Court File and Parties

Court File No.: C-3308-14 Date: 2016-06-16 Ontario Superior Court of Justice

Between: BAYDEN ZACHARY AZZEH (represented by his Litigation Guardian, INGRID NANCY DION) Plaintiff – and – ROGER LEGENDRE and SUSAN LEGENDRE Defendants – and – JULIA NEVILLE Third Party

Counsel: Gary Mazin, for the Plaintiff/Moving Party No one appearing for the Defendants, Roger Legendre and Susan Legendre No one appearing for the Third Party Stuart Zacharias, for the proposed Defendant City of Greater Sudbury /Responding Party William G. Scott, for the proposed Defendants, James Wallbridge, Wallbridge, Wallbridge and Julia A. Gagnon/Responding Parties

Heard: March 8, 2016

Decision on Motion

HENNESSY, J.

The Motion

[1] The moving party Bayden Zachary Azzeh (represented by his litigation guardian, Ingrid Nancy Dion) (“Bayden”) brought a motion, amongst other things, to add the City of Greater Sudbury (the “City”) as a defendant in this action.

[2] The following issues arise from the plaintiff’s request:

a. Is the City prejudiced by this late addition?

b. Did the plaintiff meet the ten day notice requirement as set out in s. 44 (10) of the Municipal Act, S.O. 2001, C.25?

c. Is the plaintiff within the two year limitation period?

The Facts

[3] The minor plaintiff, Bayden, suffered traumatic brain injuries when he was involved in a motor vehicle accident in the City of Greater Sudbury on September 7, 2007. On the day of the accident, Bayden was 17 days old. Julia Neville, Bayden’s mother, was operating the vehicle at the time of the accident.

[4] Wallbridge, Wallbridge, Julia Neville’s lawyers, issued a statement of claim on her own behalf in April 2008. Ultimately, Julia Neville’s claim was settled in August 2011.

[5] In June 2014, Wallbridge, Wallbridge issued the statement of claim in this action on behalf of Bayden, represented by his litigation guardian Julia Neville, claiming damages against the named defendants. [^1]

[6] The plaintiff changed lawyers to Mazin and Associates on May 25, 2015.

[7] On May 31, 2015, the new lawyer gave notice to the City of a potential claim against it.

[8] The plaintiff now seeks to amend the statement of claim to add multiple defendants and increase the prayer for relief.

[9] The plaintiff’s lawyer has a forensic engineering report on the design of the intersection, the alignment of the curve, the placement of signs, and road markings.

[10] Ingrid Nancy Dion was named substitute litigation guardian by court order dated October 30, 2015.

Analysis

Prejudice to the City of Greater Sudbury

[11] The test for prejudice is whether the City will suffer prejudice that cannot be compensated for by costs or an adjournment if it is added as a defendant at this late stage.

[12] The plaintiff submits that by virtue of Rules 5.04(2) and 26.01 of the Rules of Civil Procedure the proposed defendant should be added if the plaintiff can demonstrate that the amendment will not result in any prejudice that cannot be compensated for by costs or an adjournment.

[13] The plaintiff submits that the forensic engineering report has identified the following factors which are said to have contributed to the accident: pavement markings, signage, lane markings, placement of stop signs and the use of a stop bar, the angle of the intersection, the absence of a centerline on Fisher Road.

[14] The plaintiff has revised their proposed amendments to the statement of claim to focus on these specific issues and more specifically, the plaintiff is not claiming road maintenance or road repair as a factor contributing to the accident.

[15] The City claims that it will suffer prejudice in its ability to defend itself if added as a defendant at this late date. In particular, the City cites fading memories of its staff, lost complaints, and destroyed maintenance records. On this motion, however, the plaintiff’s proposed amendments to the pleading do not include claims relating to maintenance and inspections.

[16] The plaintiff notes that information disclosed at the examinations show that police investigation records exist, including multiple colored photographs of the scene, several witness statements, and police notes describing the weather conditions, pavement marking, skid marks, road surface conditions, lighting, and curve alignment. The City has also admitted that the road design and the engineering records are still available and that the intersection is still oriented substantially as it was in 2007 and that there have been no changes to the placement of the pavement marking or stop sign at the intersection in question.

