Socha et al. v. Peninsula Towing & Recovery Inc. et al.; Homolka et al., Third Parties

[Indexed as: Socha v. Peninsula Towing & Recovery Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Sweeny J.

August 28, 2015

127 O.R. (3d) 57 | 2015 ONSC 5076

Case Summary

Limitations — Minors — Plaintiffs seeking to add defendants after expiry of limitation period — Minor plaintiff's father aware of facts giving rise to claim against proposed defendants on date of accident — Father appointed as minor plaintiff's litigation guardian — No issue of discoverability arising — Possibility that litigation guardian was in conflict of interest not having effect of suspending running of limitation period — Limitation period beginning to run against minor plaintiff from date of appointment of litigation guardian.

The minor plaintiff was injured when he was struck by a tow truck. At the time, he was playing near the home of MH and JH. The minor plaintiff's parents sued the owner and driver of the tow truck, who delivered a statement of claim and counterclaim alleging negligent supervision on the part of the adult plaintiffs. The minor plaintiff's father, SS, was appointed as the minor plaintiff's litigation guardian. SS was subsequently removed as litigation guardian and replaced by the minor plaintiff's mother. After the expiry of the applicable limitation period, the plaintiffs brought a motion to add MH and JH as defendants.

Held, the motion should be dismissed.

SS was aware on the date of the accident of the facts giving rise to a claim against MH and JH. There was no issue of fact or credibility as to the discovery of the claim against MH and JH, such that MH and JH should be added with leave to plead a limitation defence. The possibility that SS had an interest adverse to the interests of the minor plaintiff did not have the effect of suspending the running of the limitation period. The limitation period began to run against the minor plaintiff from the date of the appointment of SS as his litigation guardian.

Cases referred to

Beckerson and Beckerson v. Dougherty, 1953 129 (ON SC), [1953] O.R. 303, [1953] O.J. No. 659, [1953] 2 D.L.R. 498 (S.C.); Macksoud (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108, 278 O.A.C. 38, 11 C.P.C. (7th) 190, 198 A.C.W.S. (3d) 318; Murray v. Children's Centre Thunder Bay, [2010] O.J. No. 826, 2010 ONSC 845, 93 C.P.C. (6th) 97, 185 A.C.W.S. (3d) 613 (S.C.J.); Philion (Litigation guardian of) v. Lemieux Estate (2007), 85 O.R. (3d) 1, [2007] O.J. No. 1405, 2007 ONCA 281, 223 O.A.C. 267, 46 C.P.C. (6th) 203, 156 A.C.W.S. (3d) 916; Wong v. Adler (2005), 2004 73251 (ON SCDC), 76 O.R. (3d) 237, [2005] O.J. No. 1400, 17 C.P.C. (6th) 65, 28 M.V.R. (5th) 38 (Div. Ct.), affg (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460, [2004] O.J. No. 1575, [2004] O.T.C. 336, 2 C.P.C. (6th) 175, 5 M.V.R. (5th) 142, 130 A.C.W.S. (3d) 703 (S.C.J.)

Statutes referred to

Limitations Act, R.S.O. 1990, c. L.15

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 5(1)(a), 9(3) [page58 ]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1, 4, 5, 5.04(2), 6, 7.02(2), 7.05(2), (3), 8, 26.02

MOTION for an order adding defendants.

Katharine A. Book, for plaintiffs.

No one appearing for Peninsula Towing & Recovery Inc. and Donald Mason.

Caitlin Turner, for third parties/proposed defendants.

SWEENY J.: —

Introduction

[1] This is a motion by the plaintiffs to add the defendants more than two years after the day on which the act or omission on which the claim is based took place.

[2] On July 2, 2014, the plaintiffs moved to appoint a new litigation guardian for the minor plaintiff Cole Socha (DOB March 24, 2002) ("Cole") and to add Myra Homolka and John Homolka (the "Homolkas") as defendants. By order dated December 5, 2014, Mr. Justice Henderson appointed Vivian Hallé litigation guardian for Cole. The Homolkas oppose the motion to add them on the basis that the limitation period has expired. The plaintiffs respond that there are issues of fact or credibility with respect to the discoverability of the claim such that the Homolkas should be added with leave to plead the limitation period or, alternatively, that the former litigation guardian was in a conflict of interest such that the limitation period did not run and the claim is within time.

