and source of information at the time, other than the defendant, was the plaintiff.

31It is therefore open for me to conclude, and I do conclude, that the information provided to Toronto Police Service was based entirely on information provided by the plaintiff.

32As such, I find that the plaintiff could have, at any point after the accident, brought this same disclosure application and that it would have generated the same results. Again, the fact that they did not bring this application is a significant omission that demonstrates a clear lack of due diligence on the part of the plaintiff.

33I have considered counsel’s argument that in 2010 the plaintiff attended the auto mechanic shop a second time to speak with Zoran in an attempt to obtain information about the identity of the defendant. The shop, however, at that time had been sold and Zoran was nowhere to be found.

34I hardly think attending this place of business every four years can be said to amount to due diligence. Even when taken into consideration with the other efforts, it is of little value in the final analysis.

35Finally, I do not accept the plaintiff’s argument that this motion amounts to a re-litigation of the plaintiff’s unopposed motion on November 25th, 2011 to substitute Dusan Domljanovic for John Doe as a defendant. They are, in my view, fundamentally different issues.

Conclusion:

36For the reasons set out above, the plaintiff’s action against Mr. Domljanovic will be dismissed.

K. Wright J.

Released: May 26, 2015

CORRIGENDA

1. The file number has been corrected from CV-08-353299 to CV-08-356299.