SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-416114

DATE: 20150814

RE: Makoto Kakinoki, Akemi Kakinoki, Jeffrey Kei Kakinoki
and Justin Naoya Kakinoki, Plaintiffs

AND:

Mainul Islam, Perveen Islam and CAA Insurance Company (Ontario), Defendants

BEFORE: Sean F. Dunphy J.

COUNSEL:
William G. Scott, for the Plaintiffs

Daniela Corapi, for the Responding Party Township of King

HEARD: August 13, 2015

ENDORSEMENT

[1] This is a third endorsement made in three related motions heard together. I granted the two related motions for summary judgment of the defendant Township of King with written reasons which are being released with this endorsement (and attached hereto as an appendix for context). In summary, I found that the claims of the plaintiffs against the Township of King arising from a single accident on August 26, 2009 were barred under s. 4 of the Limitations Act, 2002, S.O, 2002, c. 24.

[2] This motion was brought by the plaintiffs in this action seeking leave to add the Township of King as a party defendant notwithstanding the passage of time. There are two foundations to the motion. Firstly, it is said that the Trustee Act, R.S.O. 1990, c. T23 contains its own limitation period which is applicable to the claims of these plaintiffs to the exclusion of the Limitations Act. Secondly, it is said that I have discretion to extend the limitation period under the Trustee Act which I do not possess under the Limitations Act which I should exercise in this case due to “special circumstances”.

[3] I reserved my decision on the matter at the hearing. After full consideration of the arguments of the parties, I have decided that I must rule against the plaintiffs on both of the arguments advanced and dismiss this motion with costs. The cases and statutes are both clear that the Trustee Act does not supercede the Limitations Act and I am obliged to reject this motion by the mandatory provisions of s. 21 of the Limitations Act. This is so even though the doctrine of “special circumstances” is applicable to the separate limitation period in the Trustee Act. In any event, I would decline to exercise my jurisdiction to find special circumstances with respect to the Trustee Act limitation period in the circumstances of this case. My reasons follow.

Overview of Facts

[4] In the small hours of the morning on August 26, 2009, a tragic motor accident occurred. A young man of 16 years with neither a driver’s license nor any experience behind the wheel of a car, decided to take three of his friends out for a ride on the country roads of King Township. He helped himself to his mother’s car for the purpose and, as far as is known, had no permission to do so. Failing to navigate a curve on the road, he lost control of the car while travelling at a high rate of speed and it collided with a utility pole. One of his unfortunate passengers died of his injuries shortly afterwards, another was injured.

[5] Two law suits followed. The first, the present case, was brought by the surviving members of the family of the deceased passenger, Mr. Kakinoki, under the provisions of Part V of the Family Law Act, R.S.O. 1990, c. F. 3. The second action was brought by one of the other two passengers (Mr. Kur – joined by his parents as co-plaintiffs in respect of their FLA claims). Both law suits were commenced well within the two year limitation period prescribed by s. 4 of the Limitations Act and named the driver as well as his mother (as owner of the car).

[6] The motor vehicle accident was of course promptly investigated by the police. In the course of the litigation, the notes of the attending police officers were requested and reviewed by the law firms representing the plaintiffs. The evidence indicates that the notes were produced to one of the plaintiff’s counsel (in the Kur action) in May, 2010. The other counsel (in the Kakinoki action) received the notes from counsel in the Kur action by June, 2011.

[7] One of the officers who attended at the scene soon after the accident recorded in his notes that the flashing amber warning light above the first of three signs announcing the coming curve in the road was functioning. A few hours later, after dawn had shed enough daylight upon the scene to enable a more thorough investigation, a second officer recorded that the same light was found “not presently working”.

[8] There is nothing before me to indicate whether there is actual contradiction between the notes of these two officers or whether the amber light in question was on a timer or light sensor switch that caused it to be extinguished in daylight. Thus we have at least the possibility that the evidence may bear out the assertion that amber warning light was not functioning to warn drivers of the curve ahead. That circumstance in turn could suggest the possibility that the Township of King might potentially bear a measure of responsibility in this tragic occurrence.

