COURT FILE NO.: CV-16-565509

MOTION HEARD: 10 August 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sundus Ali, Plaintiff

AND:

Patricia B. Rodriguez-Frassetto and Jouma Doulah, Defendants

BEFORE: Master Jolley

COUNSEL: Danny Tran, Counsel for the Moving Party Plaintiff

Kimberly Newton, Counsel for the Responding Party and Proposed Defendant Jimmy Barahona

HEARD: 10 August 2018

REASONS FOR DECISION

[1] The plaintiff brings this motion to add Jimmy Barahona as a defendant to this action. Mr. Barahona opposes the relief sought and argues that the limitation period to add him has expired.

[2] For the reasons below, the plaintiff’s motion is granted.

[3] The plaintiff was involved in a motor vehicle accident in January 2015 when her vehicle was struck from behind by the vehicle owned and operated by the defendants. Plaintiff’s counsel requested that Toronto Police Service deliver its “complete file relating to this motor vehicle accident, including the motor vehicle accident report, notes made by the investigating officers, witness statements, reconstruction reports, photographs, and all other documents in your possession or control.” In response, they received only the motor vehicle accident report and it showed only two vehicles involved in the accident, that of the plaintiff and the defendants. The report listed five involved persons, four from the defendants’ vehicle and the plaintiff. There was no indication that a third vehicle was involved in the accident. Neither did the Toronto Police Service motor vehicle accident report – driver copy disclose a third vehicle. On that basis, a statement of claim was issued on 7 December 2016 naming as defendants the owner and operator of the vehicle that struck the plaintiff’s vehicle.

[4] On 13 March 2018 counsel for the defendants wrote to counsel for the plaintiff to advise that plaintiff’s counsel may need to bring a motion to amend the claim as it was his understanding that the defendants were first struck by Mr. Barahona, who was charged as a result of the accident. Defendants’ counsel stated: “Barahona struck my client’s vehicle, which caused it to strike your client. I have attached the MVA Report Driver copy. Unfortunately, that is the only document I have. It appears that the police officer completed 2 reports for some reason.” The plaintiff was not given a copy of the motor vehicle accident report involving the defendants and Mr. Barahona.

[5] Not only was there a separate motor vehicle accident report, there was a separate action commenced by a passenger in the Rodriguez-Frassetto vehicle against Ms. Rodriguez-Frassetto, Mr. Doulah and Mr. Barahona.

[6] The plaintiff takes the position that she did not discover her claim against Mr. Barahona until this correspondence was received in March 2018 and could not reasonably have known of her claim against him before then.

[7] Mr. Barahona takes the position that, while plaintiff’s counsel may not have been advised of his involvement until March 2018, the plaintiff was well aware that he was involved in this accident at the time it occurred. Her failure to advise her lawyers or the lawyers’ failure to make fulsome inquiry of her as to the cause of the accident cannot be used to extend the limitation period.

[8] Mr. Barahona filed an affidavit in response to this motion in which he stated that on the day in question, he was travelling behind the defendants’ vehicle. He saw it rear-end the plaintiff’s vehicle and braked, but not in time to avoid rear-ending the defendants’ vehicle. He deposes that the plaintiff saw his distinctive car, which was then stopped. He further deposes that the plaintiff saw him again when all of their damaged cars were taken to a nearby parking lot. She saw him speak to the police officer present, although he and the plaintiff did not speak.

[9] Although the plaintiff failed to file an affidavit on this motion, which clearly would have been the appropriate route, I am not prepared to draw an adverse inference that she knew of the involvement of Mr. Barahona in the accident. In a case like this, the plaintiff should have filed an affidavit explaining why she was not aware that Mr. Barahona was involved in her car accident. This is particularly so where Mr. Barahona put the plaintiff’s knowledge of his involvement in issue.

[10] Reviewing Mr. Barahona’s evidence, I cannot conclude that the plaintiff would have known that he struck the defendants’ vehicle, causing it to strike her vehicle, as is alleged. I note that the plaintiff’s vehicle and the defendants’ vehicle were removed right away to a parking lot. Mr. Barahona’s vehicle was not brought to that parking lot for another hour, leaving perhaps a gap in the plaintiff’s understanding of Mr. Barahona’s role in the accident.

[11] I am not satisfied that the name of the tortfeasor and the essential facts that make up the cause of action against him were actually known to the plaintiff more than two years before this motion to amend (Wong v. Adler (2004) 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Master) at paragraph 45, affirmed (2004) 2004 CanLII 73251 (ON SCDC), 76 O.R. (3d) 237 (Div. Ct.). As noted in Wong, if the court determines there is an issue of fact or credibility on the discoverability allegation, the proposed defendant should be added with leave to plead a limitations defence.

[12] The plaintiff is granted leave to amend her statement of claim to add Jimmy Barahona as a defendant. Costs of the motion reserved to the trial judge. I have signed an order permitting this amendment and also dealing with the issue of substituted service of the claim upon the defendant Rodriguez-Frassetto, which was disposed of orally.

Master Jolley

Date: 17 August 2018