Patrick v. The Corporation of the Municipality of Southwest Middlesex, 2017 ONSC 17

Court File No.: 2446/15

Date: 2017-01-03

Superior Court of Justice - Ontario

Re: CATHERINE PATRICK (Plaintiff)

And: THE CORPORATION OF THE MUNICIPALITY OF SOUTHWEST MIDDLESEX, CARMINE D’ARIANO, and UNITED PARCEL SERVICE (Defendants)

Before: Justice I. F. Leach

Counsel: Anna Szczurko, for the plaintiff Jonathan de Vries, for the proposed additional defendant, The Corporation of the County of Middlesex

Heard: July 11, 2016

ENDORSEMENT

[1] Before me is a motion by the plaintiff in this action. She seeks leave to amend her statement of claim so as to add a further defendant, (The Corporation of the County of Middlesex, hereinafter referred to as “Middlesex County”), to this proceeding.

[2] In particular, for reasons outlined in more detail below, the plaintiff now believes Middlesex County may have been the municipal authority responsible for alleged poor maintenance of a road said to have caused the first of two separate motor vehicle accidents giving rise to this action. In support of the motion, plaintiff counsel relies primarily on the doctrine of misnomer and, in the alternative, the discoverability doctrine.

[3] Middlesex County opposes granting of the requested relief. In doing so, it submits that the plaintiff has not established a case of misnomer, and that the plaintiff similarly has failed to lead evidence sufficient to raise triable discoverability issues, as far as the applicable limitation period is concerned. It also relies on the plaintiff’s failure to provide timely written notice of her contemplated claim against Middlesex County in accordance with s.44(10) of the Municipal Act, 2001, S.O. 2001, c.25, (hereafter referred to as “the Municipal Act”).

[4] The three existing defendants, named in the original statement of claim, took no position in relation to the motion.

Background

[5] Evidence outlining the factual background to the motion was confined to the following affidavit material:

• an affidavit with attached exhibits sworn on March 8, 2016, by a law clerk employed by plaintiff counsel;
• a responding affidavit with attached exhibits sworn on May 11, 2016, by the County Engineer of Middlesex County;
• a supplementary affidavit with attached exhibits sworn on June 16, 2016, by the same law clerk employed by plaintiff counsel.

[6] That evidence outlined developments from different perspectives, and touched on different aspects of the matter. However, it also contained little in the way of contradiction.

[7] In the result, (and while I will have more to say about the evidentiary record later in these reasons), the largely undisputed background to the motion may be outlined as follows:

• At all material times, the plaintiff has resided in the Town of Delaware, in the County of Middlesex.
• On the morning of February 11, 2014, the plaintiff was travelling south on a road known alternatively as “Melbourne Road” and “County Road 9”, in the County of Middlesex.
• The entire length of the road in question lies within the geographic boundaries of the County of Middlesex. In particular, the road extends from its northern terminus at a street intersection located within the Town of Strathroy to its southern terminus at the Thames River, (which forms the municipal boundary between the County of Middlesex and the neighbouring County of Elgin to the south). Heading south beyond the Thames River, the route is continued by a road alternatively known as “Iona Road” and “County Road 14”, in the County of Elgin.
• The precise date on which Melbourne Road was constructed, or first came under the jurisdiction over Middlesex County, is unknown. However, it seems Middlesex County has had jurisdiction over all of Melbourne Road since 1999. There currently are signs posted on Melbourne Road indicating that it is a county road. The county’s engineer believes those signs would have been in place on February 11, 2014.
• At approximately 9:25am on February 11, 2014, while the plaintiff’s car was still travelling southbound on Melbourne Road or County Road 9, (although approaching its transition into Iona Road or County Road 14), the plaintiff was involved in a single vehicle accident, which resulted in the plaintiff sustaining serious personal injuries.
• The affidavit material filed by the plaintiff indicates that her car slid on black ice that had pooled over the white centreline of the road, causing the vehicle to cross the opposite lane of traffic and roll into a ditch 10 feet below.
• The accident was investigated by the Middlesex County O.P.P., which prepared a “Motor Vehicle Collision Report” signed by the investigating officer on February 16, 2014. In that regard:
  • The report indicated, in completed text confirmed by a labeled diagram, that the “Location” of the accident was “R1”, which in turn was said to be a “Trafficway” expressly identified as “Melbourne Road”. Further “Location” information included provision of the “Thames River” as a “Reference Point”, identification of the relevant “Municipality” as “S/W Middlesex”, and identification of the relevant “County, District, [or] Regional Municipality” as “Middlesex”.
  • The report’s diagram depicted the plaintiff vehicle travelling south on “R1”, (which had two lanes at that point), approaching a curve leading towards the southwest, but failing to negotiate the curve, crossing southeast over the opposite lane of traffic, and coming to rest southeast of the curve. The only road depicted in the report’s diagram was labelled “R1”, both before and after the point at which the plaintiff’s vehicle is shown to have left the road. The Thames River was not depicted in the diagram.
  • Handwritten text accompanying the diagram indicated that the plaintiff was in her vehicle and southbound on the road in question when she “began to spin out in accumulated slush/snow on roadway”, after which she “overcorrected in steering” before she then “crossed [the] opposite lane and slid into [a] ditch, rolling down the ditch wall”.
  • The report included indications that “EMO” and “Fire” emergency equipment attended at the scene of the accident, and provided services that included “extraction”.
  • The report also indicated that there was an “independent witness” to the accident; a gentleman identified by specified first and last names, but without any indicated contact information.
  • I note that the report also effectively contained further information, indicated indirectly by the insertion of numerals and/or dashes in a series of 68 numbered boxes running down the left and right sides of the report. However, as indicated on the face of the form, that additional information requires reference to a “Template” to interpret the meaning of the various numerical indications, and the relevant Template was not included in the material provided to me.
• On June 19, 2015, plaintiff counsel sent “notice letters”, by registered mail, to the Municipality of Southwest Middlesex and the Municipality of Dutton Dunwich. Each letter advised the recipient municipality that the plaintiff had retained counsel to represent her with respect to injuries she sustained in a motor vehicle accident that occurred on February 11, 2014, “at the curve where Melbourne Road transitions into Iona Road”, and that the plaintiff was contemplating a claim against the recipient municipality “for improper road maintenance and/or design”.
• The plaintiff was involved in a second motor vehicle accident on June 26, 2015.
• On August 6, 2015, a claims examiner employed by the insurer of the Corporation of the Municipality of Dutton Dunwich wrote to plaintiff counsel in relation to the first accident, advising, after a completed investigation, that “the area of the loss is not within the jurisdiction of the Municipality of Dutton Dunwich, but rather that of the Municipality of Southwest Middlesex”. The same letter indicated that any claim against the Municipality of Dutton Dunwich therefore would be met by a “vigorous defence”.
• On November 12, 2015, the plaintiff issued her original statement of claim, addressing both of her motor vehicle accidents. The pleading asserts that the plaintiff was driving, at the time of both accidents. In relation to the first accident:
  • The pleading identified only “The Corporation of the Municipality of Southwest Middlesex”, (hereinafter referred to as “Southwest Middlesex”), as a named defendant.
  • The plaintiff alleged that, on February 11, 2014, at 9:25am, she was “travelling southbound on Melbourne Road approaching its transition into Iona Road, in the Municipality of Southwest Middlesex”, when her vehicle “slid on black ice that had pooled over the white centreline of the road, causing the vehicle to cross the opposite lane and roll into the ditch, landing 10 feet below the road”.
  • Various allegations of negligent road maintenance and design, (including failure to remedy pooling of water, failure to carry out proper sanding and salting, and failure to maintain or implement any reasonable system of inspection and snow/ice removal), were set forth in thirteen sub-paragraphs.
  • The plaintiff was alleged to have sustained serious personal injury, (caused by the defendants to both accidents), including fractures of her C1 and C2 vertebrae, concussion with various consequences, (including dizziness, hearing loss, vision issues, loss of balance and memory loss), various soft tissue injuries, widespread pain, (in her neck, shoulders, back and leg), and fatigue.
• On November 25, 2015, defence counsel retained by Southwest Middlesex served a notice of intent to defend, and requested an indulgence in relation to service of a statement of defence while the matter was being reviewed and investigated.
• On December 17, 2015, Southwest Middlesex delivered its statement of defence and crossclaim.[^1] The pleading included statements by Southwest Middlesex that “at all material times, it, its employees and agents, acted reasonably and properly to maintain the road in question”, and that Southwest Middlesex “took all reasonable steps to maintain the road”.
• On December 21, 2015, plaintiff counsel supplied counsel for Southwest Middlesex with a CD and index containing the documents plaintiff counsel had received to date. Documents listed and produced under the heading “INVESTIGATION/LIABILITY” included a “Motor vehicle collision report dated February 11, 2014” (sic), a “Freedom of information (sic) dated February 11, 2014”, “Elgin County – Google Maps”, “Middlesex County Map”, and “Letter from Dutton Dunwich advising jurisdiction is Southwest Middlesex dated August 6, 2015”. Substantial documentation, (some 9-10 pages), pre-dating and post-dating the accident of February 11, 2014, was listed and disclosed under the heading “MEDICALS”. Additional disclosures were made concerning collateral benefits and accident benefits.
• On February 16, 2016, (two days after the second anniversary of the plaintiff’s first motor vehicle accident), an adjuster acting for Southwest Middlesex and its insurer sent a letter, apparently by regular post, to the attention of the “Roads Department” of Middlesex County. A date stamp indicates that it was “RECEIVED” on February 18, 2016. In that regard:
  • The letter advised that the plaintiff and her counsel had served Southwest Middlesex with a statement of claim, in relation to an accident wherein, “on February 11, 2014, at 9:25AM Catherine Patrick allegedly lost control of her vehicle while travelling southbound on County Road #9 (Melbourne Road) approaching the bridge section where the road transitions into Iona Road (County Road #14)”. Further reference was made to the plaintiff’s allegation “that there was black ice on the road surface from water that had pooled over the white center line of the road causing Catherine Patrick’s vehicle to lose control and roll into the ditch”, causing the plaintiff to sustain injuries. The letter attached a copy of the plaintiff’s original statement of claim.
  • The letter also indicated that “investigation has revealed that County Road #9 also identified as Melbourne Road is clearly a Count of Middlesex Road and is not a lower tiered road that would be the responsibility of the Municipality”. In that regard, the letter also attached a series of photographs of the road in question, including photographs of signs bearing a large number 9 in the centre, with the word “MIDDLESEX” set out above the number and the word “COUNTY” set out below. One particular photograph, depicting a curve, bears a captions saying: “Accident occurred on this road”; “Claimant allegedly travelling on Melbourne Road (Middlesex County Road #9) about to cross the Thames River Bridge”; and “Once crossing the bridge the claimant would then be on Iona Road (Elgin County Road #9)”. Referring to the photographs, the letter expressed the view they “clearly convey that this is in fact a County road”.
  • The letter concluded with an indication that the writer was not suggesting negligence or liability on the part of Middlesex County, but was placing Middlesex County “on notice with respect to this loss”.[^2]
• The engineer for Middlesex County has sworn that, based on his review of the county’s records, the aforesaid letter from the Southwest Middlesex adjuster, received on February 18, 2016, “was the first notice the County had of any claim being asserted with respect to the plaintiff’s February 11, 2014 motor vehicle accident”, [emphasis added], and that “at no time prior to February 18, 2016, were any freedom of information requests made of the County with respect to the plaintiff’s February 11, 2014 motor vehicle accident”. He also indicates that Middlesex County “does not normally conduct any investigations into motor vehicle accidents that occur within its jurisdiction unless notice of a potential claim against the County has been received”. [Emphasis added.] He therefore believes “that no investigations were undertaken by the County with respect to the plaintiff’s February 11, 2014 motor vehicle accident before written notice of a claim was received on February 18, 2016”.
• On March 3, 2016, (approximately three weeks after the second anniversary of the plaintiff’s first accident on February 11, 2014), counsel for Southwest Middlesex then faxed a letter to plaintiff counsel, indicating that his client had “finally completed its investigation”. The letter went on to indicate “that Southwest Middlesex did not have jurisdiction over Melbourne Road at or near the accident location”; that “jurisdiction lies with either Middlesex County or Elgin County”; that jurisdiction “apparently … changes at the bridge over the Thames River where the name of the road changes from Melbourne Road to Iona Road”; and that there was “apparently clear signage on both roads identifying them as County roads”. According to the evidence filed by the plaintiff, this was the first discovery of an issue concerning jurisdiction over Melbourne Road.
• On March 4, 2016, plaintiff counsel sent further notice letters by registered mail and fax to Middlesex County and Elgin County. The substantive content of each letter echoes that of the earlier notice letters sent to Southwest Middlesex and the Municipality of Dutton Dunwich. In particular, each of the further notice letters advised that the plaintiff had retained counsel to represent her with respect to injuries she sustained in a motor vehicle collision that occurred on February 11, 2014, “at the curve where Melbourne Road transitions into Iona Road”, and that the plaintiff would be issuing a claim against the recipient county “for improper road maintenance and/or design”.
• The engineer for Middlesex County has sworn that that the county “did not receive written notice of a claim directly from the plaintiff until March 4, 2016”, at which time it received the notice letter sent by plaintiff counsel earlier that day.
• Later that same day, (March 4, 2016), a representative from Elgin County sent a responding email to plaintiff counsel, acknowledging receipt of the faxed notice letter. In the same email, the representative indicated that “a determination as to the exact location” of the accident was required, as the “Iona/Melbourne Road [was] a boundary location between Middlesex and Elgin County”. The representative asked in particular if the accident occurred south or north of the bridge over the Thames River. Finally, the representative expressed a belief that plaintiff counsel had sent notice to Elgin County incorrectly, as Elgin County had “no record of this collision and no police report on file”.
• On March 7, 2016, plaintiff counsel sent a further email to the same Elgin County representative, attaching a copy of the motor vehicle collision report, indicating that the plaintiff “was significantly injured and unfortunately does not recall the exact location of where this took place”, and noting that Southwest Middlesex had advised that jurisdiction over the road “lies with either Middlesex County or Elgin County”.
• Later that same day, (March 7, 2016), the same representative of Elgin County wrote to plaintiff counsel via regular mail and email, again acknowledging receipt of the notice letter sent to the county three days earlier. The letter went on to indicate that, in reviewing the “subsequent email correspondence” from plaintiff counsel and the “police report”, it appeared that the underlying motor vehicle accident “occurred on a road that is not under the jurisdiction of the Count of Elgin”, and that the road in question “falls under the jurisdiction of the County of Middlesex”.
• On or about March 8, 2016, (five days after learning that Southwest Middlesex now was denying jurisdiction over the road in question), plaintiff counsel served the notice of motion herein, seeking to amend the plaintiff’s statement of claim. The proposed amendments seek to add Middlesex County to the style of cause as another named defendant, and replicate, as against Middlesex County, the same allegations of negligent road maintenance made against Southwest Middlesex. The proposed amendments would add to the text of the original pleading without any deletions, including the extant allegations against Southwest Middlesex.
• On March 10, 2016, an adjuster appointed by the insurers of Middlesex County wrote to plaintiff counsel by email, acknowledging receipt of the notice letter sent to Middlesex County on March 4, 2016. A lengthy list of information and documentation was requested. The request included advice “as to the exact location of the loss”, and asked that the plaintiff or plaintiff counsel “mark the location in which the accident took place”, so that the adjuster could “determine who is responsible to maintain that area and subsequently, [the insurers’] position on liability”.
• On May 3, 2016, plaintiff counsel wrote to defence counsel for Middlesex County, requesting production of “any and all records pertaining to the subject collision”, as well as a copy of the police report provided to Middlesex County, “including the date that the report was provided to your client”. Plaintiff counsel also asked if a freedom of information request was required to obtain that information. There is no evidence of any response being made to plaintiff counsel’s request prior to hearing of the motion.

Relevant legislation

[8] The plaintiff’s proposed claim against Middlesex County for negligent maintenance and/or design of the roadway in question, (like her claim against Southwest Middlesex), is based on legislative provisions found in ss. 44(1) and 44(2) of the Municipal Act, which read as follows:

44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

[9] The plaintiff’s statement of claim and proposed amended statement of claim plead and rely upon the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, as an alternative basis of liability. However, as conceded by plaintiff counsel during the course of argument, the application of that legislation to municipal defendants for claims of this nature is specifically negated by the Act itself. In particular, s.10(2) of the Occupiers’ Liability Act, supra, reads as follows:

10. … (2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.

[10] It was common ground that claims against municipalities pursuant to the Municipal Act are governed by the presumptive two year limitation period set forth in s.4 of the Limitations Act, 2002, S.O. 2002, c.24, (hereafter referred to as “the Limitations Act 2002”), which in turn is subject to the discoverability provisions set forth in s.5 of that legislation. Those provisions read as follows:

Basic limitation period

4. 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

5. (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).

[11] However, claims against municipalities are also subject to a statutory notice requirement, which contains its own internal “saving” mechanism to alleviate possible hardship in certain cases. Those notice provisions, repeatedly described by our Court of Appeal as “a limitation period within a limitation period”[^3], (as failure to satisfy the notice requirement may bar the claim in a manner equally conclusive as expiry of a limitation period), are found in ss. 44(10) to 44(12) of the Municipal Act, which read as follows:

44. (10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or

(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.

(11) Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.