[9] Given the circumstances of the driver taking his mother’s car allegedly without permission, the Motor Vehicle Accident Claims Fund into the picture. The driver, a minor at the time of the accident, was examined for discovery in September, 2013 after the Fund had been notified. In his examination for discovery, the driver was unable to shed any light on the matter of the flashing amber light. He did not recall seeing the flashing amber light and otherwise had a fairly sparse memory of the circumstances of the accident. However, his failed recollection of the flashing light lends at least some limited additional support for the thesis that the light may not have been operational at the time of the accident.

[10] Following this examination for discovery, counsel for the Fund wrote to the two plaintiff’s counsel and advised them of the possibility that the Township of King may have some level of responsibility, indicating that this might be a ground for the Fund to decline to make any payment. Section 7(3) of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 provides that the Fund “shall not” make any payment in respect of a judgment unless in an action “brought against all persons against whom the applicant might reasonably be considered as having a cause of action” (emphasis added).

[11] Faced with the prospect of a potential denial of coverage from what may be the only source of compensation, the two plaintiff groups evidently re-assessed their views on the advisability of running the risk of costs consequences should they sue King Township unsuccessfully. Statements of Claim were brought against the Township of King on November 1, 2013 by the Kakinoki plaintiffs and on May 8, 2014 by the Kur plaintiffs.

[12] On the evidence before me, there is little doubt that the warning from MVAC was the reason for the claims being brought when they were. The plaintiffs have effectively admitted as much in their factum and the matter admits of no serious doubt.

[13] The defendant Township of King had not previously been involved in the litigation. If they had been notified of it in some fashion, there is no evidence of that in the record.

[14] Township of King brought summary judgment motions in both of the newly-brought actions before me. They were argued immediately prior to this motion. King argued that the claims were barred under the Limitations Act. I agreed with their argument and dismissed both claims as barred under s. 4 of the Limitations Act. I advised the parties I would be issuing brief written reasons which I append hereto.

[15] After receiving the summary judgment motion of the Township of King, the plaintiffs in the Kakinoki argument brought the present motion to amend their original statement of claim (issued in 2010) to add the Township of King as a defendant to the existing action. No amended Statement of Claim was filed, from which I conclude no fresh allegations are intended to be made as against the proposed defendant.

[16] The Kakinoki plaintiffs take the position that even if their claim against the Township of King be barred pursuant to the Limitations Act – and they virtually admitted in their factum that it was – they might nevertheless be permitted to proceed with the amendment sought on the basis that the limitation period applicable to their claim is to be found exclusively in s. 38(3) of the Trustee Act and not in the Limitations Act at all. As such, they can rely upon the doctrine of “special circumstances” still applicable to the Trustee Act and plead that this court has jurisdiction to relieve them of the consequences of the limitation period on the grounds set forth in the Notice of Motion and factum.

[17] I should clarify here that in dismissing the stand-alone Kakinoki action first, I was not intending thereby to render this motion moot. I have ruled on the applicability of the Limitations Act in relation to that action, but not on the Trustee Act issues raised in this motion. My earlier ruling today should thus be considered subject to that minor caveat or variance. The order of argument was purely for convenience of the court and counsel and was not intended to bear any substantive consequences. I fully understood the intent of the plaintiffs on this motion and intended to deal with it substantively.

Issues

[18] The narrow issues in this case are these:

a. Does s. 38(3) the Trustee Act apply exclusively to this claim so as to exclude the limitation period prescribed by s. 4 of the Limitations Act that I have found would otherwise bar this claim?

b. If so, are there “special circumstances” in this case sufficient to warrant the exercise of the court’s discretion?

[19] I have concluded in both cases that the answer is in the negative. Section 38 of the Trustee Act creates a separate limitation period applicable to executors and trustees. It does not however exclude the operation of the Limitations Act in this case. In any event, the plaintiff has not discharged its onus of disproving prejudice to the proposed new defendant (Township of King) nor has it established special circumstances which are, in my view, adequate to warrant the exercise of my discretion in relation to the limitation period in s. 38(3) of the Trustee Act. The motion must fail.

Analysis and Discussion

(a) Does the Trustee Act supercede the Limitations Act?

