Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTINA HAROLD, Plaintiff
AND:
KEITH FRANCIS QUIGLEY and UNIFUND ASSURANCE COMPANY, Defendants
BEFORE: The Honourable Justice D.A. Broad
COUNSEL: Alexandra Victoros, for the Plaintiff
Marie Sydney, for the Third Parties/Proposed Added Defendants HMTQ in Right of the Province of Ontario Represented by the Ministry of Transportation for the Province of Ontario and Carillion Canada Inc.
HEARD: November 20, 2017
ENDORSEMENT
1The Plaintiff moves for leave to amend her Statement of Claim to add the Third Parties HMTQ in Right of the Province of Ontario Represented by the Ministry of Transportation for the Province of Ontario (the “Crown”) and Carillion Canada Inc. (“Carillion”) as defendants to the main action after the presumptive expiry of the limitation period. The Crown and Carillion oppose the motion on the basis that the plaintiff has presented insufficient evidence to rebut the presumption that she discovered her claim against them, on the date of the accident, being January 24, 2014, or at the latest, on February 27, 2014. In the alternative, the Crown takes the position that the motion should be dismissed as against it because the plaintiff has not provided the required timely statutory notice pursuant to s. 33(4) of the Public Transportation and Highway Improvement Act, R.S.O. 1990 c. P. 50 (“PTHIP”), has not provided a reasonable explanation for not doing so, and the late notice is prejudicial to the Crown.
2The defendants Keith Francis Quigley (Quigley”) and Unifund Assurance Company (“Unifund”) take no position with respect to the motion.
Brief Background
3The action arises from a single vehicle accident in which the plaintiff was a front seat passenger in a pickup truck owned and driven by her then-husband Quigley on Highway 11 in Armour Township in the Province of Ontario. Quigley lost control of his vehicle, after hitting an icy spot, which rolled, slid into the median and on impact became airborne rolling to a stop in an upright position. The collision resulted in a serious injuries to the plaintiff as well as extensive property damage.
4The plaintiff applied for statutory accident benefits to Unifund on or about February 27, 2014. In her application she described how the accident occurred by stating “hit black ice on Highway 11, truck rolled numerous times in centre median.”
5The plaintiff retained the Dietrich Law Firm as her counsel on October 17, 2014. The plaintiff’s counsel received the police Motor Vehicle Accident Report (the “MVAR”) on January 9, 2015 which disclosed, inter alia, that the pickup truck driven by Quigley was travelling at 100 km/h, that the speed was too fast for the conditions described as “snow and strong winds with ice on the road,” and that the pickup was proceeding northbound when it hit an icy spot, left the roadway into the median, flipped, became airborne and rolled to a stop in an upright position.
6The Statement of Claim was issued on November 9, 2015. Counsel for Quigley served his Statement of Defence on January 5, 2016 which made no mention of any responsibility for the accident on the part of the Crown or its road maintenance contractor Carillion. Quigley issued a Third Party Claim on January 11, 2016 claiming contribution and indemnity against the Crown and Carillion under the Negligence Act, common law and equity in respect of any amounts for which Quigley may be found liable to the plaintiff. The plaintiff’s counsel received the Third Party Defence of the Crown and Carillion on February 3, 2016 and a copy of the Third Party Claim on February 4, 2016.
7The Statement of Defence of the Crown and Carillion to the main action was served on the plaintiff’s counsel on May 6, 2016.
8On September 19, 2016 counsel for the plaintiff wrote to counsel for Quigley and for the Crown and Carillion, forwarding a draft amended Statement of Claim adding the Crown and Carillion as defendants to the main action, seeking their consent to the amendment.
9On September 27, 2000 counsel for the Crown and Carillion responded by stating that they would not consent to the amendment to add them as defendants. On October 12, 2016 counsel for Quigley advised that he would consent to the amendment.
10On November 4, 2016 counsel for the Crown and Carillion wrote to the plaintiff’s counsel listing various documents that they were willing to provide and on November 8 and 21, 2016 plaintiff’s counsel wrote to counsel for the Crown and Carillion requesting copies of the listed documents in order to allow them to determine whether to proceed with a motion to add the Crown and Carillion as defendants. The documents were provided to plaintiff’s counsel on November 21, 2016.