(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is a reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

[12] Rules of Civil Procedure relied upon by the plaintiff, in relation to pleading amendments, include both rule 26.01 and rule 5.04(2), which respectively read as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[13] The two rules obviously are similar.

[14] However, as the rules themselves suggest, in cases of proposed pleading amendments involving misnomer, (to correct the name of a party incorrectly named), or the addition of a party, it is the permissive Rule 5.04(2) rather than the mandatory Rule 26 that governs, and the court has a residual discretion to deny such proposed amendments.[^4]

[15] Moreover, where pleading amendments are proposed in relation to a party in respect of whom a limitation period may have expired, regard must be had to s.21 of the Limitations Act 2002, which reads as follow:

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[16] With the above legislation in mind, I turn first to the plaintiff’s reliance on the doctrine of misnomer.

Misnomer

[17] In that regard, I start by emphasizing my recognition that courts may permit amendments correcting true misdescriptions or misnomers in an existing claim despite the intervening expiry of a limitation period.

[18] That proposition is reflected in s.21(2) of the Limitations Act 2002, but also finds ample support in the authorities.[^5]

[19] It is a proposition which makes logical sense.

[20] In that regard, it must be remembered that the correction of a true misnomer does not involve the “substitution” of one party for another, but a situation where a party seeks “to name the defendant correctly”.[^6]

[21] In a case of true misdescription or misnomer of a defendant in a claim commenced prior to the relevant limitation period having expired, the plaintiff’s claim against the intended defendant therefore is not out of time, even though the request to correct the description or name is brought before the court after passage of the relevant limitation period. To the contrary, the plaintiff actually has commenced a claim against the intended defendant, within the applicable limitation period, but has made a formal error in the description or naming of that defendant which requires correction - - albeit possibly after the limitation period has expired.[^7]

[22] Alternatively, it has been said that the discretion to correct a “misnomer” does not require consideration of the applicable limitation period because the test for misnomer is such that the party who has been misnamed will still have been put on notice of the claim, and therefore will not be disadvantaged by being deprived of the benefit of the limitation period.[^8]

[23] In contrast to situations where the plaintiff effectively is seeking leave to add a new defendant to the litigation after passage of the ostensible limitation period, (considered below), application of the doctrine of misnomer accordingly does not require evidence of due diligence to ascertain the identity of parties. The doctrine can apply even if the plaintiff has made an error in circumstances where he or she knows or ought to have known of the proper description or name of the intended defendant.[^9]

[24] This nevertheless makes it all the more important to ensure satisfaction of the strict requirements necessary to establish a case of legitimate misdescription or misnomer, permitting “correcting” amendments despite passage of a limitation period.

[25] In that regard, the classic English view of “misnomer” was quite narrow, permitting only the correction of a minor spelling error in the defendant’s name, and only where the document in question was served personally upon the intended but misnamed defendant.

[26] However, the scope of the misnomer doctrine has been revisited and expanded by our Court of Appeal through a series of decisions.[^10]

[27] In particular, it now has been established that amendments to correct a misdescription or misnomer may be made despite the passage of the limitation period if the evidence establishes a coincidence between:

i. the plaintiff’s intention to name the correct party, (which must have been intended from the beginning); and

ii. the intended party’s knowledge that it was the intended defendant; i.e., that it had notice of the claim, (with what the intended defendant would have known being primarily a finding of fact to be made on the basis of the evidence presented by the parties).[^11]

[28] Even then, however, the court retains its residual discretion under Rule 5.04(2) to refuse the desired corrective amendments.

[29] In that regard, our Court of Appeal has emphasized that, as the scope of what the courts consider a “misnomer” broadens, it is appropriate to take a correspondingly wider view of the court’s discretion to refuse to correct the misnomer.

[30] In particular, now that the concept of “misnomer” has been broadened to apply to a wider range of situations beyond mere spelling mistakes, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case. For example, if the defendant was misled or will be unduly prejudiced by the amendment, that will be given great weight and generally will be determinative. Similarly, the court may decline to permit the amendment if the plaintiff has delayed bringing his or her motion to amend for an inordinate period of time.

[31] More generally, where the error or mistake in naming the defendant properly involves more than a mere irregularity, or in any particular case with exceptional circumstances, the court may exercise its residual discretion under Rule 5.04 and refuse to permit its correction.[^12]

[32] With the above principles regarding “misnomer” in mind, I turn to their application in this particular case.

[33] In that regard, I begin by noting my agreement with submissions by counsel for Middlesex County that it seems counterintuitive to regard the proposed amendments in this case as a legitimate effort to correct an inaccurate description or naming of a defendant in the existing litigation.

[34] In particular, this is not a case where the plaintiff seeks to change the pleaded name or description of the municipality with alleged jurisdiction over the road in question from Southwest Middlesex to Middlesex County. To the contrary, as noted above, the plaintiff’s proposed amendments would simply amend the style of cause to also name Middlesex County as a defendant, subject to new separate but similar allegations of negligent road maintenance and/or design against Middlesex County.

[35] The proposed amendments therefore unquestionably would result in the addition of a defendant rather than a substitution, as all of the plaintiff’s original allegations against Southwest Middlesex would remain in place. In other words, the plaintiff essentially seeks to add a municipality that alternatively might have responsibility for maintenance of the road in question, while retaining its ability to pursue the same claim against its originally named municipal target.

[36] I am mindful of the following general view expressed by Justice Kenneth L. Campbell in Stekel v. Toyota Canada Inc. (2011), 2011 ONSC 6507, 107 O.R. (3d) 431 (S.C.J.)[^13], at paragraph 35:

The proper application of the “misnomer” test cannot be reduced to a simple exercise of counting the number of parties in an effort to ensure that there is the same number of defendants before and after the proposed amendment to the Statement of Claim. Instead, as the authorities suggest, the governing legal analysis requires more nuance, and is focused upon whether there exists a coincidence between the plaintiff’s intention to name the defendant and the defendant’s knowledge that it was the intended defendant. If, as a result of that “misnomer” analysis and the making of the proposed amendment, the number of defendants actually increases, then that is a legal result contemplated by s.21(2) of the Limitations Act 2002.

[37] However, as noted by Justice Campbell himself immediately thereafter, the situation before him actually involved a case of corrective amendments for the purpose of substitution rather than addition, even though it resulted in an increase in the number of named defendants. In particular, the existing defendant named in the Stekel statement of claim initially was alleged to have been liable in a number of capacities; i.e., as distributor and manufacturer. The proposed amendments sought to correct the defendant named as manufacturer, by removing the originally named defendant as the alleged manufacturer, and inserting the newly named defendant in place. The proposed amendments thereby effected a corrective substitution in that sense, even though the originally named defendant remained in the litigation as a distributor, such that the overall number of defendants had increased.

[38] Justice Campbell’s comments about the scope of the misnomer doctrine therefore were somewhat obiter, at least in relation to their possible application to a situation such as the one before me; i.e., where the plaintiff’s proposed amendments do not seek to effect any degree of substitution whatsoever to correct a suggested misdescription or misnaming of an existing defendant in any or all of its alleged capacities.

[39] However, in my view it is unnecessary to address and resolve that issue, as the plaintiff’s reliance on the doctrine of misnomer fails in any event on the particular facts of this case.

[40] In that regard, I am prepared to find that, from the outset, the plaintiff has had the requisite intention to name the “correct party” as a defendant, in the sense of naming the municipal entity having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. In particular, I think the circumstances of this case are closely analogous to those in Lloyd v. Clark, supra, in which our Court of Appeal found a similar intention.[^14]

[41] However, in my view application of the misnomer doctrine fails in this case because the evidence before me does not establish the necessary coincidence between that plaintiff intention and Middlesex County having had notice of the plaintiff’s claim.

[42] In that regard, it is not a question of whether or not Middlesex County, upon receipt of the plaintiff’s claim, reasonably would have known that the “litigation finger” was pointing in its direction. To the contrary, the evidence suggests that, knowing the roads over which it had maintenance jurisdiction, Middlesex County would have realized from a reading of the statement of claim and the description therein of the accident and its location that Middlesex County was the plaintiff’s intended litigation target.

[43] From the plaintiff’s perspective, the problem with application of the misnomer doctrine is that, according to the uncontradicted evidence filed on this motion, Middlesex County did not receive notice of the plaintiff’s claim until February 18, 2016; i.e., four days after the ostensible limitation period had expired.[^15]

[44] In the circumstances, the rationales outlined above for permitting amendments outside the limitation period on the basis of misnomer, without regard to questions of due diligence and discoverability, fall away.

[45] In particular, it cannot be assumed that the plaintiff commenced her claim against Middlesex County in time, or that Middlesex County was put on notice of the claim within the limitation period, thereby preventing it from being disadvantaged if it is deprived of its benefit. To paraphrase Master Haberman’s rhetorical question at paragraph 55 of Brown-Vidal v. John Doe, 2015 ONSC 3362, [2015] O.J. No. 2682 (Master), on what basis can the plaintiff claim that Middlesex County had knowledge that it was the intended defendant in an action it would have known nothing about, until sometime after the limitation period had expired?

