ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-2797-00
DATE: 2015-08-11
B E T W E E N:
KRISHNAKUMARAN SUBRAMANIAM
Lisa L. Holland, for the Plaintiff
Plaintiff
- and -
ELIEEN FROST, CAROL ROBERTS, DONALD G. ROBERTS, STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. AND UNITY LIFE OF CANADA
Jeremy Shaw, for the Defendants. State Farm Mutual Automobile Insurance Co., and Donald G. Roberts
Defendants
HEARD: July 28, 2015
ENDORSEMENT
Lemon, J.
The Issue
[1] The Plaintiff moves for an order for leave to amend the Statement of Claim to add his wife as a Family Law Act claimant to the action.
Background
[2] The action arises out of motor vehicle accident on December 12, 2008. The Plaintiff issued a Statement of Claim on July 26, 2010.
[3] The various Statements of Defence were filed between August 2010, and November 2010.
[4] Examinations for discovery were completed by June 22, 2012. A private mediation was held on November 25, 2013.
[5] A pre-trial is arranged for August 7, 2015.
[6] The plaintiff now wishes to add a claimant.
Legal Authorities
[7] Rule 26.01 governs the court’s authority to grant leave to amend a pleading. The Rule makes it mandatory that the court shall grant leave at any stage of an action on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[8] On the other hand, the court’s authority to grant leave to add a party pursuant to Rule 5.04(2) is discretionary and if granted, must be made on terms that are just, unless prejudice would result that could not be compensated for by costs or an adjournment. The proposed plaintiff or defendant’s consent must be filed.
[9] Prima facie the limitation period in this action expired two years after the date of the accident; that is, December 12, 2010. The expiry of a limitation period creates a presumption of prejudice to the defendants that can be rebutted.
[10] Section 21 of the Limitations Act, 2002 specifically prohibits the addition of a person to an existing proceeding if a limitation period in respect of a claim against a person has expired.
[11] Since the passage of the Limitations Act, the Court of Appeal has demonstrated a tendency to apply a strict interpretation of statutory limitation periods.
[12] Sections 5(1) and 5(2) of the Limitations Act provide for the time to be extended if the plaintiff did not know of the cause of action. They read as follows:
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).
(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.
[13] The proposed plaintiff has the onus to rebut the presumption of knowledge stated in s. 5(2) of the Limitations Act; that is, the presumption that she knew of her right to seek damages within two years of the date of the accident. In order to do so, she must satisfy the court that the discoverability principle contained in s. 5(1)(b) of that Act applies to extend the limitation period.
[14] The test for discoverability is defined as a principle that provides that a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. This principle ensures that a person is not unjustly precluded from litigation before she has the information to commence an action, provided that the person can demonstrate he exercised reasonable or due diligence to discover the information. The obligation on a person to exercise due diligence is a positive one.
[15] The case law is clear that when a party is seeking to apply the discoverability rule, the court should afford a degree of latitude to that party before declaring that the limitation period has begun to run. In practical terms, the question is whether there is a sufficient body of evidence available to be placed before the trial judge that has a reasonable chance of persuading that judge, on the balance of probabilities, that the proposed plaintiff, having exercised reasonable or due diligence, first knew of her right to seek damages on her own behalf as a result of the accident no earlier than two years prior to the motion.
[16] It is not appropriate for a motions judge to resolve a limitation issue where the application of the discoverability rule is central to its resolution. It is a question of fact when the cause of action arose and thus when the limitation period commenced. The applicability of the discoverability rule is premised on the finding of these facts; that is, when the proposed plaintiff learned that she had a cause of action against the defendants, or, when through the exercise of reasonable diligence, she ought to have learned she had a cause of action against the defendants. These facts constitute genuine issues for trial and, as such, it is not appropriate for a motions judge or master to assume the role of a trial judge by resolving them.