11The plaintiff’s motion to add the Crown and Carillion as defendants was served on January 16, 2017.
Guiding Principles
12Rule 26.01 of the Rules of Civil Procedure provides that a party shall be permitted to amend its pleading at any stage of the proceeding unless prejudice would result that cannot be compensated for by costs or an adjournment. Pursuant to Rule 5.04(2) the court may add, delete or substitute a party on such terms as are just unless prejudice of that nature would result.
13The Court of Appeal has held that the passing of a limitation period is fatal to a motion under Rule 5.04(2) (see Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 (C.A.) at paras. 23 and 25 and Boychev (Litigation Guardian of) v. Alves, 2012 ONSC 997 (S.C.J.) at para. 13). Section 21(1) of the Limitations Act, 2002 S.O. 2002, c. 24, Sched. B, s.4, specifies 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.
14Section 4 of the Limitations Act, 2002 provides that, unless the 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.
15The principles of discoverability are set forth in section 5 as follows:
5(1) Discovery
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).
5(2) Presumption
A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
16The 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 or her knowledge within the requisite time period prior the date that he or she issued the Statement of Claim (see MacPherson v. Samuel 2017 ONSC 2024 (S.C.J.) at para. 18. The moving party seeking to add a party after the initial two-year limitation period must have made reasonable efforts to discover the identity of all responsible parties and to disclose the details of those efforts in a supporting affidavit. A consideration of due diligence by the moving party is central to any motion to add a party after the expiration of the limitation period (see Diotte v. Hillan [2010] O.J. No. 4795 (Master) at para. 38 and MacPherson at para. 19).
Analysis
17There is nothing in the motion material which would suggest that the plaintiff’s abilities and circumstances affected her ability to investigate and understand the facts upon which the claim might be based.
18The affidavit of George B. Dietrich, the managing lawyer at the Dietrich Law Office, did not disclose any steps taken by the plaintiff or her lawyers to discover the identity of all responsible parties within the two-year limitation period following the accident other than to obtain the MVAR. The plaintiff argues that nothing further was required in the exercise of due diligence. Mr. Dietrich stated that his firm relied upon the MVAR which reported that the defendant Quigley hit an icy spot, left the road into the median and flipped over and that he was driving too fast for the conditions. No enquiries were initiated on behalf of the plaintiff respecting the nature and extent of the winter road maintenance carried out by the Crown and Carillion in the period leading up to the accident.
19The plaintiff relies upon the Court of Appeal decision in Lingard v. Milne-McIssac (2015), 2015 ONCA 213, 125 O.R. (3d) 118 (C.A.) for the proposition that “reliance on the information contained in a motor vehicle accident report is reasonable and sufficient and constitutes due diligence.” She also points to the case of Todhunter v. Owles, 2015 ONSC 5656 (S.C.J.) in which Tausendfreund, J. referred to Linguard and rejected the proposition that “each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants to address the standard of care regarding winter maintenance.”
20The Crown and Carillion argue that the plaintiff’s motion material does not contain evidence of any due diligence to displace the presumption in s. 5(2) of the Limitations Act, 2002. They say that certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement for discoverability, citing the case of Kowal v. Shyiak, 2012 ONCA 512 (C.A.) at para. 18-19, and that neither is knowledge of the standard of care or whether conduct fell below it, citing Cassidy v. Belleville (Police Service), 2015 ONCA 794 (C.A.) at para. 13.
21In my view the Lingard and Todhunter decisions are not determinative of the question as to whether the plaintiff has provided a reasonable explanation as to why information was not obtainable with respect to the possible claims against the Crown and Carillion within the limitation period. The Court of Appeal in Pepper v. Zellers Inc. 2006 42355 (ON CA), [2006] O.J. No. 5042 (C.A.) at para. 14 confirmed that a motion under rule 5.04(2) to add parties after the apparent expiration of a limitation period is discretionary and involves a fact-based inquiry. The court observed that, while the threshold of 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.
22Lingard dealt with information set forth on a MVAR with respect to insurance coverage of the defendant driver, holding that it was reasonable for the plaintiff to assume that the police officer who completed the report asked the defendant for proof of insurance and that the plaintiff was justified in relying upon the motor vehicle accident report for that information.