[46] As I read the authorities, permitting amendments on the basis of misnomer after passage of a limitation period contemplates and requires coincidence of both elements of the requisite plaintiff intention and requisite intended defendant knowledge within that limitation period.[^16] That is not the case here, which in itself seems sufficient to reject the plaintiff’s argument that the desired amendments should be permitted through application of the misnomer doctrine.

[47] If I am mistaken about that, in the particular circumstances of this case I would exercise my residual discretion under Rule 5.04 to deny leave to make the desired amendments on the basis of misnomer.

[48] Without limiting the generality of the foregoing, it seems to me that the intended defendant having no notice of the claim within the limitation period constitutes an exceptional circumstance that takes the situation outside of “mere irregularity”, and raises the definite prospect of such a defendant being unduly prejudiced if the amendments are permitted simply on the basis of misnomer.

Limitation Period

[49] If the doctrine of misnomer does not apply so as to bring the situation within s.21(2) of the Limitations Act 2002, then s.21(1) may apply. Again, that subsection dictates that, “if a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding”.

[50] The provision articulates an important general rule, and the language of the rule is mandatory. On its face, it admits no discretionary application. It appears to be designed to ensure that the expiry of a limitation period against a potential defendant is not somehow procedurally overcome by the simple expedient of adding that party as a defendant to some proceeding already commenced within the limitation period.[^17]

[51] However, an applicable limitation period actually may not have expired, despite the passage of a specified anniversary date, in circumstances where the plaintiff can establish that its operation has been postponed by discoverability considerations.

[52] Strict application of the s.21(1) prohibition, without any allowance for such discoverability concerns, therefore would create the potential for injustice from the plaintiff perspective.

[53] On the other hand, freely allowing plaintiffs to add defendants by the mere mention of possible discoverability issues would be tantamount to ignoring s.21(1) altogether, and create potential injustice from the perspective of proposed defendants.

[54] The authorities accordingly have adopted an approach which effectively attempts to strike a balance between those extremes. In particular:

• To take advantage of the discoverability principle, a plaintiff must show that, before seeking to add a proposed defendant, he or she neither knew, nor by reasonable diligence could have known, that he or she had a claim against that proposed defendant. A plaintiff who seeks to add a proposed defendant to a claim, after passage of the ostensible limitation period, accordingly must put forward some evidence of his or her diligence.[^18]
• In most cases, one would expect to find, as part of a solicitor’s affidavit offered to substantiate the assertion that the party was reasonably diligent, a list of attempts made by the solicitor to obtain information, as well as an explanation as to why certain steps were not taken and/or why he or she was unable to determine the facts.[^19]
• Generally, however, as long as the plaintiff tenders evidence of steps taken to ascertain the identity of the tortfeasors, and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence, that will be the end of the enquiry, and the proposed defendant or defendants will be added with leave to plead a limitations defence. The threshold is not a high one. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence, the motion will be denied. If the plaintiff puts in evidence of steps taken but the proposed defendant also provides evidence of further reasonable steps that the plaintiff could have taken to ascertain the information within the limitation period, then the court will have to consider whether the plaintiff’s explanation clearly does not amount to due diligence. If there is any doubt whether the steps taken by the plaintiff could not amount to due diligence, then that is an issue which must be resolved on a full evidentiary record at trial, or by way of summary judgment. In such cases, it therefore is appropriate to permit the amendment adding the proposed defendant, after which the defendant can in turn plead application of the limitation period.[^20]
• Applying the discoverability principle, so as to permit a plaintiff to add a defendant notwithstanding ostensible expiry of an applicable limitation period, nevertheless remains a matter of judicial discretion.[^21]

[55] In my view, the present case is not comparable to numerous decisions, relied upon by Middlesex County, in which the court found a complete failure on the part of the plaintiff to provide any evidence supporting a claim of due diligence, or any explanation as to why the plaintiff failed to determine the identity of a proposed defendant at an earlier stage.

[56] For example, in Higgins v. Barrie, [2011] O.J. No. 1598 (S.C.J.), the affidavit material filed by the plaintiff was “totally deficient” and “devoid of any due diligence, reasonable efforts or steps undertaken by the plaintiff or his counsel to identify the proposed defendants or any other potential defendants”. The court found it reasonable to infer that no such steps were taken; an inference supported by plaintiff counsel’s admission during the course of the hearing that he made no inquiries and took no steps to determine the identities of any proposed defendants.[^22]

[57] Middlesex County similarly made reference to numerous decisions cited and relied upon in Higgins v. Barrie, supra, such as:

• Hamilton v. Svedas Koyanagi Architects, [2009] O.J. No. 1039 (S.C.J.), wherein there was no evidence presented as to attempts made by the plaintiff to identify the proposed additional defendant or obtain information pointing to its possible liability, and the court drew the inference that nothing was done; and
• Mbobi v. Zurich Canada, [2010] O.J. No. 4705 (S.C.J.), in which the plaintiff advanced no reasonable explanation for its failure to identify the proposed defendant earlier, and could very well have obtained the relevant information within the limitation period.

[58] Middlesex County also relied on the Court of Appeal’s decision in Pepper v. Zellers Inc., supra, wherein the plaintiffs’ material “failed entirely to address whether they ought to have known [the proposed defendant’s] identity, and what, if any, steps they took to determine that identity”. The affidavit material “provided no particulars of any steps taken to obtain information and did not explain why no steps were taken”, and the plaintiffs offered “no explanation other than to say that no one gave them the information”.[^23]

[59] However, this simply is not a case where the plaintiff made no effort to ascertain possible defendants.

[60] Nor is it a case where the plaintiff has failed to file evidence of the steps taken to ascertain the identity of relevant tortfeasors, or evidence of an explanation as to why it failed to identify the proposed additional defendant earlier through the exercise of due diligence.

[61] The evidence in that regard is certainly not as coherently organized, explicit or direct as it might have been, (particularly insofar as it was presented by a law clerk rather than the plaintiff’s lawyer), but in my view the evidence is there. It includes direct and implicit indications that:

• The plaintiff was alone in her vehicle at the time of her first accident, sustained serious injuries, (including concussion and memory loss), and has no recollection of the exact location where the accident took place.
• Within the limitation period, the plaintiff nevertheless did not sleep on her rights. To the contrary:
  • She retained counsel to assist with investigation and pursuit of a legal claim relating to her accident and injuries.
  • Plaintiff counsel then took active steps to ascertain the location of the accident from other sources; e.g., by obtaining and reviewing the relevant Motor Vehicle Collision Report, (apparently through a Freedom of Information Request), as well as maps of the relevant area.
  • Plaintiff counsel also took active steps to determine the municipal entity responsible for maintaining the road. Notice letters were sent to the “lower tier” municipalities in the relevant area, Southwest Middlesex and Dutton Dunwich. (There is no express indication as to why plaintiff counsel chose to focus initially on lower tier municipalities, but the Motor Vehicle Collision Report may have suggested such a focus by referring to the relevant road as “Melbourne Road” rather than “County Road 9”, and a specific municipality.) Plaintiff counsel also then exchanged correspondence with a representative of Dutton Dunwich, and served a statement of claim upon Southwest Middlesex.
  • Plaintiff counsel received separate written indications from Dutton Dunwich and Southwest Middlesex that the latter was the municipal entity with jurisdiction over the relevant road where the accident occurred.[^24] Moreover, there were indications that each municipality had arrived at that same conclusion independently, after conducting and completing its own investigation.[^25]
• Relying on the aforesaid written indications from Dutton Dunwich and Southwest Middlesex, (which in the case of Southwest Middlesex arguably constituted formal admissions), plaintiff counsel formed the view that the plaintiff successfully had identified and sued, within the relevant limitation period, the municipal entity responsible for maintaining the road where the accident had taken place. Plaintiff counsel accordingly took no further steps within the limitation period to ascertain whether another municipal entity (such as Middlesex County) bore that responsibility.

[62] In response, Middlesex County says the plaintiff and her counsel can and should have taken further reasonable steps that would have revealed, within the limitation period, Middlesex County’s jurisdiction over the relevant road location. For example:

• It points to the indication in the relevant Motor Vehicle Collision report that it was the relevant County in which the accident was occurred, and submits it was unreasonable for plaintiff counsel to restrict initial focus and inquiries to the lower tier municipalities in the relevant area. In that regard, counsel for Middlesex County asked me to take judicial notice of the reality that certain roadways in the province, (such as Highway 401), may pass through a lower tier municipality without that municipality having responsibility for the roadway’s maintenance.
• It says an additional notice letter and/or Freedom of Information request therefore could and should have been sent to Middlesex County.
• It submits that more active and timely investigation would have revealed further indications of Middlesex County’s involvement, such as local road signage thought to have been in place at the time of the accident.

