Court File and Parties
Court File No.: CV-15-520236 Motion Heard: 2018-08-27 Reasons Released: 2018-09-25
Superior Court of Justice – Ontario
Between:
MARIA FRANCESCA GARISTO Plaintiff
- and-
CITY OF TORONTO Defendant
Before: Master D. E. Short
Counsel: Daniel Klein, for the Plaintiff James B. Tausendfreund, for the proposed Defendant Enbridge Gas Distribution Andrew Cottreau, for the proposed Defendant Rabcon Contractors Ltd.
Reasons Released: September 25, 2018
Reasons for Judgment
I. Background
[1] One of the more common contested motions dealt with in my court relates to issues arising from discovery of potential additional defendants, more than two years after an accident.
[2] Here, the Plaintiff asserts she tripped while crossing Bloor Street on April 17, 2013. For a number of reasons, she has had a succession of counsel.
[3] Only well after the two year anniversary of the accident, the plaintiff’s present counsel became aware of other potential defendants which are now sought to be added as defendants on this motion. Those potential defendants resist the motion.
II. Initial Steps
[4] Shortly after the accident, but more than 10 days after the incident, the plaintiff’s then counsel sent a letter to the Toronto City Clerk’s Office. It read:
I am writing to give notice to the City of Toronto, pursuant to the Municipal Act, of the claim which is to be brought against it in respect of damages and injuries suffered by my client Maria Francesca Garisto as a result of the existence of potholes and road cracks located at on the roadway known as Bloor Street West, nearest to Salem Avenue, in Toronto, Ontario.
As a result of the City's neglect, on April 17, 2013, while walking across Bloor Street West, my client sustained substantial personal injuries, the particulars of which will be set forth in a Statement of Claim.
Kindly fix the potholes and road cracks at the above-noted area before others are hurt.
Please feel free to contact me in order to discuss the settlement of this matter at your convenience.
[5] The City’s response acknowledged receipt but gave no indication whatsoever that others might bear responsibility for these alleged pavement problems.
[6] The defence filed on behalf of the City made no indication of any possible third party involvement. The proposed defendants now assert that there was inadequate “due diligence” in seeking their identity by counsel for the plaintiff, within the statutory two-year period.
[7] The plaintiff asserts that there was no indication from the Municipality that aroused any suspicion that others might have any involvement or potential responsibility for the alleged accident. Because of the statutory protection available after the initial 10 days, there may be additional significance to identify other potential defendants.
[8] The question before me, to a degree, is whether any further independent investigation is justified or required when dealing with a public authority that gives no indication in response to the initial notice, in its pleading, or at the discovery that others might be responsible for the condition of the pavement.
[9] In my view, applying proportionality to the specific circumstances of this case, I feel that no further “diligence” was required on the part of the plaintiff or her counsel. In reaching that conclusion I reflected upon the degree of assistance provided, by her municipality, to this resident in ascertaining potential defendants.
III. Productions Pleadings and Discovery of City Representative
[10] The City made no disclosure of any potentially relevant third parties in its Affidavit of Documents nor prior to, or at the examinations for discovery held in 2017.
[11] The discovery of City’s witness was held on February 23, 2017. The thrust and tone of the discovery is reflected in the extracts that follow, which would include statements by the city’s counsel:
Q. So, the City doesn't contract out the duties of inspecting and maintaining the roads -- or, let's break that down -- of inspecting and/or maintaining? A. Not to my knowledge.
Q. The area where my client fell was under the jurisdiction of the City of Toronto, obviously?
MS. CASHMAN: Yes, I think that's been admitted in our defence.
BY MS. SHLOMOVITZ:
Q. When you're patrolling the roads, what are some of the things you're looking for? A. Deficiencies.
Q. What would constitute a deficiency? A. Well, officially, anything defined by the Minimum Maintenance Standards.
Q. What's your understanding when it comes to potholes that the deficiency consists of? A. It should be at least eight centimetres deep. On this particular roadway, a surface area of 800 centimetres square.
