Stratton v. Petro Canada, 2017 ONSC 4567

Court File No.: 7490/2014

Date: 2017-07-28

Ontario Superior Court of Justice

Between:

Brooke Stratton, and Mya Grace Williams and Aaryk Mae St. Jean, by their litigation guardian Brooke Stratton

Plaintiffs

– and –

2145754 Ontario Limited o/a Petro Canada, and 2145744 Ontario Limited

Defendants

Counsel:

Catherine L. Wilde, for the Plaintiffs

Alexander B. Wilkinson, for the Defendants

Heard: July 21, 2017 at Sarnia

Before: Thomas R.S.J.

The Motion

[1] The defendants move pursuant to Rule 29 of the Rules of Civil Procedure for leave to issue a Third Party Claim against Richard Hill (“Hill”). The plaintiffs do not consent.

Background

[2] The following information is taken from the materials provided by both parties and does not appear to be in dispute.

[3] This action arises from Brooke Stratton’s (“Ms. Stratton”) slip and fall accident at the defendants’ gas station and convenience store on December 25, 2012. Ms. Stratton slipped on slush and/or ice on the parking lot. The property was owned and occupied by the defendants and is located in Sarnia.

[4] Ms. Stratton suffered injuries to her face, shoulder and back as a result of the slip and fall and related contact with portions of her own vehicle.

[5] At the time of the incident Ms. Stratton was with her daughters, who are also plaintiffs, and an adult male friend. There was another witness in the store who appears to confirm the condition of the parking lot. In addition, there were three employees of the defendants in the store.

[6] Ms. Stratton suffered fractured nasal bones and neck, right shoulder and low back injuries. The plaintiffs have provided the medical report of the physiatrist, Dr. Teasell, who examined Ms. Stratton in regard to her neck, shoulder and back injuries.

[7] Ms. Stratton is 42 years of age and a single mother and sole supporter of two young children. At the time of the incident, she was working full-time as a dental hygienist. She had held that job for 10 years. Immediately after the incident she was off work for eight months. It was the recommendation of Dr. Teasell in July, 2012 was that she reduce her work to three days per week to assist her with her pain management and that she should consider retiring from that employment at age 50.

[8] She is presently off work and it is her position that this is due to the ongoing pain from this incident.

[9] In the intervening years since the time of the incident, Ms. Stratton has received $50,000.00 in medical rehabilitation benefits, $13,385.71 in income replacement benefits and $885.60 in attendant care benefits. Her accident benefits have now been exhausted and she will need to personally pay for medications and treatment.

[10] The defendants were put on notice on January 11, 2013. The plaintiffs commenced this action on December 24, 2014 and served the Statement of Claim on February 19, 2015. The Statement of Defence was served on April 14, 2015; the Reply on April 23, 2015.

[11] At the examinations for discovery on November 13, 2015, the plaintiffs’ counsel learned for the first time about the existence of Mr. Hill. The best information seems to be that there was no written contract between Hill and the defendants. Hill would be called to plow the parking lot when the snow reached a certain level and be paid in cash. He had, in fact, attended earlier on the day of this incident.

[12] After the discovery, plaintiffs’ counsel received an undertaking that she would be advised within 60 days if the Third Party Claim was to be initiated.

[13] Including the examination for discovery on November 13, 2015, plaintiffs’ counsel asked the defendants eight times if they were intending on commencing a Third Party Claim against Hill. A request was made at the continuation of the discovery on June 13, 2016. Plaintiffs’ counsel sent letters on May 30, 2016, August 9, 2016, August 29, 2016, October 24, 2016 and November 15, 2016 demanding an answer to this specific undertaking.

[14] The plaintiffs set the action down for trial on March 7, 2016. It was at the judicial pre-trial of December 21, 2016 that the defendants’ counsel indicated an intention to issue the Third Party Claim. Plaintiffs’ counsel at that time advised that she would oppose the leave application as a result of the prejudice to her clients.

[15] Counsel for the plaintiffs confirmed her position by letter on January 10, 2017. On January 12, 2017, counsel for the defendants brought this motion and proposed it be argued on January 23, 2017 or two other dates at that time. Those dates were not available to plaintiffs’ counsel and a date in April, 2017 was arranged. The April date was adjourned at the request of the defendants due to problems in serving the proposed third party with this motion.

