CITATION: Hutton v. EllisDon Corp., 2016 ONSC 6501
COURT FILE NO.: 307/16
DATE: 20161020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Hutton
Plaintiff
– and –
EllisDon Corporation
Defendant
Rasha El-Tawil, for the plaintiff
Melanie Hockin, for the defendant
HEARD: October 3, 2016
rady j.
Introduction
[1] The defendant moves for summary judgment dismissing the plaintiff’s claim on the basis that it is out of time. It is said that the plaintiff knew or ought to have known of the circumstances of her claim and the identity of the defendant within the two-year limitation period. It argues in the alternative that this claim is an abuse of process. The plaintiff responds that there is a genuine issue respecting discoverability which requires a trial. The plaintiff has brought a cross-motion for an order consolidating this action with a related matter.
The Claim
[2] The claim arises from the plaintiff’s fall from her bicycle on July 18, 2011 on Woodroffe Avenue in the City of Ottawa near Algonquin College.
[3] The plaintiff alleges that she suffered a number of personal injuries, including a head injury resulting in a period of amnesia and post concussive symptoms.
[4] On June 21, 2013, she began an action against the City of Ottawa alleging that it was negligent in its maintenance of the roadway in question. She also named the Ministry of Transportation as a defendant.
[5] On February 19, 2014, the City of Ottawa defended the action. It pleaded that at the material time, the roadway was undergoing reconstruction pursuant to a contract between Algonquin College and EllisDon. On February 21, 2014, the City issued a third-party claim against EllisDon for contribution and indemnity.
[6] In January 2016, the plaintiff served a motion seeking to add EllisDon as a party defendant in that proceeding but did not pursue the motion. Instead, on February 1, 2016, this claim was commenced.
The Evidence
[7] The moving party has filed:
Affidavit of Iain Peck, solicitor for the defendant, sworn July 13, 2016;
Supplementary Affidavit of Mr. Peck of September 26, 2016;
Affidavit of Christopher Collins, solicitor for the plaintiff, sworn August 15, 2016; and
Supplementary Affidavit of Mr. Collins, sworn September 12, 2016.
[8] The affidavits append the pleadings, various correspondence and excerpts from the examinations for discovery of the parties. The entire transcript of the plaintiff’s discovery was also filed with me on the day of argument.
The Parties’ Positions
[9] The moving party defendant builds its argument as follows:
the plaintiff knew where she fell as of the date of the accident;
she knew that she fell in an area of construction;
she met with counsel within the two-year limitation period and therefore counsel knew 1 and 2; and
the plaintiff and her counsel failed to exercise reasonable diligence to ascertain the precise location of the accident and EllisDon’s involvement in the construction there within the two-year limitation period.
[10] The plaintiff responds that the first time she knew of EllisDon’s possible involvement was on February 20, 2014 when the City of Ottawa delivered its defence. It was only at the City’s examination for discovery on February 4, 2015 that she discovered EllisDon’s possible negligence. The claim was issued within two years of those dates and is therefore in time.
Chronology
[11] As is often the case where discoverability is in issue, the chronology outlining counsel’s investigation of the claim – the who, what, why, where and how – is important.
[12] Mr. Collins sets out in his affidavit the steps his office took to identify those responsible for the accident. They are summarized and paraphrased here:
• on June 17, 2013, a letter of notice was sent to the City of Ottawa and Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario. The letter noted that the “fall was caused as a result of the dangerous condition of the road surface which appears to have been the result of road maintenance being done in the area”;
• time to investigate was limited given the impending limitation period. As a result, on June 21, 2013, a Statement of Claim was issued against the City of Ottawa and the MTO;
• on June 24, 2013, the City’s claims investigator asked where the accident occurred, observing that “Woodroofe [sic] Avenue in Ottawa is many miles long”. Mr. Collins’ office responded confirming the address was 1385 Woodroffe Avenue;
• on June 28, 2013, the examiner requested the exact location of the accident and in particular in which block. She wrote:
The address 1385 Woodroofe [sic] Ave., covers a large area around Algonquin College in Ottawa. In an effort to gather all the information the City requires for its investigation I require additional detail…
There was substantial work taking place during this time frame and location and specific details are most important. Once we have this we can identify what was going on and who was doing the work.