Background

[3] On September 18, 2009, Cole was injured when he was struck by a tow truck owned by Peninsula Towing & Recovery Inc. ("Peninsula") and operated by Donald Mason ("Mason"). The motor vehicle accident report discloses that the tow truck struck Cole "on a roadway near the curb of the west side of [address omitted] Drive". That is the home owned by the Homolkas. Stan Socha ("Stan") and Michelle Halle-Socha ("Michelle") are the parents of Cole. Stan was appointed litigation guardian for Cole on September 12, 2011, and this action was commenced by a statement of claim dated September 12, 2011. This statement of claim names only Peninsula and Mason as defendants (the "defendants"). [page59 ]

[4] The defendants delivered a statement of defence and counterclaim on July 11, 2012. The counterclaim asserts allegations of negligence against Stan and Michelle which is essentially a claim of negligent supervision. The defendants issued a third party claim against the Homolkas on July 25, 2012, which also asserts a claim for negligent supervision. This motion was initially brought July 2, 2014.

Issues

[5] There are two issues raised on this motion:

(1) Is there an issue of fact or credibility on the discoverability of the claim against the Homolkas such that the Homolkas should be added with leave to plead a limitation defence?

(2) Does the limitation period cease to run against Cole because Stan had an interest adverse to the interests of Cole?

Law

[6] Rule 26.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a party may amend the party's pleading, without leave, if the amendment does not include or necessitate the addition, deletion or substitution of a party; with the consent of all parties, and where a person is to be added or substituted as a party, the person's consent; or with leave of the court.

[7] Rule 5.04(2) provides that a court may, by order, add, delete or substitute a party on such terms that are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[8] The relevant provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act") are as follows:

1. In this Act,

"claim" means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was 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, [page60 ]

(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,

(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.

6. The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in relation to the claim.

8. If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.

Issue (1): Discoverability

[9] Where the plaintiff asserts that discoverability arises with respect to the claim against a proposed defendant, Master Dash has set out the approach to take in the case of Wong v. Adler (2004), 2004 8228 (ON SC), 70 O.R. (3d) 460, [2004] O.J. No. 1575 (S.C.J.), affd (2005), 2004 73251 (ON SCDC), 76 O.R. (3d) 237, [2005] O.J. No. 1400 (Div. Ct.), at para. 45, as follows:

[T]he motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave 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 name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility. [page61 ]

[10] Section 5 applies to litigation guardians pursuant to s. 8 of the Act. Stan was appointed litigation guardian on September 11, 2013 and, accordingly, as of that date the limitation period would begin to run against Cole.

[11] Before the accident occurred, Cole was playing at the Homolkas' home and this was known by Stan and Michelle. Immediately after the accident, Stan was aware Cole had come from the Homolkas' residence. The police report refers to Cole coming from the Homolka residence.

[12] There is no affidavit filed by Stan on this motion. On his examination for discovery, Stan was asked:

492. Q. Had you at any point acquired knowledge, information or belief, in your mind, that the Homolkas were responsible in any way for what happened here?

A. Again, I thought -- my thought was this tow truck only. Call it tunnel vision.

Based on the evidence, it appears that Stan did, in fact, have knowledge of the matters contained in s. 5(1)(a) of the Act with respect to a claim against the Homolkas.

[13] Even if Stan for some reason was not fully cognizant of the elements of s. 5(1)(a), a reasonable person with the abilities and in the circumstances of Stan would have known the matters referred in clause (a).

[14] On this issue, I find that the plaintiffs have not raised an issue of fact or credibility on the discoverability of the claim against Homolkas, and the Homolkas cannot be added as defendants on the basis of discoverability.

Issue (2): Litigation guardian conflict

[15] The plaintiffs assert that the limitation period does not run during any time when the person with the claim is a minor and is represented by a litigation guardian who is in a conflict of interest. The plaintiffs assert that in this case the conflict of interest created by the counterclaim means that Stan, as litigation guardian, was adverse in interest and, accordingly, was not a proper litigation guardian with respect to the claim.