[16] On January 12, 2017, the defendants issued a Statement of Claim against Hill. He has not responded. The defendants have had no contact with either Hill or an insurer who has responded to the claim. It would seem no further efforts have been expended on that proceeding.

[17] The limitation period for the Third Party Claim against Hill expired on February 19, 2017.

[18] At the time of the judicial pre-trial, all counsel agreed to have the matter placed on the trial list for November 20, 2017. Unfortunately due to impending surgery for the proposed trial judge and the pressures of scheduled criminal matters, that civil trial list was cancelled. Over the objections of counsel for the defendants, I adjourned the matter for trial to the next available trial list commencing January 28, 2018.

[19] The trial as presently constituted will likely take about five trial days. The issue of liability remains in dispute.

[20] The matter came on for argument before me on July 21, 2017.

Analysis

[21] Rule 29.02 of the Rules of Civil Procedure governs the timing of the issuing of a third party claim and the test for leave. Rule 29.09 considers prejudice or delay to the plaintiff. The relevant provisions are set out below:

TIME FOR THIRD PARTY CLAIM

29.02 (1) Issuing - A third party claim (Form 29A) shall be issued within 10 days after the defendant delivers a statement of defence, or at any time before the defendant is noted in default. O. Reg. 351/94, s. 2; O. Reg. 55/12, s. 2.

(1.1) Exception, reply - A third party claim may be issued within 10 days after the plaintiff delivers a reply in the main action to the defendant’s statement of defence. O. Reg. 351/94, s. 2.

(1.2) Exceptions, consent and leave - A third party claim may be issued at any time with the plaintiff’s consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby. O. Reg. 351/94, s. 2.

PREJUDICE OR DELAY TO PLAINTIFF

29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.

[22] Counsel have proposed that I need to consider three issues regarding the leave requested:

(a) The limitation period;

(b) The existence of prejudice;

(c) The weighing of any prejudice against the potential of multiple proceedings.

(a) The Limitation Period

[23] There is no dispute that the defendants missed the 10 day period contemplated by Rule 29.02 (1). There is no dispute that the defendants missed the limitation period for the issuance of a third party claim as directed by Section 18(1) of the Limitations Act, 2002, S.O. 2002, c. 24. That section is set out below:

18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place.

[24] As previously mentioned that period expired on February 19, 2017.

[25] The defendants argue that I should grant leave in any event and allow them to address the limitation argument “down the road” if necessary. They remind me that they have issued a Statement of Claim in a separate action. It is their argument that they offered dates in January, 2017 to argue this matter but plaintiffs’ counsel was not available. They suggest the expiration of the limitation period is therefore not their fault.

[26] Plaintiffs’ counsel relies in part on the comments of Brown J. in Sandrabalan v. Toronto Transit Commission, 2009 CanLII 18298 (ON SC). In that case, the third party sought to dismiss the claim as being statute-barred. The defendants had written to the plaintiffs proposing that one of them add the third party to the action. They received no response but then waited two years before bringing the claim. Brown J., in dismissing the Third Party Claim, wrote the following comments at paras. 20 and 21:

[20] … As a result, the undisputed facts reveal that the Third Party Claim was issued after the expiry of the two-year limitation period, so that claim is statute-barred, and the third party’s motion succeeds.

[21] Of course, had the TTC moved for leave to issue a Third Party Claim soon after it became apparent that the plaintiff would not respond to its January 10, 2007 letter, this difficulty would not have arisen.

[27] With the history of this proceeding the defendants cannot rely upon proposed motion dates, all within 30 days of deciding they would attempt to issue the claim, as a defence to the limitation argument.

[28] The defendants were on notice of this claim within days of the incident in 2012. It was clear the plaintiff did not intend to bring Hill on as a defendant. That position seems quite reasonable considering the limited information provided regarding the business relationship between Hill and the defendants and the fact that the defendants did not disclose his existence until the discovery examination.

[29] It would seem that the defendants made a business decision to wait until after the judicial pre-trial to seek to issue the claim and after a trial date had been agreed upon.

[30] The defendants are the authors of their own misfortune.

