Court File and Parties
COURT FILE NO.: 11-CV-429741 MOTION HEARD: 20160112 REASONS RELEASED: 20160712 SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
William Samson Huang, Davanh Huang, Richard Huang and Chynna Huang Plaintiffs
and
Tome Ricardo Filipe Cardoso and L & L Leasing Services Ltd. Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: William G. Scott - for moving plaintiffs F (416) 640-2952 Philip Pollack - for proposed defendant F (416) 593-7760 Canada Post Corporation
RELEASED: July 12, 2016
Reasons for Decision
I. Nature of Motion
[1] This is a 2011 action arising out of a serious motor vehicle accident which resulted in the plaintiff driver being in a coma for a period of time.
[2] This motion addresses whether or not the plaintiff ought to be permitted to add Canada Post Corporation as a defendant and consequently to amend the Statement of Claim more than two years after the accident took place.
II. The Facts
[3] The accident occurred on December 15, 2010, in the City of Toronto. A motor vehicle operated by the plaintiff William Huang (“Huang”) was traveling in an easterly direction on Connell Court, entered the intersection with Horner Avenue, and was struck on the driver’s side by the defendant’s vehicle, driven which was travelling in a southerly direction on Horner Avenue.
[4] An earlier factum filed on behalf of the plaintiff asserted that the Plaintiff was catastrophically injured as a result of this accident and suffered a severe head and bodily injuries. It is my impression that the plaintiff driver, as a consequence, has little or no memory of the events surrounding the accident. The evidence before me supports the conclusion that as a result, the Plaintiffs' lawyer needed to rely upon documentary and witness evidence in determining the details of how the accident transpired.
[5] Significantly, the original police Motor Vehicle Accident Report and the sketch contained in that report, did not indicate or depict the presence of a Canada Post truck near the scene of the accident.
[6] This case addresses the operation of the discoverability provisions in a matter where the plaintiff has no practical memory of the central event.
[7] The affidavit of plaintiffs’ counsel asserts that at the time the action was commenced, there was no reason for the Plaintiffs' lawyer, to believe any other party could have been responsible for the accident on the basis of that MVA report.
[8] The Statement of Claim in this action was issued June 29, 2011. The existing defendants then delivered a Statement of Defence and Jury Notice in September, 2011.
[9] On February 24, 2012, well before the December two year anniversary of the accident, the then lawyer for the plaintiffs wrote to the Toronto Police Service, requesting reconstruction measurements and photographs relating to the accident. Apparently this letter was sent as a result of her receiving the first page of the collision reconstruction report “which indicated that a postal delivery truck was stopped at the southwest corner on Cornell Court facing east with the driver servicing a postal box located on the corner, and reference to a statement given by a Mr. Morato to one of the investigating police officers.”
[10] Counsel asserts that it was not until after having received the accident reconstruction report (in February 2012), that the Plaintiffs' lawyer became aware of the fact that there had been a Canada Post truck parked on the Southwest corner of the intersection at the time the accident took place.
[11] The Police Collision Reconstruction Report with respect to the December 2010 accident, when it was eventually obtained, was found to read in part:
“Collision Summary
A 2000 Stirling dump truck was southbound on Horner Avenue approaching Connell Court.
A 2006 Chevrolet Express van was stopped facing east on Connell Court at Horner Avenue for a stop sign.
A postal delivery truck was stopped at the south-west corner on Connell Court, facing east with the driver servicing a postal box located on the corner.
The Chevrolet van moved forward and then made a left turn when it was struck by the southbound Stirling truck.”
[12] I am not satisfied that simply discovering the existence of the truck was sufficient to establish that the plaintiff’s accident was “caused or contributed to” by an act or omission of the proposed defendant’s vehicle. Given that finding, at what point did the limitation period begin to run?
III. Due Diligence?
[13] The plaintiffs’ lawyer attempted to contact the witness, Mr. Morato, by letter of February 27, 2012. No response was received to this letter and on May 23, 2012, the plaintiff's lawyer retained the services of an investigator to contact Mr. Morato and to obtain a statement.
[14] Shortly thereafter the plaintiffs’ lawyer received the investigator’s report which contained the witness’s statement which read in part:
As Mr. Morato entered Connell Court he allowed a white van to pass and then proceeded behind it. The van was described as in good condition with no visible marking, approximately 4 to 5 years old and containing a sole male occupant. The vehicle was travelling at approximately 15 kilometers per hour. As they approached the intersection of Connell Court and Horner Avenue he observed a Canada Post truck parked at the corner, opposing traffic and at such an angle as to not only block the lane they were in, but the view of traffic approaching northbound on Horner Avenue. He has noticed this postal truck at the same location on at least 2 or 3 other occasions and felt that the positioning of this truck was likely to cause an accident. Mr. Morato described the postal worker as a tall male between 40 and 50 years old, and of Indian or Pakistani descent. He was out of his vehicle at the post box that is situated at this corner.
