Munas v. Dhanani et al.

[Indexed as: Munas v. Dhanani]

Ontario Reports

Ontario Superior Court of Justice,

Hood J.

September 11, 2015

127 O.R. (3d) 457 | 2015 ONSC 5443

Case Summary

Limitations — Discoverability — Plaintiff suing operator of leased vehicle for damages arising from motor vehicle accident — Plaintiff aware that vehicle was leased but not realizing that operator was not lessee — Plaintiff moving successfully after expiry of two-year limitation period to add lessee as defendant — Lessee's motion for summary judgment dismissing action against him as statute-barred granted — Lessee's failure to oppose motion to add him as defendant not estopping him from bringing summary judgment motion based on limitation defence — Plaintiff not contacting lessor within limitation period to ascertain identity of lessee — Plaintiff failing to demonstrate that he acted with due diligence.

The plaintiff was injured in a multi-vehicle accident. He was aware that one of the other vehicles was leased. When he commenced an action for damages for personal injuries, he named the operator of that vehicle as a defendant. He did not realize that the operator was not the lessee. After the expiry of the applicable two-year limitation period, the plaintiff moved successfully to add the lessee, Y, as a defendant. Y did not oppose that motion. Y subsequently brought a motion for summary judgment dismissing the action as against him on the ground that it was statute-barred.

Held, the motion should be granted.

Y's failure to oppose the motion to amend the statement of claim to add him as a defendant did not estop him from bringing the summary judgment motion based on a limitation defence. Despite knowing that the vehicle in question was leased, the plaintiff made no attempt to contact the lessor to ascertain the identity of the lessee within the limitation period. The plaintiff failed to demonstrate that he acted with due diligence.

East York (Borough of) v. Geos Co. (1984), 46 O.R. (2d) 375, [1984] O.J. No. 3215, 43 C.P.C. 307, 25 A.C.W.S. (2d) 339, 1984 2137 (H.C.J.), consd

Other cases referred to

Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Miaskowski (Litigation guardian of) v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.); Panther Film Services Inc. v. Tayar, [2012] O.J. No. 6191, 2012 ONSC 7226 (S.C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.)

Statutes referred to

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 192(2) [as am.], (4)

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 5

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04, 20.02, 20.04(2), 21, 26.01, 39.01(4)

MOTION for summary judgment dismissing an action as against the moving party.

Peter S. Carlisi, for plaintiff.

Lorraine E. Takacs, for Wasiu Yusuf.

Carl Vondercrone, for John MacKenzie and Christiane Ingrid MacKenzie. [page459]

Jocelyn Brogan, for 1795614 Ontario Inc., c.o.b. as Road Star Car Rental.

HOOD J.: —

The Accident

[1] On August 20, 2009, a multi-vehicle accident took place in Toronto on Bloor Street near Bay Street. The plaintiff was travelling eastbound on Bloor. The plaintiff was stopped. Behind him was the Dhanani vehicle. He too was stopped. Next in line was the 1795614 Ontario Inc. ("179") vehicle driven by Vince Henderson ("Henderson"). Next and last was the MacKenzie vehicle.

[2] The plaintiff was struck by the Dhanani vehicle. He claims he was struck twice. Dhanani claims he was struck by Henderson, which caused him to hit the plaintiff. He claims he was hit once. Henderson claims he was struck by MacKenzie, which caused him to hit Dhanani and therefore the plaintiff. MacKenzie claims that she did not cause the accident but only hit Henderson after he had already hit Dhanani. Everyone agrees this was a low-speed collision.

Litigation History

[3] On August 16, 2011, the plaintiff issued his claim. He sued the owner and operator of the Dhanani vehicle, the owner and operator of the Henderson vehicle, and the owner and operator of the MacKenzie vehicle. As is clear from the pleading, the plaintiff knew that the car being operated by Henderson was a rental vehicle owned by 179. What the plaintiff apparently did not know was that while Henderson was the operator of the vehicle, there was also a lessee.

[4] On October 22, 2012, the plaintiff brought a motion to add Wasiu Yusuf ("Yusuf") as a defendant. The motion was eventually heard on May 7, 2013, and Master Hawkins made an order, unopposed by Yusuf, adding him as a defendant. The allegation was that Yusuf was the lessee of 179 and he had provided the vehicle to Henderson to operate.

[5] On January 15, 2014, Yusuf defended, denied he provided the vehicle to Henderson and cross-claimed against all of the other defendants, including Henderson, claiming they were all negligent in some manner. Among his defences, he pleads the claim is statute-barred.

[6] The plaintiff took no steps to attack Yusuf's pleading. On July 2, 2014, Yusuf was examined for discovery.

[7] Now Yusuf brings a motion for summary judgment seeking to dismiss the plaintiff's claim as against him. He argues, first, [page460] that the claim is statute-barred, being that it is over two years from when the claim against him should have been discovered; and second, that there is no genuine issue with respect to his liability for the plaintiff's claim. Yusuf submits there is no evidence to show he is at fault for the accident.