[20] The plaintiffs in the Kakinoki action are the parents and two brothers of the deceased victim of the accident, Mr. Kakinoki. Because he died shortly after the accident, the date of death and the date of injury are the same in this case. These plaintiffs’ claims under Part V of the Family Law Act are derivative of the claim of the deceased: Camarata v. Morgan, 2009 ONCA 38, 94 O.R. (3d) 496 (C.A.); Family Law Act s. 61.

[21] Section 38(1) of the Trustee Act provides that “the executor or administrator of any deceased person may maintain an action for all torts or injuries …in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do”. Section 38(3) of the same Act in turn provides that “an action under this section shall not be brought after the expiration of two years from the death of the deceased”.

[22] In the present case, there is no action by the deceased or his executor. However, the claims of the plaintiffs under Part V of the Family Law Act are derivative of the claim that was or could have been brought by the trustee of the estate of Mr. Kakinoki. As such, their claims are also subject to the same limitation period under s. 38(3) that the claim of the trustee of the estate would have been: Camarata, supra, at para. 9.

[23] The limitation period of two years stipulated by s. 38(3) of the Trustee Act is subject to the doctrine of “special circumstances” referred to below: Patterson v. Ontario (Transportation), 2013 ONSC 6666; aff’d 2014 ONCA 487. The same cannot be said for the limitation periods prescribed by the Limitations Act: c.f. Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469.

[24] In bringing this motion to add the respondent Township of King to its existing action, the plaintiffs are operating under the misapprehension that doing so – even if permissible under s. 38(3) of the Trustee Act were special circumstances shown to exist – would avoid the operation of s. 4 of the Limitations Act. In my view, they are mistaken in this view.

[25] The relief sought by the plaintiffs, ostensibly grounded in s. 38 of the Trustee Act, would produce an outcome diametrically opposite to one that a straightforward reading of s. 38 would lead one to suppose. Section 38(1) of the Trustee Act modifies the rule of the common law which had the sometimes harsh effect of making a defendant better off should an injured person succumb to his or her injuries. As a result of s. 38, their claim can be taken up by the executor or trustee “in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do”. I have already found that Mr. Kur, who survived the accident, lost the right to pursue the Township of King by reason of s. 4 of the Limitations Act. It would be anomalous indeed if s. 38 of the Trustee Act, while purporting only to vest in the executor the same rights as the deceased Mr. Kakinoki would have had if he had survived the tragedy, instead potentially vested higher rights in his estate and those claiming thought it. Such a reading would turn s. 38 on its ear and is not one which the plain wording of s. 38 compels. It does not purport to exclude the operation of other limitation periods, but imposes another limitation period which may well prove shorter in some cases.

[26] In the case of Camarata, supra, the Court of Appeal found (at para. 8):

“Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act. Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action. In some circumstances s. 38(3) will effectively shorten what would otherwise be the applicable limitation period….Section 38(3) cannot extend the limitation period what would have been applicable had the deceased not died and been able to carry on with his action” (emphasis added).

[27] Camarata has found that both limitation periods must be applied and that the Trustee Act does not supercede the Limitations Act. This is consistent not only with precedent but with the plain words of the statute and common sense. Thus, even if I were to be moved to exercise discretion to soften the application of the Trustee Act, I can do nothing to mitigate the application of the Limitations Act.

[28] Section 20 and 21 of the Limitations Act also demand this same conclusion and preclude me from granting the requested amendment adding the Township of King to the Kakinoki action:

“20. This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.”

[29] Section 38(3) of the Trustee Act and Section 4 of the Limitations Act both provide for a two year limitation period which, given the death of Mr. Kakinoki on the day of the accident, happen to coincide with each other precisely (subject to extensions of the latter limitation due to possible discoverability issues which do not apply to Trustee Act claims). The Trustee Act by its terms does not purport to extend, vary or suspend the Limitations Act. To the contrary, they both apply a two year period. The doctrine of special circumstances allowing what is, in effect, a nunc pro tunc amendment to pleadings to avoid the application of the Trustee Act can hardly be characterized as an extension, variation or suspension under another Act as referred to in s. 20 of the Limitations Act and, accordingly, s. 21 thereof precludes me from adding the Township of King to this existing proceeding as requested in this motion.

[30] Accordingly, on the basis of Camarata, supra, and s. 21 of the Limitations Act, I must dismiss the plaintiffs’ motion to add Township of King as a defendant at this stage in the proceedings given the passage of the limitation period under s. 4 of the Limitations Act.