• on July 3, 2013, the firm replied that they understood the accident had occurred just past the college on Woodroffe Avenue. It said, “Ms. Hutton (a.k.a. Ms. Vivier) was travelling Northbound in the lane closest to the curb and she has confirmed that there was not a designated bike lane marked at the time. Ms. Hutton has further advised that the area was paved and finished with bike lanes within three weeks after the incident”. It also noted that there was no police report, but a 911 call for an ambulance was made and those records had been requested;
• on August 8, 2013, the investigator emailed once again advising that she needed a better description of the location of the accident since her operating department had advised her that the previous information was “vague”. She asked in which block the accident happened;
• on August 12, 2013, Mr. Collins’ clerk contacted the plaintiff in an effort to more precisely pinpoint the accident location;
• on August 14, 2013, the clerk advised the City that the accident occurred “just past College Avenue towards Navaho Road. She was heading north on Woodroffe”;
• on September 6, 2013, counsel received a letter from counsel for the MTO, advising that it had no jurisdiction over the accident location and requesting dismissal. The MTO advised that it believed “that the area would be within the jurisdiction of the City of Ottawa”;
• on September 9, 2013, counsel responded that they were awaiting confirmation from the City that it had jurisdiction over the accident location;
• on November 12, 2013, the firm emailed to City asking it to confirm it had jurisdiction over the accident location;
• on November 15, 2013, the firm received a letter from counsel for the City (Mr. McCall) advising that the City’s jurisdiction over the subject location was still unclear. Mr. McCall wrote:
We are still not clear where the incident occurred. We have been advised previously that “The location was just past the College on Woodroffe”. The information is important because during the summer of 2011 there was roadway widening construction occurring on Woodroffe Avenue. On northbound Woodroffe, from College to Navaho, there was a road widening and bike lane installation project. For southbound Woodroffe, the project ran from Navaho to College and included a road widening to facilitate a bus only lane and a bike lane.
I am attaching a series of photographs taken recently following the completion of the project and an overhead photograph which predates the construction. Please have your client mark the location of the incident on one or more of the photographs and the overhead photograph and return the marked photographs to me so that I can determine if it occurred within the construction zone. I will then be able to let you know about jurisdiction.
• on December 18, 2013, the firm sent Mr. McCall a letter enclosing the pictures with the location of the accident marked as requested;
• on December 23, 2013, Mr McCall confirmed the City’s jurisdiction over the relevant location. Mr. McCall also wrote:
I am making inquiries from my client to determine whether third party proceedings should be instituted and I will then deliver a Statement of Defence.
• on February 20, 2014, the firm received the City’s statement of defence and third party claim;
[13] The City was examined for discovery on February 4, 2015. The City’s representative testified as follows:
Q. 37 Q. … the City was responsible for that work [on Woodroffe Avenue]?
A. No. This is exactly why we entered into a Design and Construction Agreement. We wanted to – see, it’s complex in that we had three large pieces of work going on in a very small block of area. …the City did not ever want to be perceived as the Contractor. So, that’s why we gave our work to the College and the College in turn had it Tendered to – with EllisDon. EllisDon was the ultimate Contractor… The owner never wants to be the contractor.
38 Q. Because then all the liability falls to you?
A. That’s right. It’s all about liabilities and risk. So, that’s why we chose to make these arrangements this way.
39 Q. …the City’s role in this was sort of just overseeing from afar?
A. Yes. Yes. Yes.
- Q. Then the project management actual hands on work was --- …downloaded to Algonquin, EllisDon, MHPM and several other contractors.
A. That’s right. Yes. We were more of an overseer, but we also had the responsibility to ensure that this work got done and this was the means by which to get it done.
[14] The plaintiff was examined for discovery on August 7, 2015. She testified as follows:
350 Q. Okay. And in crossing the, crossing Woodroffe to get to the side that you started to ride forward on what was the, what was the condition of Woodroffe in the crossing that, or the area that you had to cross in?
A. In the intersection the pavement was smooth.
351 Q. Okay. Could you see construction was going on at this point?
A. Not on the road.
352 Q. Well, anywhere?
A. There was a construction trailer beside the College. However, I just knew that that was there because they were doing that walkway at the time. But as specifically on the road, there were no signs.