[63] The situation accordingly falls within the category of cases, described above[^26], where:

• the plaintiff has tendered evidence of steps taken to ascertain defendants within the limitation period, as well as explanation as to why the intended additional defendant was not identified within that time;
• the proposed additional defendant has responded by providing evidence of further steps that could have been taken to ascertain the information within the limitation period; and
• the court is obliged to consider whether the plaintiff’s explanation clearly does not amount to due diligence, with any doubt in that regard being left to resolution by summary judgment or trial.

[64] In this case, I am unable to find that the plaintiff’s explanation “clearly does not amount to due diligence”.

[65] In that regard, while I accept Middlesex County’s assertion that some roadways pass through lower tier municipalities without those municipalities having responsibility for their maintenance, the converse also is true. Roads and highways of extended length frequently pass through numerous lower tier municipalities where they assume the character of local streets and roads, over which lower tier municipal entities, (rather than the county or province), assume maintenance responsibility.[^27] The reality is that there is simply no necessary correlation between geography and responsibility for road maintenance.

[66] Moreover, there was no evidence before me to suggest that there is any source of authoritative information readily available to the public, (including potential litigants), to indicate and confirm the municipal entity having authority over any particular roadway in a specified location. To the contrary, the evidence before me suggests such information generally must be obtained from municipal entities, and that they themselves may not be able to provide such information readily, without first making further inquiries and/or completing investigations of their own.

[67] In other words, the evidence before me suggests that a potential claimant in the position of the plaintiff stands on the “outside” of a system, which allocates responsibility for road maintenance between municipal entities on the “inside” of that system, and that such a claimant effectively must rely on municipalities operating “inside” that system for definitive answers about particular allocations of road maintenance responsibility.

[68] In such circumstances, is it unreasonable for a claimant in that position to rely on written indications and/or admissions, from a number of municipal entities within that system, and geographically located near the location of the accident, that the correct municipal entity has been targeted and sued within the limitation period?

[69] I do not think it can be said, at this very preliminary stage of the litigation, that the answer is clearly “no”.

[70] For example, analogies might be drawn to authorities such as Stilwell v. World Kitchen Inc., 2014 ONCA 770, [2014] O.J. No. 5242 (C.A.), wherein the plaintiffs in product liability litigation faced practical difficulties in trying to identify the correct defendant in the context of a complicated corporate organizational structure. Preliminary inquiries led the plaintiffs to target and commence litigation against a specific corporation within the limitation period, and counsel for that corporation provided formal written confirmation that the plaintiffs had identified the correct corporate defendant. However, the plaintiffs were later informed that responsibility for the product actually lay with another corporation, in respect of which the ostensible limitation period had run its course. I found that the applicable limitation period against the other corporation had been extended by discoverability considerations, and my ruling in that regard was upheld by the Court of Appeal.

[71] I do not suggest that case is indistinguishable from the situation in this matter. It nevertheless illustrates, I think, why there is reason for doubt as to whether the plaintiff’s explanation in this case should be characterized as unreasonable.

[72] More generally, it seems to me that certain positions advanced by Middlesex County have potentially far-reaching and undesirable implications, warranting determination of the limitation period issues herein on the basis of a complete evidentiary record. For example:

• Middlesex County has emphasized that it was identified in the Motor Vehicle Collision Report as the relevant upper tier municipal entity, and that plaintiff counsel in this case therefore acted unreasonably in focusing exclusively on lower tier municipalities when sending initial notice letters on the plaintiff’s behalf.
• However, as suggested by the standard form template used by police authorities in the preparation of a Motor Vehicle Collision Report, every street and road in the province self-evidently is contained within a particular county, district or regional municipality. One such “higher tier” municipal entity therefore almost certainly will be identified in each such report.
• Moreover, if plaintiffs in motor vehicle litigation cannot reasonably rely on formal indications and/or admissions from municipal entitiels that a particular lower tier municipality has responsibility for maintaining a road, such plaintiffs inevitably will be left in doubt as to whether they are taking a risk in failing to target other municipal entities, (including the county, district or regional municipality identified in a motor vehicle collision report), notwithstanding the indications and assurances they have received.
• The position advocated by Middlesex County, if accepted, therefore may encourage plaintiffs in motor vehicle accident litigation to routinely send notice letters to the higher tier municipal entity identified in a Motor Vehicle Collision Report, and/or routinely name that entity as an additional defendant in claims, as a matter of prudence. The inevitable result would be an expansion of litigation, along with the expense and delay associated with needlessly targeted defendants then having to be removed from the process.

[73] In that regard, I generally am inclined to share the view expressed by Justice Lauwers in Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, [2010] O.J. No. 1872 (S.C.J.), at paragraphs 14-15:

It is not unusual for possible defendants to emerge as a result of information received during the opposite party’s documentary production or during the discovery process in an action. In the context of motor vehicle accidents, examinations for discovery are often delayed to permit injuries to ripen and perhaps resolve so later discovery of additional possible defendants is not so unusual. …

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 section 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.

[Emphasis added.]

[74] In my view, the limitation period concerns raised by Middlesex County therefore should not prevent the plaintiff from making the proposed amendments, after which Middlesex County can in turn plead application of the limitation period.

[75] To be clear, I am in no way deciding or suggesting that the limitation period and discoverability issues herein are or should be resolved in the plaintiff’s favour. I simply find that they should not prevent the plaintiff from making her desired amendments at this preliminary stage of the litigation.

Notice required by statute

[76] That leaves, for consideration, Middlesex County’s argument that the plaintiff’s desired amendments should not be permitted having regard to the plaintiff’s alleged failure to provide notice in accordance with s.44(10) of the Municipal Act.

[77] General principles applicable to ss.44(10) and 44(12) of that legislation include the following:

• The purpose of section 44(10) of the Municipal Act is to ensure that a municipality has a timely opportunity to investigate the place and circumstances of the accident.[^28]
• In 2001, the Legislature nevertheless enacted both s.44(10), extending the period in which notice must be given to ten days, and s.44(12), which provides relief from that requirement if there is a reasonable excuse for any failure in that regard and the municipality is not prejudiced in its defence.[^29]
• Pursuant to s.44(12), a plaintiff who has failed to comply with s.44(10) has the onus of establishing both that there is a reasonable explanation for the delay and that the defendant will not be prejudiced in its defence as a result of the delay.[^30]
• In determining whether the plaintiff has established a “reasonable excuse”:
  • The question to be addressed is whether, having regard to all the circumstances of the case, it was reasonable for the plaintiff not to give notice until the time at which it actually was delivered.[^31]
  • In this context, “reasonable excuse” is to be interpreted “broadly and liberally”, given the protection granted to the municipality where it is prejudiced in its defence.[^32]
  • Relief from the notice requirement is not confined to the narrow circumstance of a plaintiff who is so incapacitated as to be unable to give notice to the municipality.[^33] Moreover, while the impacts of an accident on the physical health, mental health and career of a plaintiff may be relevant and suffice to provide a “reasonable excuse”[^34], the concept of “reasonable excuse” extends beyond such considerations.
  • Lack of awareness of the notice requirement does not constitute a reasonable excuse on its own. However, ignorance of the notice requirement can add to another extenuating circumstance to create a reasonable excuse.[^35]
• In determining whether the delay in giving notice has prejudiced the defence of the municipality:
  • As noted above, the onus is on the plaintiff to meet both branches of s.44(12), and the onus of showing that there is no prejudice to the defendant as a result of the delay in giving notice therefore rests on the plaintiff. However, that section and similar provisions do not use language that creates a presumption of prejudice the plaintiff is required to overcome, as a form of near-reverse onus, resulting from the plaintiff’s failure to give timely notice. Whether or not prejudice results from the failure to give timely notice is a fact-based inquiry.[^36]
  • At the same time, where a plaintiff does not provide notice within 10 days, an “inherent probability of prejudice arises from the bare fact of the accident and the lack of notice”. However, a plaintiff can address that “inherent probability of prejudice” with evidence showing other sources of information about the accident’s circumstances.[^37] For example, a plaintiff might adduce evidence that the municipality had taken steps to investigate the scene in spite of not having notice from the plaintiff; that there were timely photographs taken of the scene; and/or that a named witness to the accident has been identified.[^38]
  • The length of delay is a relevant consideration when examining reasonable excuse.[^39]
  • Courts also recognize that, as a practical matter, the extent of prejudice to a municipality resulting from delayed notice realistically may vary with the nature of the underlying conditions targeted by the plaintiff’s complaint. For example:
    • Where the relevant underlying situation is stable and unchanged between the accident and the giving of notice to the municipality, then the timeliness of notice may be material because there will be no relevant prejudice to the municipality’s opportunity to investigate the place and circumstances of the accident.[^40]
    • Conversely, where the alleged underlying conditions targeted by the plaintiff’s claim are quite ephemeral, (such as the presence of a small piece of transient debris on a sidewalk at a particular moment, or the extent of snow and ice on a road or sidewalk at the particular time an accident occurred), the timeliness of notice may be immaterial for different reasons. Notice given even a few days later realistically may not have provided the municipality with any opportunity to examine and document conditions as they existed at the time of the accident, so as to help its defence. Alternatively, the municipality’s ability to secure a record of snow and ice conditions, as well as contemporary maintenance efforts, may be more likely because of monitoring and recording systems designed to deal with such typically Canadian hazards.[^41]
    • On the other hand, where the alleged conditions underlying the claim could have been investigated and documented by the municipality over a sustained period following the accident but have subsequently been altered by intervening forces, (such as the intervening resurfacing of a road, or shifts in the precise relative elevation of sidewalk bricks owing to the freeze/thaw effects of an intervening winter), delay in giving notice may have caused the municipality very real prejudice.[^42]
• If there is no prejudice to the municipality, even a modest excuse may be sufficient to justify the late non-prejudicial notice.[^43]