(b) Prejudice

[31] The defendants suggest that Ms. Stratton has not been prejudiced beyond the potential delay of the trial. They remind me of the decision in Bell Canada v. Olympia & York Developments Ltd., [1988] O.J. No. 1501 (O.C.A.) where the Court of Appeal directed that absent prejudice to the plaintiff, delay in moving to add a Third Party would not, in itself, be fatal to granting leave, the rule being mandatory in its terms.

[32] The defendants point to the fact that since the incident the plaintiff has worked and has received accident benefits.

[33] They have provided Medeiros et al v. Dilworth, 2002 CanLII 49431 (ON SC), [2002] O.J. No. 1406 (Medeiros), where Chapnik J. states at para. 17:

The problem is that this is not a balancing matter and there is no evidence before the court that the plaintiff would suffer undue prejudice over and above the additional inconvenience and work that enures naturally when a third party is added.

[34] In West (Litigation guardian of) v. Goldie, 2014 ONSC 5872 (Goldie), MacDougall J. relied in part on Medeiros and granted leave to issue a third party claim in the face of a lengthy delay and catastrophic injuries to the plaintiff. He reasoned that the main action had moved along expeditiously and that with the separate action by the defendants against the third party there would likely be a motion to try them together in any event. In addition, he found that the plaintiff had a significant source of funds in that the accident benefit claim had been settled for $1.4 million dollars. He also found arguable merit in the claim for contribution. MacDougall J. found while there was some prejudice there was not “undue prejudice”.

[35] Finally, the defendants suggest that the plaintiffs’ evidence of prejudice is flawed since it comes to me as part of an affidavit sworn by a lawyer and not by Ms. Stratton herself.

[36] The plaintiffs rely upon the more recent decision of Price J. in Farrell v. Costco Wholesale, [2015] O.J. No. 7179 (Farrell). In Farrell, Price J. reviews the use of the term “undue prejudice” in Medeiros and Goldie. It is his view that “undue” was being used colloquially and not with the intention of raising the legal threshold (Farrell para. 24). I agree the prejudice must have been substantive enough to outweigh the concerns regarding the potential of multiple proceedings which will be discussed later and the mere concerns about delay.

[37] The plaintiffs also ask me to review Price J.’s comments in Farrell regarding the prejudice caused by delay where the claim relies on the recall of eye witnesses (Farrell paras. 30-33). In Farrell, there are references to the Supreme Court of Canada decision in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 (Rahey). At paras. 59 and 121, the Court states that prejudice may be inferred from the elapse of an unreasonable amount of time where the case may turn on witness testimony and that the accused’s defence may be placed in jeopardy as a result of that delay.

[38] The impact of time on the memories of important witnesses is not just a concern in criminal cases.

[39] Price J. goes on at paras. 39 and 40 in Farrell to consider the prejudice specific to the plaintiff much of which is present in this matter before me.

[40] In the matter of Ms. Stratton, she is a single mother supporting two children. She is presently off work. She continues to need treatment. She exhausted her accident benefits. This information comes to me from the affidavit filed and the medical report of Dr. Teasell. I am content that I can receive the evidence in this manner without drawing any adverse inferences. I am aware that no one has sought to cross-examine on the affidavits.

[41] If a Third Party Claim is issued and there is a responding insurer, there will undoubtedly be an application to adjourn the trial. Ms. Stratton would face a new examination for discovery which might be challenging to her memory and therefore the appearance of her credibility. The defendants will undoubtedly want to examine Hill. Further independent medicals may be requested.

[42] Liability remains an issue. The witnesses available to the plaintiffs are therefore important to the claim. The passage of time continues to erode their memories and creates further prejudice.

[43] The parties have a trial date in January, 2018.

[44] Unlike in Goldie, the plaintiff does not have $1.4 million dollars to draw upon during the adjournment although I clearly recognize that neither are her injuries catastrophic in nature. The prejudice that would be suffered by Ms. Stratton and her family with this claim hanging over their heads is not insignificant. The prejudice is far more than simply inconvenience caused by delay or the normal process of adding a party.

