COURT FILE NO.: CV-13-0341-00 DATE: 2017 04 03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE MACPHERSON M. Kealy, Counsel for the Plaintiff Plaintiff

• and -

SYLVIA MARIE-LOUISE SAMUEL and DAVID PAQUETTE (also known as MARK PAQUETTE) Defendants -and- No one appearing for the Defendants

ALLAN STAR ROOFING LTD. EBRAHIM KHEZRI, JOHN DOE I and JOHN DOE II Third Parties D. Birestone, Counsel for the Third Parties

HEARD: March 13, 2017

ENDORSEMENT

TRIMBLE J.

NATURE OF MOTION

[1] The Plaintiff seeks to add the Third Parties, Allan Star Roofing Ltd. and Ebrahim Khezri, as Defendants to this action.

BRIEF BACKGROUND

[2] On May 15, 2012, the plaintiff, Mr. MacPherson, fell from the roof of Mrs. Samuel’s house. He was badly injured.

[3] Mr. MacPherson’s friend, the Defendant, Paquette (in default), hired Mr. MacPherson to assist with roofing work at Ms. Samuel’s house. When Mr. MacPherson arrived at the job, he saw Mr. MacPherson and two other individuals whom Mr. Pacquette identified as friends who used to work with him, who were also roofers. Mr. MacPherson considered Mr. Paquette as his boss and took instruction from him.

[4] Mr. MacPherson slipped and fell from the roof. He was not wearing appropriate harnesses and tethers. On January 25, 2013, Mr. MacPherson sued Ms. Samuels and Mr. Paquette, naming him by a number of aliases. The Defendant, Samuels defended by Statement of Defence and Crossclaim dated August 26, 2013.

[5] On June 5, 2014, Mr. MacPherson attended for Examination for Discovery. He said that he did not know the other two individuals on the roofing project, but believed them to be Mr. Paquette’s friends or co-workers.

[6] On June 5, at the examination of Ms. Samuels, she brought a work order issued to Ms. Samuels by Allan Star. Ms. Samuels testified that she hired Allan Star after Mr. MacPherson’s injury, to finish the roof. She said that immediately after the Plaintiff’s accident, she wanted the work to continue. She said “Allan Star was already onsite (sic)” and agreed to complete the work. “So, in a sense, Allan Star took over the job.” She thought Allan Star was assisting Paquette. As it turned out, Ebrahim Khezri, the sole director and officer of Allan Star, was one of those other two men working on May 15, 2012.

[7] As a result of this evidence, on June 9, 2014, Mr. MacPherson’s then lawyer put Allan Star and Mr. Khezri on notice of the Plaintiff’s intention to sue them. On August 14, 2014, Ms. Samuels commenced a Third Party claim. Ms. Samuels claimed that Allan Star was retained to complete the work or was retained by Paquette as a subcontractor to do the work. The Plaintiff, claimed the Defendant, was an agent, subcontractor to or employee of Allan Star. By Statement of Defence, the Third Parties denied Ms. Samuels’ allegations. They pleaded that Mr. Khezri was a labourer employed by Paquette, and had neither Allan Star nor Mr. Khezri had supervisory responsibilities for the Plaintiff.

[8] This motion was filed on April 7, 2016, within the two years since the examinations for discovery, the earliest point at which Mr. MacPherson knew of Mr. Khezri’s involvement. The parties have agreed that the lapse of time since April 7, 2016 does not operate to the prejudice of either party.

POSITIONS OF THE PARTIES

[9] The Plaintiff and Third Parties agree that the issue on this motion is discoverability: when did the plaintiff know, or ought he to have known by the exercise of reasonable diligence, the material facts upon which the claim against the proposed Defendant would be founded. The Defendant. Ms. Samuels, took no position on the motion.

1) Plaintiff/Moving Party’s Position

[10] The Plaintiff says that he did not discover, nor could he have discovered by reasonable diligence, the identity of the others on the roof until Ms. Samuel’s examination on June 5, 2014. The Plaintiff relies on the doctrine of discoverability. Alternatively, he did not know that he had a cause of action against Allan Star or Mr. Khezri until Ms. Samuel pointed the liability finger at him on August 22, 2014 when she commenced her Third Party claim.

[11] By letter dated October 26, 2016, Mr. Khezri, in answers to undertakings, said that at minimum he was a worker under the Occupational Health and Safety Act. Ms. Samuel, by letter dated October 21, 2016, in answers to her undertakings, said that at minimum Mr. Khezri was a worker under the OHSA and owed the following duties:

• Report to his employer or supervisor the absence of or defect in any equipment or protective device of which he is aware and may endanger himself or someone else;
• Report to his employer or supervisor any contravention of the Act or regulations, or the existence of any hazard he knows of.