23In the present case, there is nothing to suggest that the police officer who completed the MVAR conducted an investigation into whether the Ministry of Transportation and its contractor had maintained and kept the highway in repair, nor that the plaintiff was entitled to assume that the police officer had done so. Although the MVAC identified that the road was icy, it did not comment on whether the icy condition was connected to a failure of the Ministry and its contractor to keep the highway in a reasonable state of repair.
24Teusendfreund, J. in Todhunter was considering a motion for leave to appeal to the Divisional Court from a decision of Tranmer, J. to grant leave to the plaintiff to amend to add two municipalities as defendants. Tranmer, J. found that the plaintiff had demonstrated due diligence in determining the parties liable for the accident by obtaining the MVAR, by moving to discovery and in bringing the motion shortly thereafter. He found that the MVAR did not suggest negligence on the part of either municipality with regard to road maintenance and it was not until the defendant’s examination for discovery that any issue with respect to the existence of black ice was identified.
25As indicated above, Teusendfreund, J. rejected the proposition that each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants. However, he did not hold that plaintiffs should be relieved in all circumstances from any obligation to carry out due diligence on whether the relevant authority had failed to maintain and keep the subject highway or road in repair, particularly when she or he is in possession of information that such may be the case.
26In the present case the MVAR noted that the road was icy. The plaintiff has led no evidence that, armed with this information, she took any steps to attempt to ascertain whether the icy condition may have been a result of a failure of the authority having responsibility to maintain and repair the highway to the requisite standard. As indicated by the Court of Appeal in Kowal at para. 18, certainty of a party’s responsibility for an act or omission that caused or contributed to the loss is not a requirement and that it is enough to have prima facie grounds to infer that the acts or omissions were caused or contributed to by the party or parties identified. In Cassidy, at para. 13, the Court of Appeal held that discovery of sufficient material facts to trigger the commencement of a limitation period does not depend on precise knowledge of the applicable standard of care and whether the party’s conduct fell below it.
27In contrast the situation in Todhunter, the plaintiff in the present case had knowledge of the existence of an icy road surface which contributed to the accident. In her application for statutory accident benefits dated February 27, 2014, the plaintiff described the mechanism of the accident as involving the vehicle hitting black ice on Highway 11. As indicated above, the MVAR, received by the plaintiff’s counsel on January 9, 2015, had noted the presence of black ice on the highway.
28It is noteworthy that counsel for the plaintiff requested the consent of Crown and Carillion to the amendment to add them as defendants prior to receipt of any documentation or records from their counsel respecting maintenance of the highway during the relevant time period. No new facts were discovered by counsel for the plaintiff prior to making the determination to amend her pleading.
29In Wong v Adler, 2004 8228 (ON SC), [2004] O.J. No. 1575 (Master) aff’d 2004 73251 (ON SCDC), [2005] O.J. No. 1400 (Div. Ct.) Master Dash stated, at para. 45, that if the court determines that there is an issue of fact or credibility on a discoverability allegation the defendant should be added with leave to plead a limitations defence, whereas, if there is no such issue, the motion should be refused. In my view there is no issue of credibility on the question of whether simply obtaining the MVAR constituted sufficient due diligence on the part of the plaintiff in the circumstances. The court on this motion is in as good a position to determine that issue as would a judge on a summary judgment motion or at trial.
30In my view the plaintiff has failed to discharge the onus on her show, by evidence, that discoverability delayed the commencement of the running of the limitation period. Her motion to amend the Statement of Claim to add the Crown and Carillion as defendants must therefore be dismissed.
31In light of my finding with respect to the effect of the limitation period it is not necessary for me to deal with the Crown’s alternative argument for denial of the motion in respect of it based upon plaintiff’s failure to give notice in writing of her claim within 10 days under s. 33(4) of the PTHIP.
Costs
32The parties agreed that successful party or parties would be entitled to costs fixed in the sum of $15,000, inclusive of fees, disbursement and HST. It is therefore ordered that the plaintiff pay costs to the Crown and Carillion fixed in the sum of $15,000, within 30 days hereof.
D.A. Broad, J.
Date: November 22, 2017