[17] In summary, the motions judge must examine the evidentiary record before it is determined if there is an issue of fact or of credibility on the discoverability issue. If the court determines that there is such an issue, the plaintiff should be added with leave to the defendants to plead a limitations defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the essential facts that make up the cause of action against the defendants were actually known to the proposed plaintiff or her solicitor within two years of the date of the accident, the motion should be refused. (See: Conflitti v. Dhaliwal, 2010 ONSC 3218, 98 R.F.L. (6th) 167.)
Analysis
[18] For the following reasons the motion is dismissed.
Procedural
[19] Pursuant to Rule 5.04(3) of the Rules of Civil Procedure, no person shall be added as a plaintiff until the person’s consent is filed. There was no consent filed. That would normally bring this motion to an end.
Knew or Ought to Have Known
[20] There was no evidence from the proposed plaintiff herself. While the cases show that this is not fatal in and of itself, there needs to be some evidentiary record upon which I can rely. All that I have is the affidavit of the plaintiff’s counsel’s assistant stating that plaintiff’s counsel became aware of a strained family relationship between the plaintiff and his wife in 2013. The supporting affidavit says:
My review [presumably of the file] indicates and I do verily believe that at the Plaintiff’s Assessment with Dr. Edward on August 20, 2013, we became aware of the Plaintiff’s strained family relationship. Attached hereto this my Affidavit and now marked as Exhibit “H” is a true copy of the Psychiatric Report dated August 20, 2013 by Dr. Edward.
I am advised by Mohanabihai Krishnakumaran that she has been unable to continue working within the past two years to provide care for the plaintiff.
My review of the file indicates and I do verily believe that Mohanabihai Krishnakumaran has recently discovered within the past two years the full extent of the adverse effects of the Plaintiff’s injuries and these facts are sufficient to determine that they be added as Plaintiffs under the Family Law Act.
[21] There is nothing in the record that indicates when the proposed plaintiff herself knew or ought to have known of her claim. While she may have lost her job and discovered the “full extent” of her claim, within the last two years, there is nothing to determine when she was aware of the claim itself. In submissions, plaintiff’s counsel advised that it was only when the proposed plaintiff became unemployed in December of 2013, that she was aware of her potential claim. There is no evidence of that. Counsel’s submissions are not part of the evidentiary record.
[22] Further, the defendants have provided a number of medical records going back as far as 2009, suggesting difficulties between the plaintiff and his wife that appear to relate to the injuries arising from the motor vehicle accident. It appears that the plaintiff’s counsel had those records in late 2012. There is no explanation of why that did not bring the potential claim to the attention of the proposed plaintiff.
Prejudice
[23] There is also no evidence that rebuts the presumption of prejudice to the defendants.
[24] A pre-trial is scheduled for August 7, 2015, and it is anticipated that the trial may be heard in the fall of 2015, or the spring of 2016. Adding a plaintiff at this point will delay that process.
[25] It appears from the affidavit of the defendants’ counsel that there is a very real likelihood that relevant records will no longer be available.
[26] Mr. Roberts has filed an affidavit setting out the fact that his daughter, Carol Roberts, took the vehicle without his consent. The vehicle at the time was not insured. Accordingly, he has personally retained a lawyer to represent him in the proceedings. Further delay and further steps in these proceedings will obviously be prejudicial to him.
Result
[27] For those reasons, the motion is dismissed.
[28] If the parties cannot agree on costs, submissions may be made to me in writing. The defendants’ submissions will be provided within the next 15 days and the plaintiff shall respond within 15 days thereafter. Each submission shall be no more than three pages not including any bills of costs or offers to settle.
[29] If there are difficulties with my time period as a result of summer holidays, counsel may confer and provide a new timetable within the next 15 days.
Lemon, J.
Released: August 11, 2015
COURT FILE NO.: CV-10-2797-00
DATE: 2015-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KRISHNAKUMARAN SUBRAMANIAM
Plaintiff
- and –
ELIEEN FROST, CAROL ROBERTS, DONALD G. ROBERTS, STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. AND UNITY LIFE OF CANADA
Defendants
ENDORSEMENT
Lemon, J.
Released: August 11, 2015