Q. When the road was last inspected on April 16th, are there any records of what was found or wasn't found? ….
[12] Later in the examination, Plaintiff’s counsel addressed these questions:
BY MS. SHLOMOVITZ:
- Q. So, when a field investigator went out to the scene where my client has indicated she has fallen, no pothole was seen? The pothole that she was talking about was not found? A. Not to my knowledge. I didn't do the investigation. MS. SHLOMOVITZ: Counsel, I guess --- MS. CASHMAN: Well, like I said, when he went out to do his investigation on June 4th, he didn't identify a condition of disrepair. MS. SHLOMOVITZ: Okay, I'm not talking about a condition of disrepair. I'm talking about the subject pothole. MS. CASHMAN: Okay, that would be a about a condition of disrepair. So, he didn't see that subject pothole or any other condition of disrepair. MS. SHLOMOVITZ: Okay. Do you know when the last time was before this fall that that road was maintained, or that any construction was done on it? MS. CASHMAN: I have no idea. MS. SHLOMOVITZ: Can you let us know if, in the year before the fall, whether it had any maintenance done on it, and if so, who did that? MS. CASHMAN: I'll take that under advisement. I don't know the relevance of it. UNDER ADVISEMENT NO. 4 [my emphasis]
IV. Context
[13] A year following the discovery of the city’s witness, the questions taken “under advisement” were addressed by counsel in this manner, by letter dated June 6, 2018:
With respect to your office's enquiry regarding the remaining refusals, the City's position was that these questions were rightly refused. Nonetheless, in order to avoid the expense of proceeding with an unnecessary Motion, we will respond as follows:
With respect to your question regarding road maintenance in the year before the fall, we do not believe this question is relevant. The Plaintiff alleges that she fell as she was jaywalking near the intersection of Bloor St. W. and Salem Ave. and that she fell on the north side of the street. The Plaintiff has also produced a photo that purportedly shows the condition of the roadway at the time of the fall. It does not matter what work may or may not have been done in the year before the fall, what matters is what the condition of the roadway was on the date of the alleged fall, which evidence the photograph provides. The photographs also show the roadway on the north side of Bloor near Salem in a good state of repair. In any event, we can advise that there was no general road maintenance done in the year before the fall. As we previously advised, Rabcon was doing watermain work on Bloor Street in the year prior to the fall, which did involve road cuts in the road, but was not road maintenance work per se. We believe that the work that Rabcon did in the vicinity of Bloor St. W. and Salem Ave. was done in February 2013. We also understand that Enbridge was doing work on Bloor St. West before the loss, but you would have to enquire from Enbridge as to when their work was done as the City would have had no involvement in this. Based upon the evidence previously provided by your client referenced above, it does not appear, however, as though these cuts contributed to your client's fall. [my emphasis added]
[14] Perhaps somewhat surprisingly, given these statements, it now appears that in 2017, just before the two year anniversary of the service upon the City of the Statement of Claim (and thus the pending expiry of the two year limitation for a claim for contribution and indemnity contemplated by Section 18 of the Limitations Act, 2002) the City commenced a separate action against the two now proposed defendants Enbridge and Rabcon seeking contribution and indemnity with respect to the plaintiff’s claims; but, without providing any notice to the plaintiff.
[15] Perhaps significantly, the discovery of the City’s witness was held only 10 days after the Notice of Action was issued by the City against the now proposed defendants.
[16] The Defence filed on behalf of the proposed defendant Rabcon, to the City’s action provides this useful partial synopsis:
“3. On April 17, 2013, the Plaintiff, allegedly trips and falls on Bloor Street West near its intersection with Salem Avenue in Toronto, Ontario.
- On January 21, 2015, the Plaintiff commences Court File No. CV-15-520236 by way of Statement of Claim. The City of Toronto (the "City") is the sole Defendant.
II. THE COMPANION ACTION
On February 13, 2017, the City commences Court File No. CV-17-569581 (the "companion action") by way of Notice of Action as against the following: (a) Rabcon; (b) Enbridge Gas Distribution Inc. ("Enbridge"); and (c) John Doe Contractors.
On March 2, 2017, the City issues its Statement of Claim. It claims the following: (a) Contribution and indemnity with respect to any and all damages awarded as against the City in Court File No. 15-520236; and (b) Costs.
On April 17, 2018, Rabcon delivers its Notice of Intent to Defend.[my emphasis]
[17] To further place these dates in context, it appears from the Notice of Action on behalf of the City in the companion action indicates that the Notice was issued on the city’s behalf, by the same counsel appearing at the discovery of the plaintiff in the main action.
[18] Conversely in a normal action, claims over amongst the defendants would usually be addressed by third party or cross-claims. The City chose not to issue a third party claim in the present action but instead apparently elected to commence a separate action seeking contribution and indemnity from the now proposed defendants.
[19] Thus the claim for contribution by the city against the proposed defendants was issued on February 13, 2017 and the city’s witness was examined on February 23rd, 2017.
[20] The City took no position on the present motion seeking to add the proposed defendants.
[21] Here by virtue of the information now provided, the plaintiff has a real risk that if it is ultimately proven that the responsibility was entirely that of the proposed defendants, the city “will walk” and the plaintiff will have no recovery available.