[78] Turning to the case before me, I note as a threshold observation that I was provided with no authority indicating or even suggesting that a plaintiff is required to demonstrate satisfaction of the requirements of s.44(12) of the Municipal Act, or even the existence of an arguable case in that regard, as a condition of securing leave to amend a claim so as to add a municipality as a defendant to an action.

[79] To the contrary, all authorities proffered and relied upon by Middlesex County dealt with determination of such ss.44(10) and 44(12) issues in the context of a motion for summary judgment or trial, (or appeals from such decisions).

[80] That may simply suggest that parties and courts generally view such issues as ones inherently more suited to determination on the basis of a complete record, rather than the more limited evidence available at a very preliminary pleading stage.

[81] In my view, however, there is also a compelling legislative reason why courts should take a different approach to limitation period and notice issues, when it comes to the amendment of pleadings that seek to add a municipality as an additional defendant. In particular:

• As noted above, pursuant to s.21(1) of the Limitations Act 2002, “If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.” [Emphasis added.] However, that legislated restriction makes no mention of statutory notice requirements, such as that found in s.44(10) of the Municipal Act.
• Nor, in my opinion, can it be argued successfully that the s.21(1) reference to a “limitation period” was intended to encompass such notice requirements. As noted in Bannon v. Thunder Bay (City), supra, at paragraph 22, the statutory notice requirement in the Municipal Act is “akin to a limitation period”, but it “is not, strictly speaking, a limitation period”. [Emphasis added.] Moreover, as highlighted in Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211, [2016] O.J. No. 805 (S.C.J.), at paragraphs 21-23, that very important distinction is the reason why the statutory notice requirement in the Municipal Act effectively survived enactment of s.19 of the Limitations Act 2002. In particular, s.19 rendered any “limitation period” ineffective, “despite any other Act”, unless it was listed in the Schedule to the Limitations Act 2002, (or the provision establishing it incorporated by reference a provision listed in the Schedule). As s.44(10) of the Municipal Act is neither listed in the Schedule nor otherwise saved by it, it would be of no force and effect if characterized as a “limitation period” for the purposes of the Limitations Act 2002.
• The provisions of the Limitations Act 2002 obviously must be interpreted in a manner that is internally consistent, and the term “limitation period” accordingly cannot have one meaning for the purpose of s.19 of the legislation, and a quite different meaning for the purpose of s.21(1) of the same Act. If the statutory notice requirement in the Municipal Act remains in effect because it was not a “limitation period” caught by the operation of s.19 of the Limitations Act 2002, then it similarly is not a “limitation period” triggering the application of s.21(1) of that Act so as to create an obstacle the plaintiff must address when seeking leave to amend pleadings to add a municipality as a defendant, despite an apparent failure to comply with the notice requirement in s.44(10) of the Municipal Act.

[82] In my view, as far as the provisions of the Municipal Act raised by Middlesex County are concerned, the plaintiff therefore is not required to address s.44(10) or satisfy the requirements of s.44(12) in the context of this particular motion.

[83] If I am mistaken in that regard, then it seems to me that, if the statutory notice requirement in s.44(10) of the Municipal Act is “akin” to a limitation period, (in respect of which courts have developed a balanced approach to deal with discoverability issues raised on a motion such as this), an analogous approach should be taken to s.44(10) and 44(12) issues raised when a municipality objects to proposed pleading amendments adding it as a defendant.[^44]

[84] In particular, in situations where the plaintiff has led evidence making it unclear whether the plaintiff has offered a reasonable explanation for the delay, and/or unclear whether the defendant will be prejudiced in its defence as a result of the delay, then any doubts in that regard should result in the plaintiff being granted leave to make the desired amendments, with the municipal entity thereafter being able to plead and rely upon the alleged failure to provide notice as required, so that the issue can be resolved on a full evidentiary record at trial or by way of summary judgment.

[85] In this case, for reasons similar to those set forth in paragraphs 64-73, supra, I think the evidence and explanation for delay proffered by the plaintiff, (canvassed above in relation to the limitation period issue), are sufficient to raise doubt about whether a court would find no reasonable explanation for the delay, especially if “reasonable excuse” is given a broad and liberal interpretation.

[86] Similarly, I think the evidence before me is sufficient to raise doubt about whether a court would find that the defence of Middlesex County has been prejudiced by the plaintiff giving it delayed notice of her claim. In that regard, I note the following:

• The evidence before me indicates the existence of at least two identified independent witnesses who may be capable of providing the county with “other sources of information about the accident’s circumstances”; i.e., the individual named as a witness to the accident in the Motor Vehicle Collision Report, and the investigating officer who prepared that report and almost certainly attended at the scene of the accident shortly after it occurred.[^45]
• I think I can take judicial notice of the reality that the investigating officer, (in accordance with routine procedures described again and again in officer testimony before our courts), is likely to have made contemporaneous notes of his observations and findings at the scene of the accident, including the information being provided by an independent witness expressly identified in the Motor Vehicle Collision Report. Such considerations militate against any assumption that the recollection of the two identified witnesses necessarily will have been lost through the fading of memory and the passage of time.
• The focus of the plaintiff’s road maintenance complaint is the accumulation of ice and/or snow on the relevant road at the time of her accident. That inherently is an ephemeral condition capable of change within a matter of hours. To echo the rhetorical questions posed by Justice Lauwers in Delahaye v. Toronto (City), supra, at paragraph 23, in such circumstances “What different would it have made if the required notice had been served within 10 days?”, and “What could the [county] have done differently that would have helped with its defence?” A site inspection carried out even one day after the plaintiff’s accident may not have produced any reliable indication as to the ice and snow conditions existing at the relevant road location when the accident occurred. Moreover, there is nothing in evidence before me to indicate or suggest that records of the local weather and the county’s maintenance activity in relation to the road in question around the time of the accident, (usually produced by municipalities in litigation of this nature), would not be available.
• As emphasized by plaintiff counsel, the evidence currently available also does not make it clear whether or not Middlesex County actually had notice of the plaintiff’s accident and/or a copy of the associated police report, (as opposed to notice of the plaintiff’s related claim), sometime before February 18, 2016. In that regard, plaintiff counsel notes that, in the correspondence sent by Elgin County’s representative on March 4, 2016, reference is made to an apparent system whereby Elgin County somehow is able to maintain a record of collisions occurring within the county, and associated police reports, before receiving notice of any related claims. Suspicion that the neighbouring Middlesex County may maintain a similar system apparently prompted plaintiff counsel’s unanswered written request of May 3, 2016, seeking further information from Middlesex County in that regard. As noted above, Middlesex County emphasizes that it has a policy whereby it “does not normally conduct any investigations into motor vehicle accidents that occur within its jurisdiction unless notice of a potential claim against the County has been received”. However, I agree with plaintiff counsel that such evidence does not address and answer the question of whether and to what extent Middlesex County actually was aware of the plaintiff’s accident before, (and perhaps well before), it received formal notice of the plaintiff’s claim on February 18, 2016. That information, which Middlesex County would be obliged to disclose during documentary and oral discovery, also may be relevant in an eventual determination as to whether, and to what extent, Middlesex County has been prejudiced by the plaintiff’s failure to provide formal notice within the 10 days specified by s.44(10) of the Municipal Act.

[87] In my view, the statutory notice concerns raised by Middlesex County therefore also should not prevent the plaintiff from making her desired amendments, after which Middlesex County can in turn plead and rely upon the plaintiff’s alleged failure to comply with s.44(10) of the Municipal Act.

[88] Again, to be clear, I am in no way deciding or suggesting that the statutory notice issues herein are or should be resolved in the plaintiff’s favour. I simply find that they should not prevent the plaintiff from making her desired amendments at this preliminary stage of the litigation.