[17] I am satisfied that the records relating to the issues on which the plaintiff has claimed against the City have been preserved and in any event, there is no change to the situation on the ground. The existence of photographs and records from the police and the engineering and design reports provide both parties with ample material on which to argue this claim. The City has not identified any other specific area of prejudice caused by the passage of time. The usual concerns arising from the loss of records or the loss of staff who might have assisted the City in defending this claim do not arise in this case which is based primarily on road design and associated issues, i.e. pavement marking and signage.

[18] I am satisfied that there is no prejudice to the City occasioned by the passage of time.

The Limitations Act

[19] The City asserts that the two year limitation period began to run in April 2008 and has long expired. In support of this argument, the City cites the agreement signed by the mother with the original law firm which included the statement: “The contingency fee agreement is for both mother and son from the same accident”. The City also relies on the fact that the mother applied for accident benefits for Bayden in 2011 and signed as “guardian” on this application.

[20] However, the plaintiff submits that the limitation period with respect to him did not start running until a litigation guardian formally represented him or a litigation guardian was appointed.

[21] Section 6 of the Limitations Act, 2002, S.O.2002, C. 24, Sched. B. stipulates that the limitation period does not run during any time in which a person is a minor and is not represented by a litigation guardian. On the materials before me, the only evidence is that a statement of claim was issued in July 2014 showing Julia Neville as the litigation guardian. There is no evidence of Ms. Neville’s appointment prior to this time. Oddly, there is no affidavit in the file with respect to the appointment of Julia Neville as litigation guardian, which presumably occurred sometime before or around the time the statement of claim was issued on June 11, 2014.

[22] In Serban Estates (Re), 48 E.T.R. (3d) 78, the court was asked to impose obligations arising from the discoverability principle on the litigation guardian. Strathy J. (as he then was) rejected the argument that the discoverability principle should be imported into the sections of the Limitations Act so that the clock would start ticking even though no proceedings have been commenced. He says that to do so would defeat the entire purpose of s. 6 of the Limitations Act—to protect minors.

[23] I find that the minor Bayden was not represented by a litigation guardian for the purpose of this action until June 11, 2014, at the earliest. The actions of Ms. Neville do not support the conclusion that she had consented to being appointed litigation guardian before that date. On September 15, 2015, the moving party filed a notice of motion proposing to add the parties. This motion was heard on March 8, 2016.

[24] The limitation period for claims arising from this action ended on June 11, 2016. Any decision adding the parties can be made nunc pro tunc to June 10, 2016.

The Municipal Act

[25] Section 44(10) of the Municipal Act provides that no action shall be brought against a municipality for failure to keep a highway in a reasonable state of repair unless notice of the occurrence is made to the municipality within ten days.

[26] Section 44(12) of the Municipal Act states that failure to give notice does not bar an action if the court finds that there was a reasonable excuse for want of notice and the municipality is not prejudiced in its defense.

[27] The plaintiff submits that the court should give the “reasonable excuse” phrase a broad and liberal interpretation and that the City is not prejudiced. The moving party further submits that where, as I have found here, the passage of time does not prejudice the City, a liberal interpretation is warranted: See Cena v. Corporation of the Town of Oakville, 2009 ONSC 1650, at para 15.

[28] The plaintiff was a newborn infant at the time of the accident. Promptly after the accident in 2007 the mother retained the original solicitors and commenced an action on her own behalf. In October 2011, she applied for statutory accident benefits on behalf of her son Bayden. In 2014, the previous lawyers issued the statement of claim. There is no affidavit of a litigation guardian before the court dated 2014 or any time prior.

[29] A minor’s rights with respect to the Limitations Act are protected and the time does not begin to run until the appointment of a litigation guardian. See Limitations Act, at s. 6. As there is no evidence before the court that a litigation guardian represented the plaintiff until the claim was filed, I find the date on which the claim was filed is the earliest date the time began to run.

[30] I agree with the proposition that being an infant at the time of the accident is a reasonable excuse and in the circumstances, it would not be fair and reasonable to hold an infant to the ten day notice requirement: See Murphy v. Welsh, [1993] 2 S.C.R. 1069, at para 12. In Delahaye v. Toronto, 2011 ONSC 5031, the court described the notice requirement under the Municipal Act as “akin to a limitation period”. I accept the notion that while the limitation period does not run while a plaintiff is a minor and not represented by a litigation guardian, neither does it run for the purposes of the notice period.

