ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RYAN HENGEVELD, SUSAN HENGEVELD, MATTHEW HENGEVELD, a minor by his litigation guardian Susan Hengeveld, BENJAMIN HENGEVELD, a minor by his litigation guardian Susan Hengeveld, ERIN HENGEVELD, a minor by her litigation guardian Susan Hengeveld, ANDREW HENGEVELD, a minor by his litigation guardian Susan Hengeveld,
BERNARD HENGEVELD, and LUTSCHE BAKKER
Plaintiffs
– and –
HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO,
OWEN SOUND HIGHWAY MAINTENANCE LIMITED, PAUL DOIG, HURON PERTH HEALTHCARE ALLIANCE, and HYUNDAI AUTO CANADA CORP.
Defendants
Rasha M. El-Tawil, for the Plaintiffs
Shaun A. Hashim, for the Defendant Hyundai Auto Canada Corp and the proposed Defendant Hyundai Motor Company
Millie Katyal, for the proposed Defendant 982875 Ontario Inc., operating as Kitchener Hyundai
HEARD: August 25, 2017
RULING ON MOTION
HEBNER J.
1There are three motions before the court. They are:
The plaintiffs brought a motion for an order adding Hyundai Motor Company (“HMC”) and 982875 Ontario Inc. as defendants to the action and an order amending the statement of claim to include allegations of negligence against these two proposed defendants (“motion #1”).
The defendant, Hyundai Canada Corp. (“Hyundai Canada”) brought a motion for an order striking the affidavit of Marcia Fraser, sworn June 26, 2017 or, in the alternative, an order that Ms. Fraser submit to cross-examination on her affidavit and an order amending the timetable to adjourn the return of the plaintiff’s motion (“motion #2”).
The plaintiffs brought a motion for an order granting leave to file the affidavit of James D. Virtue, sworn August 17, 2017 (“motion #3”).
2In motion #1, the plaintiffs’ motion record, dated January 9, 2017, contained a notice of motion and affidavit of Marcia Fraser, sworn January 9, 2017, a law clerk with plaintiffs’ counsel. An amended affidavit of Marcia Fraser was sworn on January 24, 2017, simply attaching an exhibit that had mistakenly not been attached to her original affidavit. Following receipt of the plaintiffs’ motion record and amended affidavit, the responding parties chose not to file responding affidavits. A timetable was put in place for cross-examination on the affidavit of Marcia Fraser, compliance with undertakings, and service and filing of facta and books of authorities. The affidavit of Marcia Fraser, sworn June 26, 2017, and the affidavit of James D. Virtue, sworn August 17, 2017, were served after the agreed-upon timelines for filing affidavit material had expired. Hence motions #2 and #3 were brought.
3For reasons that follow, I am granting the plaintiffs’ motion to amend the statement of claim (motion #1) without consideration of the two objectionable affidavits. Accordingly, it is not necessary to consider motions #2 and #3.
Background Facts
Background Facts
4This case is about a motor vehicle accident that took place on January 27, 2014. Ryan Hengeveld (“Ryan”) was the driver of a 2004 Hyundai Elantra motor vehicle southbound on Highway 23 near Line 88 in North Perth, County of Perth. The weather was poor and, according to the statement of claim, the plaintiffs allege the highway was snow and ice covered. Ryan lost control of his motor vehicle and crossed the center line. His motor vehicle was hit on the driver’s side by the oncoming northbound GMC Terrain vehicle driven by the defendant, Paul Doig.
5Ryan sustained serious personal injuries as a result of the collision, including a serious brain injury. He was in a coma for several weeks. He was an in-patient at various hospitals until January 9, 2015. He has been relegated to a wheelchair and has little use of his legs. The other plaintiffs are all family members of Ryan and claim damages for loss of guidance, care and companionship.
6Motion #1, originally returnable January 31, 2017, included an affidavit of Marcia Fraser, a law clerk with plaintiffs’ counsel. The following assertions appear in that affidavit:
Ryan’s motor vehicle did not have functioning side impact airbags. Ryan claims that his injuries were exacerbated as a result.
Side impact airbags were mandatory on every 2004 Hyundai Elantra sold in the United States of America. Apparently, they were not mandatory on 2004 Hyundai Elantras sold in Canada.
On June 25, 2014, the vehicle in question was sold for scrap by the insurer. The sale was completed without notification to the plaintiffs and prior to inspection or testing of the vehicle. The plaintiffs discovered that the vehicle was destroyed on November 5, 2015.
