Todhunter v. Owles; County of Lennox and Addington et al., Third Parties

[Indexed as: Todhunter v. Owles]

Ontario Reports

Ontario Superior Court of Justice,

Tausendfreund J.

September 15, 2015

127 O.R. (3d) 539 | 2015 ONSC 5656

Case Summary

Limitations — Discoverability — Plaintiff injured in motor vehicle accident — Motor vehicle accident report noting that driver of other vehicle lost control of his vehicle on icy road — Plaintiff suing driver — Statement of defence not referring to potential liability of municipalities based on failure to undertake proper road maintenance — Defendant stating at his examination for discovery that he lost control on black ice — Defendant obtaining leave to issue third party claim against municipalities — Motion judge granting plaintiff's subsequent motion to add municipalities as defendants after expiry of limitation period — Leave to appeal denied — Clock starting to run based on discoverability principle only when defendant raised issue of municipalities' winter road maintenance.

The plaintiff was injured when the car in which he was a passenger was struck by another vehicle. The motor vehicle accident report noted that the accident occurred on a county road, that the road was very icy and slippery, and that the driver of the other vehicle lost control of his vehicle. The plaintiff commenced an action against the driver of the other vehicle. The statement of defence did not make any reference to potential liability on the part of the municipalities based on their failure to undertake proper winter road maintenance. At his examination for discovery, the defendant stated that he lost control of his vehicle on black ice. The defendant subsequently obtained an order for leave to issue a third party claim for contribution and indemnity against the municipalities. The plaintiff moved successfully to amend his statement of claim to add the municipalities as defendants after the expiry of the applicable limitation period. The municipalities brought a motion for leave to appeal that order.

Held, the motion should be dismissed.

The plaintiff was met with an initial statement of defence that did not address winter maintenance standards. It was only when the defendant pointed his finger at the municipalities by making winter maintenance an issue that the clock started to run based on the discoverability principle. The municipalities failed to establish that the prerequisites set out in either rule 62.02(04)(a) or rule 62.02(04)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 were met.

Cases referred to

Brownhall v. Canada (Minister of National Defence) (2006), 2006 CanLII 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672, 146 A.C.W.S. (3d) 10 (S.C.J.); Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652, 55 O.A.C. 316, 6 C.P.C. (3d) 271, 32 A.C.W.S. (3d) 1026 (Div. Ct.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525, 30 O.A.C. 53, 28 C.P.C. (2d) 294, 10 A.C.W.S. (3d) 13 (Div. Ct.); Lingard v. Milne-McIsaac (2015), 125 O.R. (3d) 118, [2015] O.J. No. 1569, 2015 ONCA 213, 331 O.A.C. 258, 382 D.L.R. (4th) 294, [2015] I.L.R. I-5722, 77 M.V.R. (6th) 1, 71 C.P.C. (7th) 288, 252 A.C.W.S. (3d) 130; Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380, 13 C.P.C. (2d) 192, 2 A.C.W.S. (3d) 104 (H.C.J.); [page540] Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, [2005] O.J. No. 2746, [2005] O.T.C. 572, 19 C.P.C. (6th) 13, 140 A.C.W.S. (3d) 745 (S.C.J.); Wong v. Adler (2004), 2004 CanLII 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.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4)

MOTION for leave to appeal an order permitting the plaintiff to amend his statement of claim to add the moving parties as defendants.

W. WhiteKnight, for plaintiff.

S. Daniel Baldwin, for defendant.

K. Muszynski, for third party.

TAUSENDFREUND J.: —

Overview

1This is a motion for leave to appeal the order of Justice Tranmer ("motion judge") permitting the plaintiff to amend his statement of claim to add the named third parties as defendants after the expiry of the limitation period.

Facts

2The plaintiff's action arises out of a motor vehicle accident ("MVA") on November 23, 2011.

3The following additional dates are relevant to this motion:

(a) March 5, 2012, motor vehicle accident report ("MVAR") received by counsel for the plaintiff;

(b) May 22, 2012, statement of claim issued naming James Brian Owles as a defendant;

(c) September 23, 2013, defendant served and filed his statement of defence;

(d) March 31, 2014, examination for discovery of the defendant;

(e) May 2, 2014, defendant obtained order for leave to issue third party claim naming these municipal entities as third parties;

(f) May 27, 2014, plaintiff served motion seeking to amend statement of claim to add the third parties as defendants; and

(g) June 19, 2015, motion to amend statement of claim heard. [page541]

4The statement of claim alleges that the plaintiff was injured in the MVA as a result of the defendant's negligence.

5The MVAR completed the same day as the MVA specifically noted the following:

(a) the vehicle driven by the defendant lost control; and

(b) the roads were "very icy and slippery".

6The MVAR contains the following further information:

(a) there was freezing rain;

(b) there was drifting snow;

(c) the defendant lost control of his vehicle;

(d) the MVA occurred on a county road; and

(e) there was skidding and sliding involved.

7The statement of claim further alleges in part that

(a) the defendant was operating the defendant motor vehicle;

(b) the plaintiff was a right front-seat passenger in the vehicle which the defendant struck.

However, the statement of defence did not make any reference to potential liability of the third party municipalities, nor provide an allegation as to the cause of the collision of these two vehicles.

8At his examination for discovery on March 31, 2014, the defendant stated that he was travelling downhill approaching a bend in the road when he lost control of the vehicle, skidded into the opposite lane and collided with another motor vehicle heading in the opposite direction. He attributed the loss of control of his vehicle to black ice on a portion of the bend in County Road 8 where the MVA occurred.