Non-compensable prejudice

[89] As noted at the outset, Rule 5.04(2) permits amendments to add a party on such terms as are just, “unless prejudice would result that could not be compensated for by costs or an adjournment”.

[90] For the sake of completeness, I note my view that there really was no evidence, (apart from considerations relating to the limitation period and statutory notice requirement addressed above), to suggest that permitting the amendments will cause Middlesex County to experience any non-compensable prejudice, such as that associated with intervening death of a material witness or destruction of essential files.[^46]

[91] Although counsel for Middlesex County generally suggested that witness memories fade with delay, without more such a bald assertion does not amount to a showing of prejudice in the sense required.[^47]

Residual discretion

[92] As noted above, I also am mindful of my general residual discretion under Rule 5.04(2) to refuse the desired amendments; e.g., on the basis of the limitation period and notice concerns raised by Middlesex County. However, I am not inclined to do so.

[93] On balance, I think the plaintiff should be permitted to make her amendments, and that any resulting limitation period and notice issues should be resolved on a full evidentiary record at trial, or by way of summary judgment.

Conclusion

[94] For the reasons outlined above, I find that an order should go granting the relief sought in sub-paragraphs (a) and (b) of the prayer for relief on page 1 of the plaintiff’s notice of motion dated March 8, 2008.

[95] In my view, the relief is warranted not on the basis of misnomer, but because issues regarding discoverability of the plaintiff’s claim against Middlesex County, and the possible application of s.44(12) of the Municipal Act, are incapable of being resolved properly at this pleadings stage of the litigation.

[96] The plaintiff should be granted leave to make her desired amendments, on the understanding that Middlesex County will be entitled to then plead and rely upon alleged passage of the applicable limitation period, and the plaintiff’s failure to comply with the statutory notice requirement set forth in s.44(10) of the Municipal Act. In due course, after a completion of documentary and oral discovery procedures, those issues then may be resolved on a more fulsome record either at trial, or by way of summary judgment.

Costs

[97] At the time of the hearing before me, the parties were unable to agree on an appropriate cost disposition dependent on either party’s success.

[98] After my indication of an intention to reserve my substantive decision, the parties instead made competing cost submissions, supported by respective cost outlines provided to the court, whereby:

• the plaintiff requested, in the event of success, partial indemnity costs totalling $8,061.99, (comprised of $6,812.18 for fees and $1,249.99 for disbursements and applicable HST); and
• Middlesex County requested, in the event of success, partial indemnity costs totalling $9,677.97, (comprised of $9,277.50 for fees, a suggested $330.00 appearance fee to argue the motion, and a disbursement of $70.47).

[99] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.

[100] This is supplemented by the provisions of Rule 57.01, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131.

[101] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.

[102] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4^th) 557 (Ont.Div.Ct.).

[103] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant.[^48]

[104] In this case, the plaintiff essentially was successful in relation to her motion for leave to amend, and the motion arguably should not have been resisted by the defendant based on the existing record. In particular, whether or not particular plaintiff arguments such as misnomer were successful, success should be determined on the basis of outcome, and distributive cost awards are rarely if ever appropriate.[^49]

[105] That in turn suggests that the plaintiff should be entitled to her costs of the motion.

[106] Having said that, it seems to me that a potential injustice may arise if the plaintiff is granted her costs of the motion in any event, given the nature of the underlying issues before me.

[107] In particular, if it ultimately is determined on a more fulsome and complete record that the plaintiff’s claim against Middlesex County should fail because operation of the applicable limitation period was not sufficiently postponed by considerations of discoverability, and/or because there was a failure to provide the statutory notice required by s.44(10) of the Municipal Act, in circumstances not excused by the operation of s.44(12) of that legislation, the plaintiff will have put Middlesex County and the court to considerable time and expense that in retrospect could have been avoided had she conceded points raised by Middlesex County in response to this motion.

[108] In the particular circumstances of this case, I think justice will be done if an order is made awarding the plaintiff her costs of the motion payable in the cause; i.e., if her claim against Middlesex County succeeds.

[109] As for quantification of those costs, I have regard to all the factors set forth in Rule 57.01, but note in particular that the motion raised numerous issues of some complexity, and the outcome was of potentially vital importance to the plaintiff, (particularly if Middlesex County is found to have exclusive maintenance responsibility in relation to the road in question). Moreover, the bill of costs tendered by Middlesex County indicates that it placed as much or more importance on the motion, and its cost expectations in relation to this step in the proceeding exceeded those of the plaintiff.

[110] Having said that, I still have concerns about the quantum of global partial indemnity costs sought by each side in relation to a motion that did not proceed to cross-examinations on affidavit material, relied on a relatively modest number of documentary exhibits, and required only a two hour special appointment hearing.

[111] On the whole, having regard to the above considerations, the circumstances of the case, and the ultimate “cross-check” described above, (to ensure the overriding principle of reasonableness), I think justice will be done in this matter by an order awarding the plaintiff her costs of the motion in the cause, fixed in the amount of $5,000.00.

Justice I F. Leach

Date: January 3, 2017

[^1]: The plaintiff’s affidavit material suggests the pleading was filed two days earlier, and the pleading itself is dated December 15, 2015. However, the relevant cover letter and fax notations indicate that it actually was not served on plaintiff counsel until the afternoon of December 17, 2015.

[^2]: I note that the exhibit included at Tab 1, sub-tab “C” of the motion record filed by Middlesex County contains not only the letter of February 16, 2016, and its indicated statement of claim and photograph attachments, but an interspersed single page print out depicting a portion of a table apparently found on “Wikipedia”, containing information under the heading “List of numbered roads in Middlesex County”. The ninth row of the table contains information, including a reference to “Melbourne Road”, which someone has marked with a handwritten asterisk at each side. However, neither the page nor any information on the page is referred to in the cover letter, and it therefore is not clear to me whether it formed part of the original package mailed to Middlesex County or somehow found its way into the relevant Tab of the responding motion record through other means. In any event, there is nothing to indicate the origin, nature or significance of the information set out in the table, the column headings of which are missing.

[^3]: See, for example: Bannon v. Thunder Bay (City), 2000 CanLII 5708 (ON CA), [2000] O.J. No. 1368 (C.A.), at paragraph 22; and Crinson v. City of Toronto (2010), 2010 ONCA 44, 100 O.R. (3d) 366 (C.A.), at paragraph 6.

[^4]: See, for example: Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 (ON CA), [2001] O.J. No. 4567 (C.A.), at paragraphs 24-30; and Pepper v. Zellers Inc., [2006] O.J. No. 502 (C.A.), at paragraph 14.

[^5]: See, for example: Ladouceur v. Howarth, 1973 CanLII 30 (SCC), [1973] S.C.J. No. 120 (S.C.C.); J.R. Sheet Metal & Manufacturing Ltd. v. Prairie Rose Wood Products, 1986 ABCA 4, [1986] A.J. No. 7 (C.A.); Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.); and Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682 (C.A.).

[^6]: See, for example: Kitcher v. Queensway General Hospital, supra, at paragraph 2; Spirito Estate v. Trillium Health Centre, 2008 ONCA 762, [2008] O.J. No. 4524 (C.A.), at paragraphs 6 and 15; and Essar Algoma Steel Inc. v. Liebherr (Canada) Co., 2011 ONSC 1688, [2011] O.J. No. 1311 (Div.Ct.), at paragraph 8.

[^7]: See, for example: Kitcher v. Queensway General Hospital, supra, at p.591; and Spirito Estate v. Trillium Health Centre, supra, at paragraphs 11 and 15.

[^8]: See Ormerod v. Strathroy Middlesex General Hospital, 2009 ONCA 697, [2009] O.J. No. 4071 (C.A.); and Sorokataya v. Keith, [2010] O.J. No. 3429 (S.C.J.).

[^9]: See, for example: Skribans v. Nowek, 2012 ONSC 532, [2012] O.J. No. 339 (Master), at paragraphs 7, 36-37, and 41.

[^10]: See, in particular: Lloyd v. Clark, supra; Ormerod v. Strathroy Middlesex General Hospital, supra; and Spirito Estate v. Trillium Health Centre, supra.

[^11]: This second required element has been described in the vernacular as the “litigating finger” test, in the sense of asking whether a reasonable person, upon reading the plaintiff’s pleading, would have known that the “litigating finger” really was pointing at him or her, despite the actual manner in which the defendant was named or described. In that regard, reference frequently is made to the manner in which the English Court of Appeal articulated the test in Davies v. Elsby Brothers Ltd. (1960), [1961] 1 W.L.R. 170 (Eng.C.A.): “I think the test must be: how would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself, ‘Of course it must mean me, but they have got my name wrong’, then there is a case of mere misnomer. If, on the other hand, he would say, ‘I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries’, then it seems to me that one is getting beyond the realm of misnomer.”