The statement of claim was issued January 6, 2016. The statement of defence and cross-claim of Hyundai Canada is dated June 2, 2016. It includes the following paragraphs:
“4. HACC [Hyundai Canada] specifically denies that it designed or manufactured the 2004 Hyundai Elantra motor vehicle, bearing VIN KMHDN45D64U806344, which was owned and operated by the plaintiff, Ryan Hengeveld, (the “Vehicle”) and allegedly involved in a motor vehicle accident on January 27, 2014 (the “Accident”), or that it sold the Vehicle to Mr. Hengeveld. The Vehicle was manufactured by Hyundai Motor Company in the Republic of Korea.”
“8. The Vehicle was not equipped with side airbags.”
The plaintiffs claim that they did not discover that the vehicle was not equipped with side impact airbags until June 15, 2016, when Hyundai Canada served its statement of defence and cross-claim on the plaintiffs.
Hyundai Canada is a wholly-owned subsidiary of the proposed defendant HMC. HMC is the Korea-based corporation that manufactures Hyundai Elantras for the Canadian and American markets.
HMC manufactured the 2004 Hyundai Elantra and distributed marketing materials relating to the side impact safety rating of the vehicle in question. Attached to the affidavit were the promotional materials of the 2004 Hyundai Elantra from the 2004 HMC annual report. The materials were based on a 2004 Hyundai Elantra fitted with side impact airbags. There were no statements made in the materials indicating that Canadian models did not have side impact airbags and that they, therefore, had different safety ratings. The material includes the following statement:
“The Hyundai Elantra received the highest possible safety rating from the National Highway Traffic and Safety Administration (NHTSA). In front crash tests conducted under the NHTSA’s New Car Assessment Program the Elantra four and five-door sedans earned the maximum five-star score for driver safety while also
earning the five-star rating for front seat safety in the side impact test.”
The material includes separate pages geared towards different geographical centres such as “Europe” and “North America”. On a review of the North American page, there is no differentiation between the United States and Canada.
The plaintiffs claim that they were unaware of HMC’s involvement until Hyundai Canada delivered its statement of defence.
The proposed defendant, 982875 Ontario Inc., is the dealer that sold the vehicle in question to Ryan.
The plaintiffs claim that Ryan, when purchasing the vehicle, would have relied upon the marketing materials described above.
7The plaintiffs’ proposed statement of claim sets out the foregoing assertions and claims that HMC designed the 2004 Elantra sold to Ryan in a defective and unsafe condition in that it did not have side impact airbags. The statement of claim further asserts that HMC failed to warn potential customers that the vehicle did not contain side impact airbags.
8Ms. Fraser was cross-examined on her affidavit. She gave the following evidence and/or the following was provided by way of an undertaking:
Ryan was not in a coma as of September 16, 2014.
The plaintiffs’ lawyers were retained within days of the accident and sent a notice letter dated January 31, 2014 to the Ministry of Transportation and Perth County.
Between February 4, 2014 and March 10, 2014, Ms. Fraser exchanged e-mails with the plaintiffs’ automobile insurer requesting that they preserve the 2014 Elantra for an indefinite period of time. There is no evidence of any other communication until October 23, 2015, at which time the insured advised that the vehicle had been sold for scrap.
On October 21, 2014, plaintiffs’ counsel received a collision reconstruction report prepared by the Ontario Provincial Police (the “TTCI report”). The report discloses:
a) the accident involved Ryan’s Elantra and a black GMC Terrain vehicle;
b) the GMC Terrain impacted the Elantra on the driver’s side;
c) The Elantra sustained significant side damage including the “...driver’s side of the Hyundai was destroyed... The roofline on the driver’s side was driven down and inward causing the roof to buckle upwards... The extricated driver’s door was dented and pushed upward... The ‘A’ pillar on the driver’s side was buckled downward...[and] the frame on the driver’s side was driven downward and was pushed into the interior of the vehicle”;
d) the “Hyundai was equipped with frontal airbags that did not deploy”; and
e) the “GMC was equipped with frontal and side curtain airbags. Both the side curtain airbags and the driver’s wheel bag were all deployed”.
- Ms. Fraser confirmed that Ryan had vehicle service records, manuals and warranty information relating to the Elantra, which he provided to his counsel. Included in the package was a 2004 owner’s manual that identified HMC as the manufacturer of the vehicle.
Position of the Responding Parties
Position of the Responding Parties
9The responding parties point out that the motor vehicle accident occurred on January 27, 2014. Therefore, pursuant to s. 5(2) of the Limitations Act, 2002, S.O. 2002, c.24, Schedule B, unless the plaintiffs can prove otherwise, the date on which the plaintiffs’ claim was statute barred was January 27, 2016. The motion to add the proposed defendants was served almost a year later on January 10, 2017.
10Where there is an apparent expiry of the limitation period, the test to add new parties or assert a new cause of action is different from a motion brought within the limitation period. In that case, the mandatory order in rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, does not apply and the matter is one of discretion for the court. In exercising the discretion, a motions judge should “consider the evidentiary record” to determine whether there is a “live issue of fact or credibility” about the commencement of the limitation period.