9On May 2, 2014, the defendant obtained an order for leave to issue a third party claim for contribution and indemnity against these municipal entities. The third party claim was issued on May 8, 2014, and alleged that the MVA was caused by the failure of the third parties to undertake proper winter maintenance of County Road 8 on the day in question.

10The plaintiff's motion to amend the statement of claim to add these third parties as defendants was heard June 19, 2015. The motion judge made the following endorsement: [page542]

June 19, 2015

Decision on Motions

The subject motor vehicle collision occurred on November 23, 2011 in Canadian winter conditions. The Plaintiff was a passenger, not a driver. A driver is required to drive within the current weather and road conditions. From what the Plaintiff knew or reasonably ought to have known, this was a case of the Defendant driver failing to do so. Until the examination for discovery of the Defendant on March 31, 2014, there was no suggestion, even in the MVAR, that acts or omissions by the County or Town caused or contributed to the crash. The MVAR does not suggest negligence on the part of the County or the Town with regard to road maintenance. Indeed, the Defendant's discovery evidence "then I probably hit a patch of black ice and couldn't control the vehicle" suggests this motion to add is being brought out of an abundance of caution.

On the facts before me, the Plaintiff had demonstrated due diligence in determining the parties liable for the crash by obtaining the MVAR and by moving to discovery in March 2014, and by bringing this motion shortly thereafter.

The facts and the law make this case an appropriate one for the Court to order the relief sought. The County of L&A and the Town of Napanee shall be and are hereby added as parties Defendant together with the appropriate amendments to the Statement of Claim.

Analysis

11As stated, these third parties seek leave to appeal the decision of the motion judge.

12Leave to appeal is governed by rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

62.02(4) Leave to appeal shall not be granted unless,

(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

(Emphasis added)

13Addressing what constitutes a "conflicting decision" within the meaning of this rule, the Divisional Court in Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542, [1992] O.J. No. 652 (Div. Ct.), at para. 7, stated:

An exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a "conflicting decision". It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such a discretion. [page543]

Addressing the question of whether it is "desirable that leave to appeal be granted" under the first part of the above two step test, Catzman J., in Rankin v. MacLeod, Young, Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569, [1986] O.J. No. 2380 (H.C.J.), at para. 15, concluded "that the issues must involve a question of general or public importance that require an appellate review. The issues must extend beyond the interests of the parties before the court."

14Addressing the second step of this two-part test, DiTomaso J. in Brownhall v. Canada (Minister of National Defence) (2006), 2006 CanLII 7505 (ON SC), 80 O.R. (3d) 91, [2006] O.J. No. 672 (S.C.J.), stated at, para. 30:

. . . it is not necessary for the moving party to convince the court that the decision it seeks to appeal from is wrong or even probably wrong. It is sufficient for the moving party to show that there is a good reason to doubt the correctness of the decision . . . the court should ask itself whether the correctness of the decision in question is open to "very serious debate" and, if so, is it a decision that warrants resolution by a higher level of judicial authority.

15Also addressing step two of this "leave to appeal" test, the Divisional Court in Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110, [1988] O.J. No. 525 (Div. Ct.), held, at para. 7, that the matter must be of "general importance, not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice" [citations omitted].

16In his motion to add these third parties as defendants after the expiry of the statutory limitation period, the plaintiff relies on the discovery principle. The plaintiff states that it was not until the defendant's examination for discovery in March 2014 that it was first apparent that the defendant raised the condition of the road as a possible cause of the collision. The defendant then pointed to the now municipal third parties and alleged a possible shortfall by them of adequate winter maintenance.

17The municipal third parties state that the plaintiff had actual knowledge of the road conditions within four months of the collision when he received the MVAR. They state that proper exercise of "due diligence" would have provided the plaintiff with sufficient information to have added these municipalities as party defendants within the two-year limitation period. What the plaintiff did not face, however, until the discovery of the defendant in March 2014 was the defendant's position that the winter condition of the road had a causal connection to the [page544] collision of these two vehicles. The municipal third parties rely on Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460, [2004] O.J. No. 1575 (S.C.J.) and Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, [2005] O.J. No. 2746 (S.C.J.) to support their position that the plaintiff has failed to advance a reasonable explanation on proper evidence as to why these proposed municipal defendants could not have been added as defendants within the two-year limitation period. However, I note that the Ontario Court of Appeal in Lingard v. Milne-McIsaac (2015), 125 O.R. (3d) 118, [2015] O.J. No. 1569, 2015 ONCA 213 stated that the standard of "reasonable diligence" proposed by Master Dash in Wong v. Adler, supra, and in Wakelin v. Gourley, ibid., was unnecessarily high. Lingard, supra, held that it was reasonable and sufficient for the plaintiff to have relied on the evidence available in the MVAR.

18The motion judge in his reasons stated that "the subject motor vehicle collision occurred on November 23, 2011, in Canadian winter conditions". These municipal third parties appear to advance the proposition that each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants to address the standard of care regarding winter maintenance. In my view, that cannot and should not be so.

19The plaintiff in this action was met with an initial statement of defence that did not address winter maintenance standards. It was only when the defendant "pointed his finger" at these proposed municipal defendants by making winter maintenance an issue that the clock started to run based on the discovery principle.

20I find that neither of the two-step tests in rule 62.02(4) apply to these facts. Leave to appeal is denied.

21Unless I have heard from counsel within 15 days of the release of these reasons, I assume that they have resolved the matter of costs arising from this motion.