(b) Is the doctrine of Special Circumstances applicable?

[31] In the event I am wrong in this conclusion and s. 38 of the Trustee Act operates to the exclusion of s. 4 of the Limitations Act, I have proceeded to consider the factors mentioned in the cases in connection with the doctrine of special circumstances.

[32] While every such case necessarily turns on its peculiar facts, I find that in the present case, there are no special circumstances present which would warrant the exercise of my discretion to relieve the plaintiffs of the effect of the expiry of the applicable limitation period so as to enable them to bring a claim against Township of King.

[33] While the criteria to be considered in application of this doctrine are by no means closed or confined to the criteria described in any one case, I have sought to synthesize the criteria found in the cases cited by the parties and to consider the factors I find to be of some importance or relevance.

(i) Balance of Prejudice

[34] The application of the doctrine involves a two-step process. The first step involves assessment of whether there exists prejudice which cannot be compensated by costs: Mazzuca v. Silvercreek Pharmacy Limited, 2001 8620 (ON CA), following which special circumstances are reviewed. Special circumstances are to be considered very much the exception and not the norm: Robertson v. O’Rourke 1997 11575 (ON CJ), [1997] O.J. no. 3274; aff’d 1998 2918 (ON CA).

[35] Many of the special circumstances cases involve minor errors in the naming of a party. The common element in these cases is that the party sought to be added had notice of the proceedings. There is no evidence in this case that Township of King had notice of the litigation at all. Whether the York Regional Police communicated with them about the accident is not known, but there is no suggestion that they were put on notice of litigation and thus had an early opportunity to investigate, inquire about evidence and conserve it, etc. The evidence presented by the plaintiff, who, it needs to be underscored, bears the onus on such a motion of establishing the lack of prejudice, was quite slight. The fact that the police reports are available, for example, does not help in assessing whether road sign maintenance logs are available, whether employees responsible for these are still around, etc. The evidence which may have been adequately preserved is of no assistance to the Township of King in addressing the allegations specific to it (state of the roads and warning signs). While it is true that the responding party could have provided the court with better evidence about its prejudice (they filed none), the failure of the plaintiff to discharge its onus in this regard weighs against special circumstances. I should not even consider special circumstances unless the party seeking relief discharges its onus of showing there is no prejudice that cannot be compensated in costs. They have failed to satisfy me as to the threshold fact of lack of prejudice to the party being added. I am particularly inclined to infer prejudice in circumstances where there has been no notice of the litigation to the proposed new defendant. I have not been directed to any case where special circumstances have been found to add a new party to the proceeding with no prior notice of the proceeding.

(ii) Explanation for delay

[36] I can find no adequate explanation for the failure to add the Township of King before this time. The issue of the contribution of the Township to the causes of the accident was clearly present on the record early on and the plaintiffs in both actions clearly found it to be insufficient to warrant further action. As I noted in my endorsement in the summary judgment motions, it was open to anyone to investigate the possible role of the roads or state of any warning signs or amber lights long before now. However, I cannot find that the second-guessing by the Fund several years after the fact is reason enough to constitute a “special circumstance”. The Township of King has nothing whatever to do with that process.

(iii) Other sources of recovery

[37] It would be speculative in the extreme to conclude that the failure to have added the Township of King will have the feared effect of disentitling the plaintiffs to any recovery from the Fund by virtue of s. 7(3). It remains to be seen whether the decision of counsel not to proceed against the Township was reasonable in the circumstances. The evidence is by no means complete on the matter. From what is before me today, it is by no means a necessary or even probable conclusion that the plaintiffs will be found to have had a cause of action against the Township of King which they failed to pursue without reasonable cause. Nothing in the evidence before me leads me to conclude that it is at all probable that the plaintiffs will find themselves with no recourse should special circumstances not be found in this case and the plaintiffs be denied the opportunity of pursuing recovery from the Township of King.

[38] In conclusion on special circumstances then, I find (a) the evidence of lack of prejudice is weak and does not discharge the plaintiffs’ burden; and (b) the threat of the Fund does not constitute a special circumstance and that is the main if not only motivating factor behind the request made of me today.