Mr. Morato observed the white van come to a complete stop at the intersection. There are no traffic controls at what may be described as a "T intersection". The drive then "inched out" onto Horner Avenue and then stopped for a second or two as his view was obstructed by the placement of the postal truck. The van driver then proceeded to make a left hand turn, which placed him in the path of the oncoming dump truck. In Mr. Morato's opinion, the dump truck did not have enough reaction time to brake before hitting the van and that he did not hear any indication of the dump truck quickly applying the brakes causing a noise associated with skidding.”
[15] By letter dated July 16, 2012, the plaintiffs’ lawyer put Canada Post on notice of the potential claim against the Corporation and sought information regarding the driver employed by them. There appears to have been no response received to that letter.
[16] On January 9, 2013, the plaintiff's lawyer received a further report from CKR Global Investigations with a further statement from Mr. Morato.
[17] A Notice of Motion to add it as a defendant was served on the proposed defendant, Canada Post, on March 26, 2014. This was within two years of receipt of the investigator’s report.
[18] That motion to add did not proceed when originally scheduled and prior to the return date, the action was administratively dismissed by the Registrar on September 3, 2014.
[19] The Registrar’s dismissal order was set aside October 31, 2014. Following a number of adjournments this motion to add Canada Post was finally heard in January 2016.
IV. Limitations Act, 2002
[20] Under the applicable statute, the basic limitation period is established as two years from an event by Sections 4 and 5 of the Limitations Act, 2002, which read in part:
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (1) 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). (my emphasis)
[21] With my emphasis added, Section 5 further provides that these provisions are subject to a defined “Presumption”:
(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.
[22] In my view it is clear that the onus of asserting a claim is still available after the basic two year period is on the party seeking to recover that claim outside the standard two year period. Nevertheless the test in section 5(1) (a) is conjunctive.
[23] All four elements are needed for the clock to start upon its course to the second anniversary, unless a reasonable person in the circumstances of the plaintiff had sufficient knowledge of the four factors at an earlier point in time.
[24] Subsection 5 (1) (b) speaks of a reasonable person with the abilities and the and in the circumstances of Mr. Huang. He had no ability to know about the possible involvement of the Canada Post truck until his counsel learned the full facts relating to the location of the Canada Post vehicle, many months after the accident.
IV. Legal Issues
[25] I am satisfied that the action was commenced within the appropriate window of opportunity in this case. If I am wrong in that conclusion, it is nevertheless my understanding that on a motion such as this the Court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim, if the court determines that there is such an issue, the defendant should be added with leave to plead a limitations defence. If there is no such issue, as for example, where the evidence before the Motion Court clearly indicates that the name of the tort feasor and the essential facts that make up the cause of action against such tort feasor were actually known to the plaintiff or her solicitor more than 2 years before the motion to amend, the motion should be refused.
[26] If the issue is due diligence, rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided, of course, that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence.
Pepper v. Zellers Inc., 38 OR (3d) 161 (C.A.) Wong v. Adler (2004) 70 O.R. 3(d) 460 aff'd, [2005] OJ 1400 (Div Ct)
[27] An order adding a party as a defendant may be made nunc pro tunc to the date the Notice of Motion was served on that party. In this case that date was in March 2014.
Philippine v. Portugal, 2010 ONSC 956 Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548
[28] The plaintiff submits that when the administrative dismissal of the action was set aside, all proceedings in the action were restored as they were at the time of the dismissal order. I feel that this is a correct position in the circumstances of this case.
[29] This is particularly the case because of the failure of Canada Post to provide any response to the original letter from plaintiff’s counsel requesting information with respect to the driver,
[30] A federal Crown Agency, in my view owes a duty to Canadian litigants to not impede the resolution of claims in such circumstances by not co-operating to move the case forward.
[31] To now rely on delay in obtaining supporting evidence to whether the injury, loss or damage was caused by or contributed to by an act or omission of their driver seems to run counter to the recent guidance of the Court of Appeal in Carioca's Import & Export Inc. v. Canadian Pacific Railway Ltd, 2015 ONCA 592 regarding the appropriate role of the defence in modern personal injury litigation:
[32] Justice van Rensburg, writing on behalf of the panel of the Court of Appeal consisting of herself and Justices Sharpe and Lauwers observed:
52 Applying too exacting a standard for restoring an action which has been struck from the trial list may well hinder the objective of an efficient justice system, as parties and counsel would argue over keeping matters on the trial list for fear that, once struck, they might never be restored. Fighting highly contested motions over cases being struck and restored to the trial list is not an effective use of scarce judicial and legal resources. Ontario courts are actively discouraging a "motions culture" among counsel, and the Supreme Court of Canada has called for a "shift in culture", citing the need for a process that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.
53 While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: [1196158 Ontario Inc., 2012 ONCA 544, 112 O.R. (3d) 67] at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. [my emphasis]
V. Arguments of the Responding Party
[33] The Respondent, Canada Post Corporation, opposes the relief sought by the Plaintiffs on the grounds that this Motion was commenced, and this proposed Defendant is sought to be added, after the expiry of the basic two-year limitation period prescribed by the Limitations Act, 2002. As I have indicated the basic two year period in my view is not the critical time period in this case.
[34] The proposed defendant submits that while Rule 26.01 of the Rules of Civil Procedure permits a court to grant leave to amend a pleading on terms that are just, unless prejudice would result that could not be compensated for by costs or an adjournment, Rule 5.04(2) would more appropriately apply.