[22] The City’s pleading in the 2017 action reads in part:
“6. Garisto has sued Toronto in the Claim alleging negligence on the part of Toronto with respect to the condition of the roadway. The particulars alleging the negligence are set out in paragraph 11 of Garisto' s Claim.
In its Statement of Defence, Toronto has denied the allegations· in Garisto's Claim, .inc1uding the allegation that· Garisto's fall, if any, was caused or contributed to by any negligence or breach of duty on the part of Toronto. Toronto further pleads that, at all material times, it met its obligation under the City of Toronto Act to keep the roadway in a reasonable state of repair.
Toronto states that, to the extent that there was a condition of disrepair in the roadway which caused or contributed to the Plaintiff fall, such condition was caused by· the work . undertaken by the Defendants Enbridge Gas Distribution, Rabcon ·Contractors Ltd. and John Doe Contractors.
Toronto further pleads and relies upon the provisions of the Negligence Act, R.S.O. 1990, C.N.1.
Toronto proposes that this claim be tried in Toronto at the same time as the Garisto Action. [my emphasis]
[23] I return to the conclusion of the city’s counsel’s communication regarding the matters taken under advisement, which read “Based upon the evidence previously provided by your client referenced above, it does not appear, however, as though these cuts contributed to your client's fall.”
[24] As noted above, the 2018 response to the matters taken under advisement in 2017, without any reference to the then existing action by the city for contribution leads me to the conclusion that no “further diligence” would have been of any practical use to this plaintiff.
V. Case Law Considered
[25] A number of cases were put before me by both counsel. What is clear is that the determination of cases such as this, turn on the specific facts of each case. The resisting parties rely upon Higgins v. Barrie (City), 2011 ONSC 2233, as authority for the proposition that if the plaintiff cannot demonstrate “on a generous reading” they have taken steps which amount to “due diligence”, the motion will be denied. It is asserted that in this case, if nothing was done to investigate other potential parties, beyond notifying the City of the accident, then the motion needs to be denied.
[26] Applying proportionality, I feel that, taking into account the approach of the city, the plaintiff ought not to be denied her “day in court” with all the potential defendants present. I come to this conclusion having considered cases on both sides of the spectrum.
[27] In Higgins, Justice DiTomaso observed:
[37] The Plaintiff’s motion material fails entirely to address the critical issues of whether the Plaintiff has lead appropriate evidence of due diligence in determining the identities of Lawlor and Dol and whether the Plaintiff has lead appropriate evidence as to why he or his counsel did not discover the Proposed Defendants prior to the expiration of the limitation period or prior the examinations for discovery. It is reasonable to infer that no steps were taken upon a plain reading of the affidavit. Such an inference is only supported by the admission of Plaintiff’s counsel that he made no inquiries or took no steps to determine the identities of any Proposed Defendants. The only explanation given is that the Plaintiff could not possibly have ascertained the identity of Lawlor and Dol until Examinations for Discovery. The courts have held that waiting until discovery to ask questions about prospective parties falls short of reasonable diligence. I find that waiting until discovery to ask questions about prospective Defendants in the case at bar also falls short of reasonable diligence. I find that the Plaintiff has not established that he could not have known the identity of Lawlor and Dol through due diligence before September 13, 2010 and November 25, 2010 because there was no due diligence of any kind. He has not met his onus and he has not presented evidence to establish that there is a triable issue as to discoverability in this action. The evidentiary record is devoid of any due diligence, reasonable efforts or steps undertaken by the Plaintiff or his counsel to identify these Proposed Defendants or any other potential Defendants.
[38] The limitation period set out in the Limitations Act is not to be ignored. The statutory rights of Lawlor and Dol not be sued outside the two year limitation period should not be compromised in the absence of evidence of the Plaintiff’s reasonable efforts and due diligence (of which there is none) to identify these Proposed Defendants. The limitation period set out in the Limitations Act is not to be ignored. The statutory rights of Lawlor and Dol not be sued outside the two year limitation period should not be compromised in the absence of evidence of the Plaintiff’s reasonable efforts and due diligence (of which there is none) to identify these Proposed Defendants. [my emphasis throughout]
[28] In my view, that is not the case in the present situation. My former colleague Master Dash addressed these issues shortly following the coming into force of the present Limitations Act. He described his views on how these cases should be addressed in Wong v. Adler; 70 OR (3d) 460; 2 CPC (6th) 175; 130 ACWS (3d) 703; 5 MVR (5th) 142:
[34] Both counsel rely on the recent case of Zapfe v. Barnes (2003), 66 O.R. (3d) 397, [2003] O.J. No. 2856 (C.A.) where the Court of Appeal allowed an appeal from a motion judge's refusal to add defendants after the expiry of a limitation period. The action arose out of a motor vehicle accident where the plaintiffs' vehicle was struck by the defendant's vehicle that was exiting from a parking lot. The defendant issued a third party claim against the property owner and the involved municipalities alleging that large piles of snow obstructed her vision. Seven months later, and 2 1/2 years after the expiry of the three-month limitation period under s. 284(2) of the Municipal Act, R.S.O. 1990, c. M.45, the plaintiffs sought to add the third party municipalities as party defendants. The plaintiff's solicitor swore affidavits alleging that at the time the statement of claim was issued the plaintiff had no knowledge of the snow banks that the defendant claimed blocked her vision or of the involvement of the municipalities. In her affidavit she explained why it was not possible with reasonable diligence to have discovered the cause of action against the municipalities until allegations were made in the third party claim, and that the facts to support the cause of action will not be known until the municipalities are discovered. ….