[8] In his affidavit on the motion, Yusuf admits he rented the Henderson vehicle. He also now admits, contrary to his defence, that he did so specifically for Henderson's use and allowed Henderson to drive it as his friend. He states he has no first-hand knowledge of the accident, and this combined with there being no evidence to show he was negligent in allowing Henderson to drive, should result in the dismissal of the claim as against him.

[9] Counsel for Yusuf also asked the court to dismiss the claim as against Henderson as part of the dismissal against Yusuf. However, this was not the motion before me. The motion is solely for summary judgment dismissing the action against Yusuf. While Yusuf and Henderson are now both represented by the same counsel and have coverage from the same insurer, which was not initially the case, I fail to see how I can consider a dismissal against Henderson.

Limitation Arguments

[10] Yusuf, on this motion, argues the claim against him arose on August 20, 2009 (the date of the accident), and the motion to add him was brought late. The plaintiff argues on this motion that the claim against Yusuf was not discovered until the examination for discovery of Yusuf on July 2, 2014, when Yusuf admitted under oath he was the lessee of the vehicle. This argument is made despite the fact that the motion to add Yusuf was brought a year and a half before on October 22, 2012. The plaintiff also argues that Yusuf is estopped from bringing this motion because he did not oppose the motion to amend before the master or at the very least did not have Master Hawkins add a paragraph to his order granting him leave to plead the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Finally, the plaintiff argues that the issue of discoverability is always a triable issue and ought not to be dealt with on a summary judgment motion.

[11] For the reasons that follow, I grant Yusuf's motion for summary judgment on the limitation argument. This makes Yusuf's secondary argument that there is no genuine issue as to his fault for the accident moot. For reasons set out later, I do not feel it appropriate for me to deal with this secondary argument, if I am wrong on the limitation issue. [page461]

[12] I find that Yusuf is not estopped from bringing a motion based on a limitation defence. While it is an option for a party-to-be to challenge a motion under rules 26.01 and 5.04 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to amend a claim seeking to add them as a party defendant, I do not find that they must do so at that stage or be estopped from raising it later. Certainly, it is an option to oppose then but it is not mandatory to do so. The defendant, once added, is then entitled to plead their defence, including a limitation defence. Like any defendant, they are then free to bring a summary judgment motion on that defence.

[13] If Yusuf had argued the limitation issue on the motion to add and amend and had been unsuccessful, then perhaps the plaintiff might have an argument based on issue estoppel or res judicata. But that is not the case where Yusuf simply did not oppose the motion.

[14] If the plaintiff felt Yusuf was estopped from raising the limitation defence, he could have brought a motion to strike the defence under Rule 21 or his own summary judgment motion. He did not.

[15] Nor do I find, as argued by the plaintiff, that as a general proposition limitation defences should only be dealt with at trial. The case relied upon by the plaintiff at East York (Borough of) v. Geos Co. (1984), 46 O.R. (2d) 375, [1984] O.J. No. 3215, 1984 2137 (H.C.J.) does not stand for this proposition. This general proposition argued by the plaintiff also ignores the fact that summary judgment motions based upon limitation defences are routinely granted if the defendant has been able to satisfy the test as set out in rule 20.04(2) and as analyzed by the Supreme Court in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, and specifically as set out at paras. 49, 50, 57 and 66 therein.

Limitation and Discoverability

[16] Under s. 4 of the Limitations Act, 2002 (the "Act"), the basic limitation period is two years from the day the claim is discovered. A claim includes injury, loss or damage and that the injury, loss or damage was caused by or contributed to by the act of the person against whom the claim is made.

[17] The discoverability rule in s. 5 of the Act has the effect of delaying the running of the limitation period until the point at which the plaintiff discovers he has a claim or ought to have discovered he has a claim, with the exercise of reasonable diligence. There is a statutory presumption that the plaintiff knows he has [page462] a claim on the day of the incident. This presumption may be rebutted by the plaintiff.

[18] In order to rebut the statutory presumption that the plaintiff knew of the elements of his claim on August 20, 2009, when the accident occurred, the onus is on him to show his claim is not statute-barred and he behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue: see Miaskowski (Litigation guardian of) v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.), paras. 66 and 67; and Panther Film Services Inc. v. Tayar, [2012] O.J. No. 6191, 2012 ONSC 7226 (S.C.J.), para. 12.

[19] On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and the record contains all of the evidence the parties will present at trial: see Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.), at para. 33. This principle ties in with what is required of a plaintiff when a limitation defence is raised, as here.

[20] In response to the motion, the plaintiff relies upon the affidavit of his lawyer, Mr. Kapelos, sworn June 1, 2015. As an exhibit to this affidavit, there is the motion record from the motion before Master Hawkins to add Yusuf, which contains the affidavit of Mr. Kapelos sworn October 22, 2012.

[21] There is nothing in the affidavit sworn October 22, 2012 which sets out any efforts by the plaintiff to make any inquiries as to the lessee of the Henderson vehicle between August 20, 2009 and August 20, 2011, when the presumptive limitation period passed. The plaintiff clearly knew prior to August 20, 2011, that the Henderson vehicle was leased as he named the rental company in his claim. The rental company's style name was on the collision report of Dhanani, completed shortly after the accident.