[16] The effect of the appointment of a litigation guardian in the Limitations Act, 2002 is a departure from the effect of the appointment of litigation guardians under the Limitations Act, R.S.O. 1990, c. L.15. In respect of claims governed by the old Act, the limitation period would not commence to run until the minor attained the age of 18. The appointment of a litigation guardian had no effect on the potential claim. See Philion (Litigation guardian of) v. Lemieux Estate (2007), 2007 ONCA 281, 85 O.R. (3d) 1, [2007] O.J. No. 1405 (C.A.). [page62 ]The new Act specifically provides the limitation period will run when a litigation guardian represents a minor in relation to the claim.

[17] There is no mechanism for the self-appointment of a litigation guardian in the Act. There is a provision for the appointment of a litigation guardian by a proposed defendant in s. 9(3). This allows for a potential defendant to commence the running of limitation period against a minor or incapable person.

[18] A litigation guardian may be self-appointed under the Rules of Civil Procedure. Rule 7.02(2) addresses the requirements of the contents of the affidavit to be filed by the litigation guardian, which specifically includes:

(2) No person except the Children's Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,

(g) states that he or she has no interest in the proceeding adverse to that of the person under disability[.]

[19] The litigation guardian has a duty to diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (rule 7.05(2)). The litigation guardian shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding (rule 7.05(3)).

[20] A litigation guardian is appointed under the Rules of Civil Procedure in the context of a particular proceeding. The Act refers to the minor being represented by a litigation guardian in relation to the claim. The claim is defined as "a claim to remedy an injury, loss, or damage that occurred as a result of an act or omission". A proceeding is defined under the Rules of Civil Procedure as an action or an application. The term "claim" is broader than proceeding.

[21] In this case, Stan swore the required affidavit in this proceeding and accepted the duties and responsibilities to act on behalf of Cole in respect to the claim. The obligations imposed on him are set out in Macksoud (Litigation guardian of) v. Carroll (2011), 104 O.R. (3d) 700, [2011] O.J. No. 623, 2011 ONCA 108, at para. 24, where the Court of Appeal held that

. . . a reasonable person acting as litigation guardian, and in this case, acting for herself as well, would retain competent counsel who is expected to take whatever are the necessary steps in a potentially complex medical malpractice case to identify all the potential defendants against whom claims may be made, within the relevant limitation period.

[Citation omitted] [page63 ]

[22] The litigation guardian is expected to bring any and all claims that ought to be brought against the appropriate defendants. Litigation should not occur on a piecemeal basis. This is not a case where the plaintiffs would be unaware of the potential liability of the defendants given the facts which were known, or ought to have been known, to the litigation guardian.

[23] In this case, Stan was appointed as a litigation guardian on behalf of Cole. He commenced a proceeding, the within action, in relation to a claim. Stan represented Cole as a litigation guardian with respect to the claim. The claim is the claim for injuries arising out of the accident. There is no conflict in representing Cole with respect to the claim against the Homolkas.

[24] The conflict of interest which is said to arise as a result of being named a defendant to a counterclaim cannot absolve a litigation guardian of his or her responsibilities to a minor. The conflict of interest may be seen as an indication that the litigation guardian has an "interest adverse" to the minor (see Murray v. Children's Centre Thunder Bay, [2010] O.J. No. 826, 2010 ONSC 845 (S.C.J.), at para. 25). However, the existence of a counterclaim or the potential liability of a parent has not precluded a parent from representing a minor as a next friend (the precursor to a litigation guardian) as was the case in Beckerson and Beckerson v. Dougherty, 1953 129 (ON SC), [1953] O.R. 303, [1953] O.J. No. 659 (S.C.).

[25] In my view, a litigation guardian is not relieved of his or her duties to the minor or incapable person because he or she finds that his or her interest may be adverse. If that situation does arise, the litigation guardian should take steps to have a new litigation guardian appointed. The conflict should not have the effect of suspending the running of the limitation period.

[26] The conflict of interest in this case has no effect on the claim against the Homolkas. The limitation period began to run against Cole from the date of Stan's appointment, that is, September 12, 2011. The motion to add the Homolkas was not added until July 2, 2015, nearly four years later. It is out of time. The motion is dismissed.

Costs

[27] On the issue of costs, I see no reason that costs should not follow the event. The Homolkas provided a costs outline which totalled $4,690.06, inclusive of HST, on a partial indemnity basis. In all the circumstances, I fix the costs at $3,500, all inclusive, payable by the plaintiffs to the Homolkas forthwith.

Motion dismissed.

End of Document