11The responding parties request that I give minimal weight to the affidavit of the law clerk sworn in support of the motion. They submit that insufficient evidence was filed to substantiate an allegation that, due to Ryan’s brain injury, he did not have legal capacity immediately following the accident and so the limitation period must be presumed to have commenced on the date of the accident. They further submit that insufficient evidence was filed to substantiate that the plaintiffs exercised due diligence in order to discover the appropriate parties and causes of action prior to the expiry of the limitation period. The responding parties submit that the court cannot rely on a law clerk’s affidavit on the issues of Ryan’s capacity and discoverability. Accordingly, the plaintiffs have not met their burden and the motion ought to be dismissed.
Position of the Plaintiffs
Position of the Plaintiffs
12The plaintiffs take the position that the amendments of the statement of claim ought to be allowed. The plaintiffs point out that this is not a summary judgment motion; rather it is a motion to deal with pleadings and parties. The date of commencement of the limitation period is not clear, given Ryan’s serious brain injury. On the issue of discoverability, the plaintiffs submit that the materials demonstrate a sufficient level of due diligence to satisfy the burden on a motion to amend a pleading.
Analysis
13Section 21(1) of the Limitations Act, 2002, chapter 24, provides:
21(1) If a limitation period in respect of a claim against a person has expired, a claim shall not be pursued by adding the person as a party to any existing proceeding.
14Accordingly, the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing claim (Arcari v. Dawson, 2016 ONCA 715, at para. 7). The question for this court then is whether there is a clear expiration of the limitation period. That question requires a consideration of the following questions:
Is the date of commencement of the limitation period clear?
Does the discoverability principle apply in this case?
15In Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648, Lang J. provided guidance on a motion to add parties after the limitation period as follows:
[A] rule 5.04(2) motion to add parties and, in this case, to add parties after the apparent expiration of the limitation period, is discretionary. While the threshold on such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.
16Lang J. quoted with approval the decision of Master Dash in Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460, at para. 45, aff’d (Ont. Div. Ct.):
What is the approach a judge or master should take on a motion to add a defendant where the plaintiff wishes to plead that the limitation period has not yet expired because she did not know of and could not with due diligence have discovered the existence of the defendant? In my view, as is clearly implied in Zapfe, the motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation, which is a constituent element of the claim. If the court determines that there is such issue, the defendant should be added with leave to plead a limitation defence. If there is no such issue, as for example where the evidence before the motions court clearly indicates that the name of the tortfeasor and the essential facts that make up the cause of action against such tortfeasor, were actually known to the plaintiff or her solicitor more than two years before the motion to amend, the motion should be refused. If the issue is due diligence rather than actual knowledge, this is much more likely to involve issues of credibility requiring a trial or summary judgment motion, provided of course that the plaintiff gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence. That is not to say that such motion could never be denied if the evidence is clear and uncontradicted that the plaintiff could have obtained the requisite information with due diligence such that there is no issue of fact or credibility.
17In Fanshawe College v. Sony Optiarc, 2014 ONSC 2856, Rady J. dealt with a motion by the plaintiff to amend a pleading in a proposed price-fixing conspiracy case, to add new parties as defendants. She identified the principles outlined above. At para. 37, she noted that “First, it must be kept in mind that this is a pleadings motion and not a motion for summary judgment. The evidentiary threshold is lower as will be discussed below.” She relied on the additional comments of Master Dash in Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, where he noted that “It will be rare that the applicability of the discoverability principle based on due diligence will be determined on a motion to add a party.” In the result, Rady J. found, at para. 47:
I am unable to conclude that the evidence is “clear and uncontradicted” that the plaintiff could have discovered the identities of the proposed defendants earlier than they did. Put another way, this is a “live issue of fact”.
18The task for this court then becomes the application of these principles to the two questions posed above.
Date of Commencement of the Limitation Period
Date of Commencement of the Limitation Period
19The Limitations Act, s. 7, provides as follows:
7(1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.
20In the statement of claim, the plaintiffs plead that Ryan suffered a “severe traumatic brain injury”. The plaintiffs plead that Ryan “has been required to undergo numerous medical treatments as a result of the injuries sustained in the motor vehicle accident. He has suffered irrevocable damage to his vision, speech, language and cognitive functioning...” In the affidavit of Marcia Fraser, she deposes that Ryan was an in-patient at various hospitals for almost a year, until January 9, 2015. She deposes that he suffered from “a serious brain injury”.