[22] There is a statement, in para. 10 of Mr. Kapelos' October 22, 2012 affidavit, that on July 3, 2012, it came to the plaintiff's attention that the renter of the Henderson vehicle was Yusuf. Apparently, this took place in a conversation between Mr. Carlisi, one of Yusuf's lawyers, and a representative of some insurer. There is no proper evidence of this conversation. There is no statement of Mr. Kapelos' information and belief as to this conversation. It is merely mentioned in a letter of Mr. Carlisi's of July 18, 2012, which is then appended as an exhibit to Mr. Kapelos' affidavit.

[23] In any event, this alleged conversation took place long after August 20, 2011, and cannot assist the plaintiff in showing [page463] due diligence prior to August 20, 2011. I also note that the plaintiff's lawyers, if they did not know for certain, had a strong indication that Yusuf was the renter of the Henderson vehicle earlier than July 3, 2012, when they received the letter of October 11, 2011 from the adjuster for the rental company, in response to the initial statement of claim. On the subject line, Yusuf is indicated to be the renter of the vehicle operated by Henderson. No explanation is given by the plaintiff as to why this did not motivate the plaintiff to move earlier to add Yusuf to the claim or why the plaintiff waited until after the July 3, 2012 conversation. This is more of a general observation, however, as this letter was received after August 20, 2011, the presumptive limitation date.

[24] In the second affidavit of Mr. Kapelos sworn June 1, 2015, in response to the summary judgment motion, he again mentions the telephone conversation of July 3, 2012. His affidavit again fails to follow rule 39.01(4) or rule 20.02 with respect to this alleged conversation, although, as stated previously, this alleged conversation is of no assistance to the plaintiff.

[25] The only evidence put before the court to show the steps taken by the plaintiff prior to the expiry of the presumptive limitation period is one letter dated March 28, 2011, written to the insurer of Dhanani and referred to in Mr. Kapelos' second affidavit. In this letter, Mr. Carlisi asks Dhanani's insurer to provide him with any information they had with respect to the owners and operators of the vehicles that may have been involved in the collision. Mr. Kapelos, in his affidavit, fails to state whether there was a response, what it was if there was one and what, if anything, the plaintiff did following the letter of March 28, 2011.

[26] The letter is not to 179's insurer. There is no letter to 179 or its insurer in the evidence. There is nothing other than this one letter to show the plaintiff's due diligence from the time of the accident to August 20, 2011 in order to discover who the plaintiff should sue. As mentioned previously, at some point prior to August 20, 2011, the plaintiff discovered the Henderson vehicle was leased and Henderson was the operator. However, there is no evidence as to when this was discovered or what, if anything, the plaintiff did with this information to attempt to determine the renter.

[27] I find that the plaintiff has failed to demonstrate any reasonable due diligence during the two-year period following the accident. There is an obligation to put into evidence before the court the steps taken to ascertain the identity of the tortfeasors and to give a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. [page464] There is no evidence of any steps taken other than the one letter written to one of the defendants. There is no reasonable explanation given as to why the plaintiff could not identify Yusuf as a defendant, let alone any explanation. The plaintiff did not even write the proper defendant. At the very least, he should have written 179, who was known to be the lessor of the vehicle or, alternatively, 179's insurer. As the cases have held, it is not a high threshold to meet to demonstrate reasonable due diligence. In my view, the plaintiff did not come close.

[28] I have not considered Yusuf's alternative argument for summary judgment that there is no possible basis for a finding of negligence against him. Yusuf has been added as a lessee under s. 192(2) and (4) of the Highway Traffic Act, R.S.O. 1990, c. H.8. As an "owner" under s. 192(2), he is liable for the damage sustained by the plaintiff by reason of Henderson's negligence. Yusuf's alternative argument is that if Henderson is not negligent, then neither is he. But in order to consider this argument, the court must make a finding relative to Henderson too. The motion was only in relation to Yusuf and in my view it is not appropriate to seek to dismiss the claim against Yusuf without also seeking to dismiss the claim against Henderson. Nor is it appropriate for me to make findings in relation to this motion by Yusuf, which could somehow create an estoppel argument if a motion is brought in relation to Henderson.

[29] With the claim as against Yusuf being dismissed on the limitation argument, Henderson is free to bring his own motion, if so advised, on the argument that there is no basis for a finding of negligence on his part.

[30] As to costs, Yusuf is presumptively entitled to costs of the motion being successful. Yusuf and the plaintiff have already provided me with their respective costs outline and bill of costs. If Yusuf and the plaintiff are unable to agree on costs, they may make brief written submissions of no more than three pages, beginning with Yusuf's submissions within 15 days of the release of these reasons followed by the plaintiff's submissions within a further 15 days thereafter. There are no costs for or against the MacKenzie defendants or 179, who both had counsel attending the motion on a watching brief.

Motion granted.

End of Document