CITATION: Kande v. General Motors LLC, et al., 2015 ONSC 6659
COURT FILE NO.: CV-14-681-00
DATE: 2015 10 28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Sukhjinder Singh Kande v. General Motors Llc, Simrut Trucking Inc., Bodkin Leasing Corporation, Riordan Leasing Inc., Old Republic Insurance Company Of Canada And Bay Logistics Inc.
BEFORE: Lemon J.
COUNSEL: C. Scotchmer, For The Moving Defendants, Simrut Trucking Inc., Bodkin Leasing Corporation, Riordan Leasing Inc.
C. Verconich, For The Respondent Defendant, Bay Logistics Inc.
HEARD: October 9, 2015
E N D O R S E M E N T
The Issue
[1] The defendants, Simrut Trucking Inc., Bodkin Leasing Corporation and Riordan Leasing Inc. seek an order granting leave to amend their statement of defence and cross-claim. I will refer to all of those defendants as Simrut. The proposed cross-claim seeks not only contribution and indemnity from the defendant, Bay Logistics Inc., it also seeks to advance a cross-claim for damages against Bay Logistics.
[2] Bay Logistics does not oppose the amendment to advance the claim for contribution and indemnity. It does oppose the claim for damages on the basis that a two-year limitation period has expired and Simrut has not met the test for leave to be granted.
Background
[3] The action arises from a motor vehicle accident which occurred on February 28, 2012. Mr. Kande alleges that he was injured when he lost control of his tractor-trailer vehicle. He initially brought a claim against all of the defendants but not Bay Logistics. Mr. Kande was driving a tractor-trailer carrying GM engine blocks. Bodkin leased the tractor to Simrut and Riordan leased the trailer to Simrut. Mr. Kande was driving the vehicle with the consent of Simrut. The claim against Old Republic has been discontinued.
[4] Simrut says that it had no knowledge of any involvement of Bay Logistics in the accident until April 29, 2014. At that time, counsel for the defendant General Motors advised all parties that Bay Logistics was responsible for the loading of the cargo in question. Even then, Simrut says that it had no knowledge of any negligence on the part of Bay Logistics.
[5] Based on the information from GM, Mr. Kande moved to add Bay Logistics as a defendant. On consent, Bay Logistics was added as a defendant November 28, 2014. As a result, Simrut says that they were not aware of Bay Logistics’ role and negligence until receiving GM’s productions on June 25, 2015.
[6] Bay Leasing points out that in Simrut’s affidavit of documents there is a police report and witness statement of Mr. Kande printed April 12, 2012. In his statement to police, Mr. Kande alleges the cargo on the tractor-trailer was improperly loaded.
Positions of the Parties
[7] It is the position of Simrut that any limitation period with respect to the cross-claim for damages against Bay Logistics commenced at the earliest on April 29, 2014. Until then, they had no knowledge of the identity of Bay Logistics or its responsibility for loading the trailer. More importantly, Simrut submits that the limitation period actually began to run as of June 25, 2015, when they received the documentation from GM with respect to Bay Logistics’ potential negligence.
[8] Bay Logistics submits that if I find that Simrut actually knew of the facts making up the cause of action more than two years before the motion is brought, the motion must be denied as this new claim would be out of time.
[9] Alternatively, Bay Logistics submits that if the issue is due diligence rather than actual knowledge, then Simrut has an evidentiary burden to explain what was done to ascertain the facts constituting the new cause of action and why those facts could not, with due diligence, have been known earlier. Bay Logistics submits that Simrut has not led any evidence to demonstrate reasonable diligence in discovering the claim for damages against Bay Logistics. Without that evidence of due diligence within the two-year limitation period, the motion should be dismissed.
[10] Bay Logistics acknowledges that if there is a triable issue on this issue, I should permit the amendments with leave to Bay Logistics to plead a limitations defence. Simrut does not dispute Bay Logistics’ right to plead that defence if the amendment is allowed.
Legal Authorities
[11] 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.
[12] 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.
[13] Prima facie the limitation period in this action expired two years after the date of the accident; that is, February 28, 2014. The expiry of a limitation period creates a presumption of prejudice to the defendants that can be rebutted.
[14] 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.
[15] Since the passage of the Limitations Act, the Court of Appeal has demonstrated a tendency to apply a strict interpretation of statutory limitation periods.
[16] 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.