353 Q. Okay. And was there any, was the, was there any indication on the road surface itself that construction had been going on?
A. At what point do you mean specifically?
354 Q. Well, as you’re crossing the intersection and then beginning to ride on Woodroffe?
A. It was smooth until the area that was grated that the fall happened on.
355 Q. Okay. So would you describe it as being the road surface that was, that was there without any construction activity having taken place?
A. I’m sorry, I don’t know what you… I blacked out there, what did you say?
356 Q. Well, you said the road surface was smooth until you got to a grated area. Does that, I’m just trying to understand, does that mean that it did not appear that any construction work had taken place on that part of the road surface that you describe as smooth?
A. I don’t think… I’m sorry, I don’t… I guess no.
357 Q. No, there had been no work that you could see?
A. On the area that was smooth…
368 Q. Okay. And how far did you, how far would it be that you were riding on Woodroffe itself beside the curb, what distance before the fall occurred?
A. It wasn’t very far, maybe three metres before my, before I saw that the grading…
463 Q. Did you go back to that area over the next, or during the next couple of weeks?
A. About a couple weeks later when I went back…
464 Q. Yes?
A. …it was paved.
465 Q. It being the surface that you fell on?
A. Correct.
466 Q. Okay. But… Okay. And were there, at that point were there barrels or signs or other indicators of construction activity?
A. I don’t specifically remember. I don’t know. Again, I was very disoriented in the weeks after the crash as well so…
483 Q. Okay. I’m assuming from your previous experience though that you recognized, after you fell maybe but recognized that the area that you fell in was part of a road construction effort, correct?
A. Correct.
484 Q. And that at some point it would be, in the natural course of things it would be covered over and made flat again? Just makes sense, doesn’t it?
A. That does make sense. I wouldn’t think that would be something I would focus on…
538 Q. … I’m having a hard time understanding, is it your evidence that you had no idea that you were in a construction zone when this happened?
A. There wasn’t an opportunity to have that thought pass through my mind.
539 Q. Okay. But what’s the answer to my question? Is it that you did not know you were in a construction zone?
A. Again, I didn’t have time to decide whether I was or was not in a construction zone. Upon turning left I did not know that I was in a construction zone. Upon pulling myself off the road I did indeed then realize that something had happened.
540 Q. So as you’re turning left onto Woodroffe you didn’t realize you were turning into a construction zone, is that fair?
A. No, I did not.
541 Q. Okay. And you said earlier that, and correct me if this is wrong, I think you said the only thing you saw that had to do with construction was a construction trailer, is that right?
A. Yes, I saw that when I was sitting on the curb after the accident.
542 Q. Okay. And you didn’t see anything, any other indications of construction?
A. I don’t believe so. I wasn’t looking for such things.
543 Q. So then I assume you didn’t notice any construction workers?
A. I don’t think there were any workers, no.
544 Q. If you’d realized you were turning into a construction zone would you have altered your speed?
A. I don’t believe I was moving that fast. I would have decided to maybe stop because that one car was at my left, if I realized that it was there and I perhaps could have stopped.
545 Q. And you said earlier you don’t have any recollection of when the last time you went through there was…
A. That’s correct.
546 Q. …is that right? Do you happen to remember if the last time you went through there there was construction?
A. I don’t. I don’t recall.
Summary Judgment
[15] I do not propose to repeat here the text of Rule 20.04 or the Supreme Court of Canada’s decision respecting motions for summary judgment in Hryniak v. Mauldin, 2014 SCC 7.
[16] Since the release of that decision, a considerable body of case law discussing it and applying has developed. Suffice it to say that summary judgment must be granted when there is no genuine issue requiring a trial. It is appropriate when the process:
• permits a judge to make the necessary findings of fact;
• allows a judge to apply the law to those findings; and
• is a proportionate, cost effective and expeditious way to proceed.
[17] The court is equipped with expanded powers to adjudicate in the event a genuine issue arises.