[39] It is to be recalled that the doctrine of special circumstances is an extraordinary one. It has been entirely excluded by the Limitations Act. While it survives in other statutes such as the Trustee Act, that does not suggest that it is to be applied as a matter of course. Parties are entitled to rely on limitation periods and it is only in exceptional circumstances that that expectation should be disturbed. It would be unjust to the proposed defendant to add them to this litigation so long after the fact in these circumstances absent compelling circumstances. There are none here. This motion should be dismissed with costs.

[40] I have reviewed the matter of costs on the two summary judgment motions. I have received the separate outline of costs of the responding party on this motion which was in a very similar order of magnitude to the amount claimed in the other two actions. My analysis of the positions of the parties as to costs is similar in this motion and I shall not repeat my reasons here. I have decided that it is fair and reasonable to fix the plaintiff’s costs on this motion of $9,500 inclusive which is payable within thirty days of the date hereof. The responding party has been successful in avoiding being added to this action. No grounds for a higher standard of costs (i.e. higher than partial indemnity) have been alleged here. I have so endorsed the motion record this day.

Sean F. Dunphy, J.

Date: August 14, 2015

Appendix

Kakinoki et al. v. Township of King, CV-13-492057
Kur et al v. Township of King, CV-14-503785

Before: Mr. Justice Sean F. Dunphy

Heard: 13 August, 2015

JOINT ENDORSEMENT

1. There are two motions for summary judgment before me this morning. The motions are brought in separate claims arising from the same traffic accident on August 26, 2009. I have decided to grant both motions for summary judgment and have so endorsed both motion records. These are my brief reasons applicable to both and a copy shall be included in each.

2. On August 26, 2009, there was a tragic traffic accident in the Township of King at approximately 3 o’clock in the morning on Keele Street south of Davis Drive. The accident arose when a young driver, then 16 years of age, unlicensed and apparently uninsured, decided to take his mother’s car for a ride along with three friends on some country roads without her knowledge or permission. He had no experience in driving. He failed to negotiate a curve on the road while travelling at high speed, lost control and collided with a utility pole with catastrophic results.

3. Mr. Kakinoki, one of the three passengers, was severely injured in the accident and passed away shortly afterwards as a result of his injuries. A statement of claim was commenced by his parents and brothers under the Family Law Act, R.S.O. 1990, c. F.3. That claim was commenced on December 9, 2010 and named the driver, the owner and her insurance company as defendants. On November 1, 2013, the very same plaintiffs commenced a fresh action against the Township of King which is the subject of the motion for summary judgment brought by the defendant in that case today.

4. Similar facts apply to the companion claim brought by Mr. Kur, a passenger in the car who survived the accident. He commenced his own action against the driver, the owner of the car in 2010 and his claim included as co-plaintiffs his parents acting under the Family Law Act as well. His claim against the Township of King was commenced on May 8, 2014.

5. The circumstances which resulted in these two claims being brought against the Township of King so long after the accident may be briefly explained as follows.

6. The car having been taken without permission by the young driver, the Motor Vehicle Accident Compensation Fund has become involved on behalf of the uninsured driver.

7. Following the examination for discovery of the driver in September, 2013, the Fund communicated with counsel for both the Kakinoki plaintiffs and the Kur plaintiffs to the effect that the Fund was taking the position that it was not obliged to respond to the plaintiffs’ claims unless all parties who might be liable were also pursued. The Fund took the position that the Township of King was a potentially liable party that had not been pursued. Shortly after receiving this warning, both plaintiffs initiated the actions against the Township of King which are the object of today’s motions.

8. In summary form, the following is the basis for the Fund’s allegation and the claims ultimately brought by these two groups of plaintiffs against the Township.

9. At his examination for discovery in 2013, the driver indicated that he had failed to spot any of the warning signs posted in advance of the curve where he lost control until it was too late and did not recall seeing the flashing amber warning light that illuminated the first of these. His memory – as revealed in the transcript – was quite spotty. However, the fact remains that he was unable to confirm noticing the flashing amber light.

10. This was not the first time the subject of the flashing amber light had come up in the matter. The York Regional Police investigated the accident both at the scene in the immediate aftermath and the following morning with the advantage of daylight. As is usual in such cases, plaintiffs’ counsel in the Kur case requested and received copies of the notes of the investigating officers. This happened in May, 2010. He forwarded copies of the notes so received to counsel for the Kakinoki plaintiffs in June, 2011.