[12] It was only at that time that Mr. MacPherson was aware, or ought to have been aware, of the facts on which he could base his claim against the Third Parties, directly, and the cause of action for breaching the OSHA.

2) Third Parties’ Position

[13] The Third Party says that the Plaintiff’s position is, in effect, that he did not know the cause of action against Mr. Khezri and Allan Starr until it was pleaded in the Third Party claim. This is insufficient. Further, in order to add the Third Parties as Defendants, he must have facts on which to base the claim. He has none.

[14] Third, the Third Parties say that all facts upon which Mr. MacPherson could found his claim, except Mr. Khezri’s name, were known at the time of Mr. MacPherson’s fall, and Mr. Khezri’s identity was readily ascertainable with due diligence.

THE LAW

[15] There is little dispute about the law.

[16] Section 5(1) of the Limitations Act, 2002, S. O. 2002, c. 24 provides that the 2 year limitation set out in s. 4, may be extended to 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).”

[17] In this case, there is no suggestion that Mr. MacPherson’s abilities and circumstances limited his ability to investigate and comprehend the facts on which his claim might be based.

[18] The onus is on the Plaintiff to establish that discoverability delayed the commencement of the running of the limitation by establishing, on evidence, that the material facts giving rise to the action were not within his knowledge within the requisite time period from the date he issued the Statement of Claim (see Findlay v. Holmes, [1998] O.J No. 2796 (C.A.), para 25 & 26, and McSween v. Louis, [2000] O.J. NO. 2076 (C.A.), para 37 (C.A.). With respect to s. 5(2) of the Limitations Act, 2002, there is a rebuttable presumption that the Plaintiff had knowledge sufficient to start the limitations running, on the date the event occurred giving rise to the cause of action (Ferrara v. Lorenzetti, 2012 ONCA 851 (C.A.), para. 8). The test under s. 5(1)(b) is an objective test (See Ferrara, supra, para. 33).

[19] Limitations are not to be ignored. The Plaintiff must act with due diligence in acquiring facts in order to be apprised, fully, of the material facts on which the claim can be based so as not to delay the commencement of the limitation period (see Soper v. Southcott, [1998] O.J. No. 2799 (C.A.), para. 21).

[20] The Plaintiff need not be certain that the Defendants’ act or omission caused or contributed to the loss in order for the limitation to begin to run. The limitation begins to run from when the Plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer that the Defendants’ acts or omissions caused or contributed to the loss (see Pepper v. Zeller’s Inc., 2006 ONCA 807 at para. 16, Wang v. Adler (2004), 70 O.R. (3d) 460 (Ont. Master), at para. 45, aff’d by Div. Ct., Kowal v. Ciddio, 2012 ONCA 512 (C.A.), para 18 & 19, Gaudet et al. v. Levy et al. (1984), 47 O.R. (2d) 577 (H.C.), McSween, supra, para 46, and Lawless, supra, para. 28).

[21] The limitation begins to run when the Plaintiff knew or ought to have known, on a prima facie basis, that she had (i) suffered injury, (ii) because of an act or omission (iii) by the proposed defendants, and (iv) that an action would been an appropriate remedy (see Kowal, supra, at para 19, and Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, [2013] O.J. NO. 634 (Ont. S.C.J.), at para. 56 to 58, Wong v. Adler, supra]. The discovery of a claim does not depend on the plaintiff knowing that his or her claim is likely to succeed. It runs from when the Plaintiff knows or ought to have known of a potential claim. The fact that he later discovers facts which change a borderline claim into a viable one does not postpone the discovery of the claim (see Tender Choice, supra, at para. 59].

[22] The Court of Appeal in Lawless, supra, at para. 36 and 37 tells us:

[36]… To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding, but is not needed to discovery the claim. As this court stated in McSween, at para. 19:

To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view, places the bar too high. Both the one year limitation period itself, as well as the production and discovery process, and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants. In order to come within s. 17 of the [Health Disciplines Act], it is sufficient if the plaintiff knows enough facts [upon which] to base her allegation of negligence against the defendant [Emphasis added].

[23] Further, one does not need full knowledge or appreciation of the nature of the damages before the limitation clock starts running. The exact nature and extent of the injury need not be known for the cause of action to accrue. Once the Plaintiff knows that some damage has occurred and has identified the possible tortfeasor and his acts as the potential cause, the cause of action has accrued. Neither the extent of the damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended period of time beyond the general limitation period (see Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 18).

[24] The evidentiary threshold for the Plaintiff to demonstrate due diligence is low, and he should be granted a certain latitude before declaring that the limitation period has run (see Diotte v. Hillan, 2010 ONSC 1480 (S.C.J.) at para. 34, Wakelin v. Courley (2005), 76 O.R. (3d) 272 (Ont. Master), at para. 14-15, White v. Mannen, 2011 ONSC 1058 (S.C.J.), paras 26–29).