21Based on that evidence, Ryan was not capable of commencing a proceeding immediately after the accident. When did he become capable? The factors to be considered in determining whether a party is capable are set out in the case of Huang v. Braga, 2016 ONSC 6306 by Archibald J., as follows:
a) a person’s ability to know or understand the minimum choices or decisions required to make them;
b) an appreciation of the consequences and effects of his or her choices or decisions;
c) an appreciation of the nature of the proceedings;
d) a person’s ability to choose and keep counsel;
e) a person’s ability to represent him or herself;
f) a person’s ability to distinguish between relevant and irrelevant issues; and,
g) a person’s mistaken beliefs regarding the law or court procedures.
22It is impossible to determine, based on Ms. Fraser’s evidence alone, when Ryan became capable. The responding parties submit that medical evidence ought to have been proffered by the plaintiff for review by the court in determining the date that Ryan became capable and, thus, the date of commencement of the limitation period. The responding parties submit that that evidence is not contained in the affidavit of Ms. Fraser. Instead, it is contained in the affidavit of Mr. Virtue sworn August 17, 2017, which cannot be considered as it was served subsequent to the cross-examination of Ms. Fraser and outside of the agreed-upon timelines for the hearing of the motion.
23In my view, at this stage of the proceedings, and on this type of a motion, the plaintiffs are not required to prove the date of commencement of the limitation period in order to rebut the presumption that it commences on the date of the accident. They simply have to provide sufficient evidence to prove that the issue is a live issue. In my view, they have satisfied that low threshold.
Discoverability
Discoverability
24Section 5 of the Limitations Act, provides as follows:
(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).
25The plaintiffs submit that they did not know that HMC manufactured Ryan’s vehicle until they received the pleading of Hyundai Canada. The plaintiffs submit that they did not know, and could not have known, that Ryan’s motor vehicle did not have side impact airbags until they received the pleading of Hyundai Canada. The responding parties submit that the plaintiffs did not use due diligence in that they failed to pursue, in a timely fashion, a request to examine the motor vehicle. They also submit that the TTCI report clearly provides information that Ryan’s motor vehicle was not equipped with side impact airbags. They further submit that the owner’s manual clearly indicates that HMC and not Hyundai Canada manufactured Ryan’s motor vehicle.
26The issue of discoverability raises a number of questions. Does the plaintiffs delay in requesting access to the motor vehicle to conduct an examination constitute lack of due diligence? Should the plaintiff have concluded, based on the TTCI report that Ryan’s motor vehicle was not equipped with side airbags? Should the plaintiffs have done more to determine the actual corporate entity that manufactured Ryan’s motor vehicle? Should the plaintiffs have done more to discover that Ryan’s 2004 Elantra did not have side impact airbags when identical vehicles shipped to the United States did? In my view, the answers to these questions, and others posed by the discoverability principle, cannot be accurately discerned on a pleadings motion. The exploration of these issues requires at least a summary judgment motion with a better evidentiary record.
Disposition
Disposition
27I am unable to determine the date of commencement of the limitation period due to Ryan’s injuries. In addition, I am unable to conclude that the evidence is clear and uncontradicted that the plaintiffs could have discovered the cause of action they wish to now plead against the proposed defendants earlier than they did. These are live issues that will need to be further explored in this action.
28There is no prejudice to the proposed defendants by the proposed amendment. They may plead a limitation defence when they deliver their statement of defence.
29For the foregoing reasons, leave is granted to the plaintiffs to amend the statement of claim in the form attached to the supplementary notice of motion as schedule ‘A’.
30If the parties are unable to agree on costs, they may provide brief written submissions, to include a costs outline, according to the following timetable:
The plaintiffs may provide submissions within 20 days;
The defendants and the proposed defendants may provide submissions within 20 days thereafter;
The plaintiffs may provide reply submissions within 10 days thereafter.
“original signed and released by Hebner J.”
Pamela L. Hebner
Justice
Released: October 25, 2017
CITATION: Hengeveld v. Ontario (Transportation), 2017 ONSC 6300
COURT FILE NO.: 21/16 (London)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RYAN HENGEVELD, SUSAN HENGEVELD, MATTHEW HENGEVELD, a minor by his litigation guardian Susan Hengeveld, BENJAMIN HENGEVELD, a minor by his litigation guardian Susan Hengeveld, ERIN HENGEVELD, a minor by her litigation guardian Susan Hengeveld, ANDREW HENGEVELD, a minor by his litigation guardian Susan Hengeveld,
BERNARD HENGEVELD, and LUTSCHE BAKKER
Plaintiffs
– and –
HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, represented by the MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO, OWEN SOUND HIGHWAY MAINTENANCE LIMITED, PAUL DOIG, HURON PERTH HEALTHCARE ALLIANCE, and HYUNDAI AUTO CANADA CORP.
Defendants
REASONS FOR JUDGMENT
Pamela L. Hebner
Justice
Released: October 25, 2017