(c) Weighing

[45] As I have now found the existence of prejudice it is necessary that I weigh that prejudice to the plaintiffs as against the interest in avoiding the multiplicity of proceedings. Multiple proceedings of course are inconvenient and costly to the parties, consume scarce court resources and offer the potential of inconsistent verdicts.

[46] However when the relief sought from the Court, as in this case, would undoubtedly cause delay, the interest of timely justice as a broader concept cannot be ignored.

[47] Cumming J., in Wilson v. Servier Canada Inc., [2001] O.J. No. 4717, denied leave to issue a third party claim and commented as follows at para 23:

Our society's concept of justice dictates that fairness is inherently fundamental to our court processes. Timeliness in the determination of claims on their merits is critical to achieving fairness to the parties. Justice must be done and it must be seen to be done in a timely way and manner. It is prejudicial to plaintiffs to deny them fairness through further substantial delays by granting Servier’s motion. To grant Servier’s motion would inevitably have the result of delaying and frustrating a determination of the common issues on their merits. A basic objective of the judicial system is access to justice.

[48] In considering the weighing or balancing process required by this analysis, I choose to accept the argument of the plaintiffs at para. 34 of their factum. I believe it takes an accurate and realistic view of how this matter has proceeded. The prejudice to the plaintiffs significantly outweighs concerns about multiple proceedings due to the factors set out in para. 34 of the plaintiffs’ factum, which I have revised and updated for my purposes as follows:

• The facts underlying Mr. Hill’s alleged liability were available to the defendants from the time the fall occurred;
• It took the defendants four years from when they were notified of an intention to commence an action to decide that they wished to issue a third party claim;
• It took the defendants two years from the time the Claim was served to the time it decided it wished to pursue the third party claim;
• At the Examinations for Discovery on November 13, 2015, the defendants gave an undertaking to advise if a third party claim would be issued. After 8 requests to answer whether a third party claim would be issued, the defendants finally advised at the pre-trial that they would like to issue a third party claim;
• The defendants have failed to explain their failure to issue the third party claim within ten days following the delivery of the plaintiffs’ reply, or for its delay, thereafter, in applying for leave to issue the third party claim;
• The defendants will face a limitation period issue in issuing the third party claim as the limitation period for doing so has expired;
• No evidence of a contract between Mr. Hill and the defendants has been produced. There is no record or policy and procedure as it relates to the defendants calling or requiring Mr. Hill’s services on the day of the fall. As such, there is an absence of any discernable merit in a third party claim;
• Even if Mr. Hill is found liable to indemnify the defendants for Brooke’s loss, it is unlikely that a separate action by the defendants against Mr. Hill will result in a verdict that is inconsistent with the verdict as to the defendant’s liability reached in the primary action;
• While denying leave to issue a third party claim may result in a multiplicity of proceedings, responsibility for that situation must rest with the defendants for not having pursued their remedy earlier;
• If a third party claim were issued, Brooke would likely face a further examination for discovery years after the first, which could undermine her appearance of credibility;
• This action is in its final stages. Pleadings have closed, Examinations for Discovery have been completed, undertakings have been satisfied, the plaintiff has undergone several Independent Medical Examinations, the case has been set down for trial, a pre-trial has taken place, and trial date has been set. The only step left is the trial;
• The trial is scheduled to commence during the January 28, 2018 trial sittings;
• If a third party claim is issued, the action will most certainly not be tried at the trial sittings scheduled and will be delayed at least a year;
• Ms. Stratton continues to be adversely affected by her injuries. She is presently not working. She has no further Accident Benefits funding, and is incurring expenses for treatment and medication out of her pocket.

Conclusion

[49] As a result of the reasons set out above, I decline to grant leave to issue the Third Party Claim and dismiss the defendants’ motion.

Costs

[50] At the time of the argument, counsel each produced costs outlines. They noted that their respective claims were very close in amount and indicated there was no need to make further submissions. I am appreciative of that approach.

[51] The plaintiffs will have their partial indemnity costs consistent with their outline provided. I have reviewed the details of the outline. I am content that it satisfies the factors contained in Rule 57.01 and that the amount sought is reasonable and within the expectations of the defendants. The plaintiffs will have their costs fixed at $5,703.14.

“B. G. Thomas R.S.J.”

B. G. Thomas R.S.J.

Released: July 28, 2017