[31] Once a litigation guardian represented the plaintiff in June 2014, the question is whether there is any further reasonable excuse for not complying with the ten day notice requirement under the Municipal Act.

[32] The only evidence before the court with respect to the appointment of a litigation guardian was the following:

a. statement of claim in name of Julia Neville as litigation guardian dated June 11, 2014;

b. affidavit of Ingrid Nancy Dion consenting to be litigation guardian for Bayden dated May 29, 2015; and

c. Order of Justice Poupore substituting Julia Neville for Ingrid Dion as litigation guardian dated October 30, 2015.

Ingrid Nancy Dion’s affidavit says that she gave written authority to counsel to “act in this action” on behalf of the plaintiff.

[33] Since there is no affidavit appointing a litigation guardian other than the one signed on May 29, 2015, the court has no knowledge of the parameters of Julia Neville’s appointment as litigation guardian when she commenced the action in 2014. For instance, it is not known whether her appointment was restricted to the purpose of bringing an action against the originally named defendants. There is nothing before the court that allows it to conclude that Julia Neville was appointed to do anything other than commence that very specific action against those specific defendants. And Serban Estates gives us guidance on whether to impose a discoverability obligation on Ms. Neville, which I decline to do. Ms. Neville was not obliged to consider a claim against the City and her failure to do so cannot foreclose the rights of the minor.

[34] On the other hand, we have the affidavit of appointment of Ingrid Nancy Dion which references the broad authority she gave to counsel.

[35] Within two days of her appointment, Ingrid Nancy Dion gave notice to the City, as litigation guardian for the infant plaintiff.

[36] The purpose of s. 6 of the Limitations Act must be interpreted to protect the rights of minors. This policy goal to protect those rights must inform the notice period requirement. As between the two goals of the statutes, one to give municipalities the opportunity to preserve necessary records and on the other hand the protection of a minor’s rights, the rights of the minor must prevail.

[37] I am satisfied that the plaintiff met the Municipal Act notice requirement when his litigation guardian, Ingrid Nancy Dion, gave notice to the City within ten days of her appointment. If I am wrong in finding that the original litigation guardian, Julia Neville, did not have an obligation to give notice, I am of the view that there was a reasonable excuse for her not to give notice. That reasonable excuse includes, among other things, the absolute need to give primacy to the protection of minors in respect of their rights to bring actions for damages arising from injuries occurring when they cannot assert their own rights. This policy goal of protection of minors’ rights is consistently and vigorously enforced and includes the requirement that the court approve all settlements with respect to minors. There is no good reason to allow a litigation guardian to foreclose a minor’s rights based on the discoverability principle. As Strathy J. put it, it would bring chaos to the situation.

Conclusion

[38] I find that the plaintiff did everything he could to bring this action within the limitation period. The motion was brought well before the end of the limitation period and the motion was heard before the end of the limitation period. This matter was under reserve for some time. This is an appropriate case where the order permitting the addition of the additional defendants should be made nunc pro tunc. In this respect, I rely on the decision and the discussion of Polowin J. in Dupuis v. W.O. Stinson & Son Ltd., 2014 ONSC 4317, [2014] O.R. (3d) 535. I am satisfied that an order nunc pro tunc properly addresses the competing principle and policy concerns of the Limitations Act.

[39] The plaintiff’s motion to add the City as a defendant is granted.

[40] As I understand from the submissions, the addition of Wallbridge, Wallbridge, James Wallbridge, and Julie A. Gagnon is done on consent.

[41] The plaintiff is also able to increase the prayer for relief and make other amendments consistent with the addition of the parties.

[42] If the parties cannot agree on costs, they may make brief written submissions to me as follows: counsel for the moving party within 21 days of today; counsel for city within 14 days after that.

The Honourable Madam Justice Patricia C. Hennessy

Released: June 16, 2016

[^1]: Through some mix up, the date the statement of claim was issued was mistakenly referred to in the motion materials as July 2014 which misled me until I noticed the inconsistency between the June and July dates. Counsel did point this out during argument. However, the mistake was not corrected throughout the materials on which I relied. This has led to some concern as will become apparent in the reasons.