[^12]: See, in particular, Ormerod v. Strathroy Middlesex General Hospital, supra, at paragraphs 31 and 32.

[^13]: I note that Justice Campbell was sitting in appeal from the decision of a Master. Moreover, leave to appeal from Justice Campbell’s decision was denied: 2012 ONSC 2572 (Div.Ct.).

[^14]: In Lloyd v. Clark, supra, the plaintiff was involved in a motor vehicle accident. Precisely two years later, the plaintiff commenced an action for damages against two specific municipalities; i.e., the Towns of Ajax and Whitby. Shortly thereafter, those two municipal defendants advised the plaintiff that the accident actually took place in the regional Municipality of Durham. Subsequently, and after the expiry of the two year limitation period, the plaintiff brought a motion to substitute the Regional Municipality of Durham for the Towns of Ajax and Whitby. The motions judge concluded that the case was not simply one of “misnomer”, and refused to make the proposed substitution of defendants, as the plaintiff had deliberately named the parties he wanted as defendants. However, the Court of Appeal reversed that decision, concluding that the motions judge ought to have permitted the title of the proceedings to be “corrected” to name the Regional Municipality of Durham as a defendant in place of the Towns of Ajax and Whitby, pursuant to s.21(2) of the Limitations Act 2002. That conclusion was based in part on the Court of Appeal’s view that, “on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred.” [Emphasis added.] In my view, the same can be said about the plaintiff in this case.

[^15]: The situation before me therefore is distinguishable from cases such as Lloyd v. Clark, supra, where there was clear evidence that the proposed defendant immediately knew that it was the proposed defendant, (given a letter sent by its insurance adjuster to the plaintiff’s solicitor upon receipt of the statement of claim), or Stekel v. Toyota Canada Inc., supra, (where there was evidence of a close relationship between the existing and proposed corporate defendants, as well as indications of common legal representation and relaying of information throughout the relevant corporate network and hierarchy, permitting an inference of probability that the proposed defendant “knew all about the plaintiffs’ claims”).

[^16]: See, for example, Wolkowicz v. Avignon Inc., [2011] O.J. No. 4804 (Master), at paragraph 38.

[^17]: See Stekel v. Toyota Canada Inc., supra, at paragraph 13.

[^18]: Burtch v. Barnes Estate, 2006 CanLII 12955 (ON CA), [2006] O.J. No. 1621 (C.A.), at paragraphs 25 and 27.

[^19]: Zapfe v. Barnes, 2003 CanLII 52159 (ON CA), [2003] O.J. No. 2856 (C.A.), at paragraph 35.

[^20]: See Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Master), affirmed 2004 CanLII 73251 (ON SCDC), [2005] O.J. No. 1400 (Div.Ct.), and cited with approval by our Court of Appeal in Pepper v. Zellers Inc., supra. See also Banque nationale de Paris (Canada) v. Canadian Imperial Bank of Commerce, [2000] O.J. No. 134 (S.C.J.), at paragraph 25; Wakelin v. Gourley, 2005 CanLII 23123 (ON SC), [2005] O.J. No. 2746 (Master), at paragraph 15; and Burtch v. Barnes Estate, supra, at paragraphs 27 and 29.

[^21]: Burtch v. Barnes Estate, supra, at paragraph 22.

[^22]: Higgins v. Barrie, supra, at paragraphs 32-37.

[^23]: Pepper v. Zellers Inc., supra, at paragraphs 20-21.

[^24]: As noted above, the claims examiner employed by the insurer of Dutton Dunwich stated that conclusion in a letter dated August 6, 2015. For its part, Southwest Middlesex expressly indicated in its statement of defence that its employees and agents had acted to maintain the road, and that Southwest Middlesex took all reasonable steps to maintain the road.

[^25]: The second paragraph of the aforesaid letter of August 9, 2015, sent on behalf of Dutton Dunwich, opens with the phrase “We have now completed our investigation”. As for Southwest Middlesex, its defence counsel expressly requested an indulgence in serving a statement of defence to “review and investigate” the matter, before then delivering a pleading containing the aforesaid express indications that Southwest Middlesex had been maintaining the relevant road.

[^26]: See the third sub-paragraph of paragraph 54, supra.

[^27]: Consider, for example, Highways 2 and 4 which pass through the City of London, and Highways 7 and 8 which pass through the City of Stratford.

[^28]: See, for example: Delahaye v. Toronto (City), 2011 ONSC 5031, [2011] O.J. No. 4006 (S.C.J.), at paragraph 12, and the numerous authorities cited therein; and Seif v. Toronto (City), 2015 ONCA 321, [2015] O.J. No. 2458 (C.A.), at paragraphs 36 and 55.

[^29]: See Crinson v. City of Toronto, supra, at paragraph 18.

[^30]: See, for example: Colangelo v. Mississauga (City) (1988), 1988 CanLII 4760 (ON CA), 66 O.R. (2d) 29 (C.A.), at p.44, leave to appeal refused, [1998] S.C.C.A. No. 477; Argue v. Tay (Township), 2013 ONCA 247, [2013] O.J. No. 1787 (C.A.), at paragraph 2, leave to appeal refused, [2013] S.C.C.A. 246; and Seif v. Toronto (City), supra, at paragraph 54.

[^31]: Ibid., at paragraphs 22-23.

[^32]: See, for example: Cena v. Oakville (Town), [2009] O.J. No. 251 (S.C.J.), at paragraph 15, quoted with approval in Crinson v. City of Toronto, supra, at paragraph 20; and Seif v. Toronto (City), supra, at paragraph 31.

[^33]: Crinson v. City of Toronto, supra, at paragraph 19.

[^34]: Ibid., at paragraphs 29-38.

[^35]: See, for example: Crinson v. City of Toronto, supra, at paragraph 38; and Seif v. Toronto (City), supra, at paragraph 29.

[^36]: See Delahaye v. Toronto (City), [2011] O.J. No. 4007 (S.C.J.), at paragraphs 13-15; and Seif v. Toronto (City), supra, at paragraph 55.

[^37]: See, in that regard: Carmichael v. Edmonton City, 1933 CanLII 37 (SCC), [1933] S.C.R. 650, at p.655; and Seif v. Toronto (City), supra, at paragraph 56.

[^38]: See, for example: Langille v. Toronto (City), 2010 ONSC 443, [2010] O.J. No. 196 (S.C.J.), at paragraph 22; and Seif v. Toronto (City), supra, at paragraphs 36 and 56.

[^39]: Argue v. Tay (Township), 2012 ONSC 4622, [2012] O.J. No. 3776 (S.C.J.), (upheld on appeal as noted above), at paragraph 51.

[^40]: See, for example: Blair v. Barrie (City), [2006] O.J. No. 4997 (S.C.J.), at paragraph 16, which focused on the unchanged height of a drop-off at the side of a road. Similar considerations might apply to a claim relating to an unchanged road alignment, or the placement and extent of signage which remained unaltered between the time of an accident and the giving of notice.

[^41]: See Delahaye v. Toronto (City), supra, at paragraphs 22-23.

[^42]: See, for example: Argue v. Tay (Township), 2012 ONSC 4622, [2012] O.J. No. 3776 (S.C.J.), at paragraph 66, (again, upheld on appeal as noted above); and Seif v. Toronto (City), supra, at paragraphs 40-45.

[^43]: See Cena v. Oakville, supra, at paragraphs 12 and 18; and Fremeau v. Toronto (City), [2009] O.J. No. 2391 (S.C.J.), at paragraph 24.

[^44]: Doing so seems particularly appropriate having regard to authorities confirming that the principles of discoverability are relevant factors to determining whether an excuse for late statutory notice is reasonable. See, for example: Blair v. Barrie (City), supra; Cena v. Oakville, supra; and Fremeau v. Toronto (City), supra.

[^45]: As noted above, other EMO and fire emergency personnel also attended at the scene of the accident, shortly after it occurred, and therefore may have had a similar opportunity to make observations about prevailing weather and road conditions. However, the authorities noted above suggest that even one identified and named witness may be sufficient to counter suggestions of prejudice to the municipality, and in this case there already are two such witnesses.

[^46]: See King’s Gate Developments Inc. v. Drake, 1994 CanLII 416 (ON CA), [1994] O.J. No. 633 (C.A.), at paragraphs 5 and 7.

[^47]: See Finlay v. Van Passen, 2010 ONCA 204, [2010] O.J. No. 1097 (C.A.), at paragraph 29.

[^48]: See Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.

[^49]: See, for example: Oakville Storage & Forwarders Ltd. v. Canadian National Railways Co. (1991), 1991 CanLII 7060 (ON CA), 5 O.R. (3d) 1 (C.A.); and Skye v. Matthews (1996), 1996 CanLII 1187 (ON CA), 47 C.P.C. (3d) 222 (Ont.C.A.).