Analysis and Disposition
[18] I have concluded that there is a genuine issue requiring a trial in this case. In my view, the defendant is asking that the plaintiff be held to an inappropriately high standard, given the nature of her injuries, her uncertainty about the actual location of the accident, the City’s own uncertainty respecting its jurisdiction and the lack of clarity respecting the road reconstruction and which contractor(s) was involved in the roadwork. Furthermore, read in context, the plaintiff herself testified that while she recognized there was roadwork going on, she did not turn her mind to whether she was in a construction zone when she fell.
[19] It must be borne in mind that the plaintiff alleges that she sustained a brain injury that affected her cognitive ability. I recognize that she has filed no medical evidence on this motion but regardless, it is a factor to consider given the plaintiff’s discovery evidence that she felt disoriented in the weeks after the accident and the crash was traumatic for her. She testified that she was referred to the Parkwood Hospital Brain Injury Program. Mr. Collins also deposes that his client’s memory impairments made identifying the exact location of the accident challenging. Mr. Collins was not cross-examined and his evidence is uncontroverted as a result.
[20] Second, the municipal address for Algonquin College is 1385 Woodroffe Avenue, which, as the representative of the City wrote to plaintiff’s counsel, covers a large geographic area spanning several blocks. It appears that there was no police record that might have pinpointed where, along the several blocks of Woodroffe in the vicinity of Algonquin College, the fall occurred. An ambulance was called, but the call report is not in the motion material and it was not referred to in argument. It was only when the plaintiff was asked by Mr. McCall to draw an X at the location on a map that the picture became clearer.
[21] In oral argument, EllisDon suggested that the plaintiff neglected to inform the City of the precise location of her fall in a timely way. It seems to me that any complaint in this regard would be that of the City rather than EllisDon. In any event, the plaintiff promptly complied with the City’s requests for information after they were made. Neither had any obligation to consider the interests of a third party not yet identified. The mere fact that the accident occurred in an area of roadwork is not sufficient in the circumstances of this case to lead the plaintiff to suspect a contractor’s involvement let alone its negligence. Furthermore, several contractors had been involved in the roadwork, as the City’s representative testified at her examination for discovery.
[22] The words of the court in Madrid v. Ivanhoe Cambridge Inc. et al, 2010 ONSC 2235 are instructive:
In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s. 5 of the Limitations Act, 2002. It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendants and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery.
[23] Third, it must surely be significant that the City did not deliver its statement of defence and third party claim until February 2014. This is persuasive evidence supporting the reasonable inference that the City and its counsel did not have sufficient information in order to plead. Arguably, this is the date on which the limitation period began to run. If so, this claim was brought in time.
[24] I have also considered whether exercising my expanded powers under Rule 20 serves any useful purpose. EllisDon remains a third party in the other action and it has defended the main action. It will participate in the trial of that action (absent unknowable events in future). As a result, no savings of either costs or judicial resources is achieved, two of the goals of summary judgment emphasized in Hryniak.
[25] On the abuse of process issue, I agree that it was unusual to commence a separate action rather than pursue the motion to add EllisDon as a defendant to the other action. I am not persuaded, however, that this constitutes an abuse of process in this case. An order dismissing an action for abuse of process is only granted in the clearest of cases and only when permitting the action to proceed would bring the administration of justice into disrepute. See Phillion v. Ontario (Attorney General) (2014), 2014 ONCA 567, 121 O.R. (3d) 289 (C.A.). This is not such a case. The plaintiff`s decision to proceed as she did likely reflects concern about what was viewed as an impending limitation period.
[26] Furthermore, the plaintiff’s cross-motion for an order consolidating the two proceedings seems reasonable and justified and should be granted. The criteria in Rule 6.01(1)(a) and (b) are satisfied. Consequently, any concern about two parallel actions proceedings is eliminated.
[27] The motion for summary judgment is dismissed. The cross-motion for an order consolidating this action with court file #1161/13 is granted.
[28] If the parties cannot agree, I will receive brief written submissions on costs first from the plaintiff by November 1, 2016; and the defendant by November 15, 2016.
“Justice H. A. Rady”
Justice H. A. Rady
Released: October 20, 2016
CITATION: Hutton v. EllisDon Corp., 2016 ONSC 6501
COURT FILE NO.: 307/16
DATE: 20161020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Hutton
Plaintiff
– and –
EllisDon Corporation
Defendant
REASONS FOR JUDGMENT
Justice H. A. Rady
Released: October 20, 2016