[35] Pursuant to that rule an order add a party to a proceeding, and in this case, to add a party after the apparent expiration of a limitation period, is discretionary.
[36] While the Court of Appeal has held in Joseph v Paramount Canada's Wonderland, 2008 ONCA 469, (paragraph 27) that the Court has no discretion to extend a limitation period by applying the former common law doctrine of “special circumstances”, I clearly still have a discretion to consider when the limitation period arguably commenced.
[37] This Court is required to look at the limitation period and the principles of discoverability in order to determine whether or not to use its discretion to add a party to an action.
[38] Canada Post submits that pursuant to Section 5(2) outlined above, the Plaintiff is presumed to have known the matters referred to in Section 5(l) (a), on the day the act or omission took place on which the claim is based unless contrary is proven.
[39] However, the exception has been discussed in the number of cases leads opposing counsel to submit that
“…unless the Plaintiff is able to demonstrate that it was highly unlikely, if not impossible, with due diligence, to have obtained the necessary information that would have enabled him or her to add the Defendant within the limitation period. As was held by the court in the case of Parent v. Janandee Management Inc., (hereinafter "Parent") the Limitations Act imposes a reverse onus and evidentiary burden on the Plaintiff to substantiate this claim.
[40] The proposed defendant’s factum submits:
“12. In circumstances where discoverability is relied upon, Master Dash has held, in his decision of Wakelin v. Gourley, (hereinafter "Wakelin") that the court should examine the evidentiary record in order to determine if there is an issue of fact or credibility before an Order adding a party is made. In Pepper v. Zellers Inc. (Zellers Pharmacy), (hereinafter "Pepper") Justice Lang agreed with the reasoning in Wakelin and found that a judge is entitled to assess the record to determine, as a question of fact, whether there is "any reasonable explanation" on the evidence before the court demonstrating why the identity of the proposed Defendants could not have been determined through the exercise of due diligence. …”
[41] However, I am satisfied that the plaintiff’s circumstances in this case constitute a reasonable explanation for the delay in identifying the potential responsibility of Canada Post.
[42] The responding party’s factum refers to my decision in Parent v. Janandee Management Inc.. There I described the burden placed on the Plaintiff to provide appropriate affidavit evidence that detail material facts to support the Plaintiffs diligence:
“In my view the onus was on the plaintiff to lead cogent evidence of either stonewalling by the defendants (and perhaps the proposed defendants) or an affidavit from the professional adjuster or other individual retained on behalf of the plaintiff to outline why in the relatively small A-frame sign on a Toronto sidewalk, it would be inappropriate and abnormal to investigate the identity of the supplier of the sign within six years of the accident.”
[43] Here the plaintiff could have moved more quickly but until it was evident that the location of the Post Office vehicle might have contributed to the actual accident there was no reason to consider the possibility of such involvement.
[44] As well the responding party observed:
Similarly, Justice O’Connell dismissed the Plaintiffs motion in the case of Mbobi v. Zurich Canada, [2010] O.J. No. 4705 (S.C.J.). Justice O'Connell found that there was no evidence before the Court to suggest that Plaintiffs’ counsel communicated with the existing Defendants to ascertain the identity of the proposed Defendants. Furthermore, Justice O'Connell stated as follows: The evidentiary record on this motion does not lead me with any concern that the issue of discoverability raises an issue of credibility that should proceed to trial. Put simply the only real issue is whether a reasonable explanation as to due diligence was provided such as to raise a triable issue. No reasonable explanation has been advanced. The plaintiff could very well have obtained the information it now says it has to add the third parties within the limitation period. Diligence rests at the feet of the plaintiff. It is not a sword at this stage for the plaintiff. Were it otherwise the two year limitation period would be a mere fiction.
In Pooran v. 2029301 Ontario Ltd. et al, the Plaintiff was injured in a slip and fall that occurred in a parking lot. The Plaintiff sought leave to amend the Statement of Claim to add as a Defendant the parking lot maintenance contractor. The motion was dismissed by Master Haberman as the court was not told about any investigations whatsoever that were done to identify the parking lot maintenance contractor. Master Haberman found it difficult to consider a genuine discoverability issue when no evidence was presented to demonstrate that the Plaintiff neither knew nor could have known the identity of the proposed parties at an earlier date.
[45] I have however determined the evidence demonstrates that, at the relevant point in time, the plaintiff driver, did not know, and due his medical condition could not have known, the existence and possible involvement of the proposed defendant’s vehicle.
VI. Disposition
[46] In the result, I am granting the plaintiffs’ motion to add the Canada Post Corporation as a defendant. As well, I am allowing them to make such amendments as are appropriate to reflect the addition of this party.
VII. Costs
[47] I am satisfied in this case that the plaintiffs ought to have their costs of the motion on a partial indemnity basis. At the conclusion of the argument counsel agreed that they wished to make written submissions on costs. If they are unable to agree on an amount, I will convene a telephone case conference to establish an appropriate process to resolve that issue.
R. 138/DS
Master D.E. Short