11. The officer who investigated at night recorded in his notes that the flashing amber light was operating; the officer who investigated the following morning recorded that it was not operating “at this time”.

12. On the record before me, I cannot say if there is even contradiction between these two records since it is quite possible that the lights may have been on a daylight sensor or on a timer. Be that as it may, the police reports which both counsel had more than two years before they commenced their respective claims against the Township of King, raise the possibility that the state of repair of the warning signs might have played a contributing role to the accident.

13. The defendant Township of King moves for summary judgment dismissing both claims on the basis of section 4 of the Limitations Act, 2002, S.O. 2002, c. 24. In my view, they are entitled to succeed for two reasons.

14. Firstly, the plaintiffs had possession of all of the facts upon which they have launched these claims (in November, 2013 and May, 2014 respectively) for much more than two years. The possible existence of the non-functioning flashing amber warning light was disclosed in the police reports. Leaving aside the matter of due diligence and when these might have been sought, the evidence here is clear that one counsel had the information in hand in May, 2010 while the other received it no later than June, 2011. Both dates are well before the second anniversary prior to the commencement of their respective claims against the Township of King.

15. Pursuant to s. 5(2) of the Limitations Act, the plaintiffs are deemed to have discovered their claim on the day on which the act or omission complained of took place unless the contrary is proved. This means that the claim of both plaintiffs against the Township of King was deemed to have been discovered on August 26, 2008 (the date of the accident) unless the plaintiffs can prove a different date. The onus is on the plaintiffs to establish when they learned of the matters listed in s. 5(1)(a) of the Act which determine when a claim was “discovered”. If they fail in that onus, the presumption in s. 5(2) applies and the claim is deemed to have been discovered in 2009, much more than two years before the commencement of either action before me this morning.

16. While the two statements of claim are largely boiler plate, the only suggestion of “new” facts in any of the evidence presented has been the 2013 discovery evidence of the driver of the car in which he claimed no memory of having seen a flashing amber warning light. No new fact emerged on that discovery relative to the Township. The issue – the functioning or not of that light – had been raised years prior. There is no evidence of any issue other than the amber warning light that might engage the possible responsibility of the Township.

17. To the extent that the state of operation of the amber warning light is material to the possibility of a claim against the Township of King, that issue was both known and knowable shortly after the accident in 2009 and was actually known by the plaintiffs – through their counsel – more than two years prior to the two actions before me today were commenced.

18. Having commenced their claim more than two years after the injuries complained of had occurred, it fell upon them both (pursuant to s. 5(2)) to explain when the claim was discovered within the meaning of the Act. Discoverability is another matter (discussed below). The first onus, however, is to establish when actual discovery occurred so as to displace the presumed discovery date prescribed by s. 5(2) and actual discovery must, of course, by less than two years prior to the commencement of the claim.

19. Suggesting as the plaintiffs do today that their claims against the Township are even now undiscovered despite having been reduced to a statement of claim and will not be fully “discovered” until completion of examination for discovery of the Township is a fundamental misapprehension of the operation of limitation periods and the requirements of s. 5 of the Limitations Act. Section 5(1)(a) does not require knowledge of all of the evidence that will be required to prove a claim. Certainty as to the existence of material facts is similarly not a requirement. It is sufficient that the plaintiff have knowledge of the necessary elements of a prima facie case. To hold otherwise would make nonsense of the whole concept of a limitation period as embodied in the Limitations Act.

20. I can only find on the scarce facts of this case that both plaintiffs have failed to discharge their burden of proof under s. 5(2) of establishing a later date of discovery than the one presumed by the Act. Both actions having been commenced later than the second anniversary of that date, the defendant is entitled to succeed on its motion in both actions.

21. Secondly, and in the alternative, I must also find that the claims fail on the basis of the principle of discoverability (s. 5(1)(b) of the Limitations Act). Even if I were to hold that the discovery evidence of the driver of the car was the missing piece of the puzzle (and I do not), that discovery evidence could have been obtained earlier. The conflicting police reports were a known fact in 2010 (Kur) and 2011 (Kakinoki). The obtaining of such reports is such a routine and plainly obvious step for plaintiffs’ counsel to take, that I have no hesitation in finding that the Kakinoki plaintiffs knew or ought to have known of the issue by May-June 2010 when Kur counsel became aware. There were three survivors of the accident, of whom one was the driver. His evidence could have been sought voluntarily or compelled far earlier than it was (2013).