[25] Finally, pertinent to the Third Party’s argument, discoverability is irrelevant where the Plaintiff has no cause of action against the proposed defendants (see Lafrance Estate v. Canada (2003), 169 O.A.C. 376 (C.A. at para. 45, A Mantella & Sons Ltd. v. Ontario Realty Corp., et al. (2008), 91 O.R. (3d) 449 (S.C.J.) at paras. 41-42).

RESULT

[26] The Plaintiff has leave to add the Third Parties as Defendants to the action.

[27] Costs are agreed upon at $5,000. The Defendant shall pay them to the Plaintiff, in the cause.

DISCUSSION

[28] Is there a Cause of Action?

[29] I agree with the Third Parties that, on the facts as developed in this case, there is no cause of action against Mr. Khezri or Allan Star for failing in their supervisory role; based on the evidence, neither had such a role.

[30] In this case, however, the Plaintiff has an arguable a cause of action against the Third Parties in negligence, informed by their failure to report to Mr. Paquette the absence of or defect in any safety equipment Mr. MacPherson used or any unsafe conditions or contravention of the OSHA or regulations thereunder, pursuant to s. 28(1)(c) or (d), and that the Third Parties may have breached that duty (see McAlonen v. Nadel, Baltadjian v. Roman Catholic Episcopal Corp., 2017 ONSC 61 (S.C.J.). Mr. Khezri admitted he was a worker under the act. Regardless of his admission, on the facts as stated he was a worker, which OSHA defines as including “A person who performs work or supplies services for monetary compensation.”

[31] The Plaintiff says that it was not until the Defendant “pointed a finger” at the Third Parties by alleging default by them that the clock started to run. They cite Todhunter v. Owles, 2015 ONSC 5656 (S.C.J.), at para. 18–20 as support for this proposition.

[32] In my view, the Plaintiff is not correct. In Todhunter, the Plaintiff was injured in a motor vehicle accident. The MVA Report indicated that the roads were icy and slippery and that there was freezing rain and drifting snow. The Defendants did not raise in their Statement of Defence any allegation of road conditions contributing to the loss, or that the municipality was at fault. The issue arose first at Examination for Discovery when the Defendant said he lost control of his vehicle and skidded, which he attributed to black ice on the road at its bend, at the site of the collision. Six weeks after the Defendants’ discovery, they issued a Third Party claim against the municipality. Over a year later, the Plaintiff moved to add the municipality as a Defendant.

[33] Todhunter does not stand for the proposition advanced by the Plaintiffs; namely that the two years begins to run from the point that the Defendant “points the finger” at the proposed Defendants. Todhunter was a leave to appeal application. The learned motions judge allowed the addition of the Third Parties because the issue of “black ice”, the fact on which the claim of poor winter maintenance might be founded, first came up at the Examinations for Discovery, a point after the initial two years had passed. The motion to add the Third Parties as Defendants, however, was brought within two years of the Plaintiff discovering the fact. In addressing whether to grant leave from Tranmer, J.’s decision to grant the Plaintiff leave to add the Third Parties, Tausendfreund, J. dismissed the leave application. The learned leave motions judge made no finding that the limitation began to run once the finger was pointed by the Defendant at the proposed Defendants. Tausenfreund, J. discussed it merely as an argument the Plaintiff raised before him.

[34] Why do I Allow the amendment in this case, especially since Mr. MacPherson knew that there were others working on the roof? The Third Parties say that the only “fact” Mr. MacPherson did not know that might support his claim in negligence as informed by s. 28(1)(c) or (d) of OSHA, was Mr. Khezri’s name. Mr. MacPherson never asked for the identity of the other workers on the roof. He did not conduct due diligence.

[35] I disagree. It is clear that the Plaintiff did not know Mr. Khezri’s identity at the time of the loss. It was not until the examination for discovery that Mr. Khezri’s name was first mentioned. Those who did know of Mr. Khezri’s involvement and identity were Mr. Paquette (who never responded to the claim) and Ms. Samuels, who never identified Mr. Khezri or Allan Star until her Examination for Discovery. Given the low threshold imposed on Mr. MacPherson, he does not have the obligation to ask the Defendant “do you know of anyone else who might be liable?”

COSTS:

[36] The parties agreed, at my suggestion, on costs. They agreed that costs would be to the successful party, fixed at $5,000.00, all inclusive. I accept this agreement with one modification: the Defendant shall pay the Plaintiff $5,000.00, in the cause.

TRIMBLE J. Released: April 3, 2017