[17] The moving party has the onus to rebut the presumption of knowledge stated in s. 5(2) of the Limitations Act; that is, the presumption that it knew of its right to seek damages within two years of the date of the accident. In order to do so, it must satisfy the court that the discoverability principle contained in s. 5(1)(b) of that Act applies to extend the limitation period.
[18] The test for discoverability 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 he or she has the information to commence an action, provided that the plaintiff can demonstrate it exercised reasonable or due diligence to discover the information.
[19] 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 moving party, having exercised reasonable or due diligence, first knew of its right to seek damages on its own behalf as a result of the accident no earlier than two years prior to the motion.
[20] 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 moving party learned that it had a cause of action against the defendant, or, when through the exercise of reasonable diligence, it ought to have learned that it had a cause of action against the defendant. These facts constitute genuine issues for trial and, as such, it is not appropriate for a motions judge to assume the role of a trial judge by resolving them.
[21] 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 claim should be added with leave to the defendant 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 moving party or its counsel 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
[22] Given that Bay Logistics submits that there is insufficient evidence to support the request, a review of the admitted chronology is of assistance.
[23] The motor vehicle accident occurred February 28, 2012.
[24] Although the police statement of April 12, 2012, includes a statement from Mr. Kande, it only sets out that he believed that the loading was a cause of the accident; he did not provide any information as to who did the loading.
[25] The statement of claim was issued February 12, 2014. In that statement of claim, Mr. Kande pleads that GM and its “employees were responsible for the proper loading of the cargo in question, the particulars of which are unknown to the plaintiff at this time.”
[26] On April 29, 2014, GM’s counsel wrote to plaintiff’s counsel, “You should note that the company that was responsible for the loading of the cargo in question is called Bay Logistics Inc.”
[27] On June 2, 2014, Mr. Kande served a motion to add Bay Logistics as a party defendant. In its supporting affidavit, Mr. Kande’s counsel said:
On August 8th, 2012, via fax only, I sent a follow up letter to General Motors as I had not received a reply from them…
To date, General Motors did not contact my office by any means in response to the letters I had sent on May 25 and August 8th, 2012.
Without the benefit of General Motors contacting me, I could not ascertain the existence of any other entities that potentially would have been a necessary and proper party to the herein action.
[28] As a result of that evidence, Bay Logistics consented to an order amending the statement of claim to add Bay Logistics as a defendant. Prior to the consent, however, Bay Logistics defended against the motion. In its factum, it acknowledged that the plaintiff first discovered the identity of Bay Logistics from the GM letter of April 29, 2014.
[29] GM filed its statement of defence June 18, 2015. It provided its productions June 25, 2015.
[30] While there is no affidavit evidence from the principles of the Simrut companies, there is ample evidence from Mr. Kande, his counsel and the investigator on behalf of Simrut’s insurers, that apparently all appropriate steps were taken to investigate the claim. Even so, it appears that Simrut did not know of Bay Logistics role until April 2014 and its alleged negligence until June 2015. There is certainly a triable issue as to whether Simrut knew or ought to have known at least prior to April 2014. As a result, I need not delve into the question of whether Simrut was aware by April 29, 2014 or June 25, 2015; the result is the same for this motion.
Result
[31] Accordingly, the moving defendants are granted leave to amend their statement of defence and cross-claim as set out in the notice of motion without prejudice to Bay Logistics Inc. to plead or argue that the limitation period for the cross-claim has expired.
Costs
[32] If the moving defendants seek costs, they shall provide their written submissions within the next 15 days. Bay Logistics shall respond within 15 days thereafter. Each submission shall be no more than three pages in length, not including any bills of cost or offers to settle.
Lemon J.
DATE: October 28, 2015
CITATION: Kande v. General Motors LLC, et al., 2015 ONSC 6659
COURT FILE NO.: CV-14-681-00
DATE: 2015 10 28
Superior Court Of Justice – Ontario
Re: Sukhjinder Singh Kande v.
General Motors Llc, Simrut Trucking Inc., Bodkin Leasing Corporation, Riordan Leasing Inc., Old Republic Insurance Company Of Canada And Bay Logistics Inc.
Before: Lemon, J.
Counsel: C. Scotchmer, For The Moving Defendants, Simrut Trucking Inc., Bodkin Leasing Corporation, Riordan Leasing Inc.
C. Verconich, For The Respondent Defendant, Bay Logistics Inc.
Endorsement
Lemon J.
DATE: October 28, 2015