22. The question of the contributory role, if any, of the Township has been an open one since the date of the accident. It was in any event open to counsel to have investigated that matter in depth at any time. Due diligence is a positive obligation.

23. I hasten to add that I do not conclude that counsel failed in their obligation of due diligence here. Clearly the matter was examined and not pursued for reasons judged sufficient at the time – those reasons may well be as sufficient now as then. I do not have the evidence before me to judge and it is not relevant to my determination of these motions. If there is a claim to be advanced against the Township, there was a responsibility to investigate it sufficiently to make that determination in the circumstances of this case. There was no impediment to doing so in the months following the accident. The fact that these claims appear to have been triggered primarily – if not exclusively – by the threats of the Fund do not alter the analysis on the issue of discoverability and s. 5(1)(b) of the Limitations Act.

24. I indicated that I would address the matter of costs after hearing the companion motion brought by the Mr. Kakinoki plaintiffs in their original action from 2010 seeking to add the Township of King as an additional defendant by way of amendment. I shall proceed to hear that action now.

August 13, 2015

Post Script 14 August, 2015

25. After dictating the above reasons, I proceeded to hear the third motion (that of the Kakinoki plaintiffs seeking to add the Township of King to their existing action as an added defendant). I have delivered reasons today in that motion to which these reasons have been appended. Both parties delivered to me their outlines of costs in respect of all three motions (the two motions for summary judgment and the motion of the Kakinoki plaintiffs to add the Township as a party defendant to their existing proceeding).

26. As regards costs, both parties confirmed to me that there were no grounds for departing from the “usual” order being partial indemnity costs. The Township of King was successful on these two motions and delivered outlines of costs which I am assured have been allocated between the three motions I heard. There is no duplication of time or claim as between the three outlines.

27. The responding party plaintiffs on these two motions delivered their own outlines of costs which were considerably more modest than the claims of the Township of King. They submit that their own outline ought to be a guideline in considering the amount that is fair and reasonable in all of the circumstances.

28. I have carefully considered the factors listed in Rule 57.01. Among the factors of some importance here are:

a. The fact that these two motions have fully and entirely disposed of two actions which, had they proceeded to trial, would certainly have involved all parties in the expenditure of considerably more than was expended on these motions (i.e. they were produced an efficient result);

b. The amount claimed in the two actions was potentially significant;

c. There is no suggestion that responding counsel took any steps to lengthen or drag out the conduct of the motions – to the contrary, the hearing was conducted in a most efficient manner and both counsel were well prepared and briefed.

29. I shall allow the disbursements claimed by the Township of King in their costs outline for each of the Kur (CV-14-503785) and Kakinoki (CV-13-492057) actions as claimed (Kur: 1,202.67 including HST; Kakinoki: $985.02). As regards fees (including HST), the Township has claimed similar amounts for both motions ($12,535.66 for Kakinoki and $11,718.67 for Kur). The responding parties urge me to allow roughly half the amount claimed which would be more in keeping with their own costs outlines prepared in the event they had prevailed. Some element of the difference of course is that the Township has had to defend the entire action and bring this motion for summary judgment. Their materials were materially more detailed, and properly so. On the other hand, the motion did prove to be relatively straightforward and at least one of the parties (Kakinoki) effectively conceded the motion in its factum on the companion motion (dealt with separately). Having regard to all of the circumstances, I think it fair and reasonable to allow fees of $9,000 inclusive of HST for each of the two motions.

30. Accordingly, the defendant Township of King shall be entitled to an order that its costs be fixed in the amount of $9,985.02 inclusive of fees and disbursements to be paid by the plaintiffs in the Kakinoki matter (CV-13-492057) within thirty days hereof and an order that its costs be fixed in the amount of $10,202.67) inclusive of fees and disbursements to be paid by the plaintiffs in the Kur matter (CV-14-503785) within thirty days of the date hereof.

14 August 2015