[36] The court restated the test for discoverability …:
The discoverability principle rests by definition on the requirement of due diligence by the plaintiff . . . That requirement dictates the test to be applied in determining the start of a limitation period under the discoverability principle: when can it be said that the plaintiff knew, or by reasonable diligence could have discovered, the material facts on which to base a cause of action against the proposed defendant?
As in the case before me, the plaintiff in Zapfe argued that “the determination of when a plaintiff acquired, or ought reasonably to have acquired, knowledge of the facts on which her claim is based is a question of fact which should be left for determination by a trial judge on a full evidentiary record”.
[29] After a careful analysis Master Dash posited the question:
[45] 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 that 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 limitations 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.
[30] More recently Justice I. F. Leach in Patrick v. The Corporation of the Municipality of Southwest Middlesex et al., 2017 ONSC 17; 2017 CarswellOnt 18; 274 AC.W.S. (3d) 418; 60 M.P.L.R. (5th) 267 synthesized the current state of play on such motions involving “discoverability considerations”:
[52] Strict application of the s.21(1) prohibition, without any allowance for such discoverability concerns, therefore would create the potential for injustice from the plaintiff perspective.
[53] On the other hand, freely allowing plaintiffs to add defendants by the mere mention of possible discoverability issues would be tantamount to ignoring s.21(1) altogether, and create potential injustice from the perspective of proposed defendants.
[54] The authorities accordingly have adopted an approach which effectively attempts to strike a balance between those extremes. In particular:
• To take advantage of the discoverability principle, a plaintiff must show that, before seeking to add a proposed defendant, he or she neither knew, nor by reasonable diligence could have known, that he or she had a claim against that proposed defendant. A plaintiff who seeks to add a proposed defendant to a claim, after passage of the ostensible limitation period, accordingly must put forward some evidence of his or her diligence.
• In most cases, one would expect to find, as part of a solicitor’s affidavit offered to substantiate the assertion that the party was reasonably diligent, a list of attempts made by the solicitor to obtain information, as well as an explanation as to why certain steps were not taken and/or why he or she was unable to determine the facts.
• Generally, however, as long as the plaintiff tenders evidence of steps taken to ascertain the identity of the tortfeasors, and gives a reasonable explanation on proper evidence as to why such information was not obtainable with due diligence, that will be the end of the enquiry, and the proposed defendant or defendants will be added with leave to plead a limitations defence. The threshold is not a high one. If the plaintiff fails to provide any reasonable explanation that could on a generous reading amount to due diligence, the motion will be denied. If the plaintiff puts in evidence of steps taken but the proposed defendant also provides evidence of further reasonable steps that the plaintiff could have taken to ascertain the information within the limitation period, then the court will have to consider whether the plaintiff’s explanation clearly does not amount to due diligence. If there is any doubt whether the steps taken by the plaintiff could not amount to due diligence, then that is an issue which must be resolved on a full evidentiary record at trial, or by way of summary judgment. In such cases, it therefore is appropriate to permit the amendment adding the proposed defendant, after which the defendant can in turn plead application of the limitation period.
• Applying the discoverability principle, so as to permit a plaintiff to add a defendant notwithstanding ostensible expiry of an applicable limitation period, nevertheless remains a matter of judicial discretion.[Citations omitted, my emphasis]
[31] In Patrick, Justice Leitch found that he was unable to find that the plaintiff’s explanation “clearly does not amount to due diligence”. Of some assistance in the present matter, he goes on to consider the difficulty in ascertaining information in cases involving municipalities:
[66] Moreover, there was no evidence before me to suggest that there is any source of authoritative information readily available to the public, (including potential litigants), to indicate and confirm the municipal entity having authority over any particular roadway in a specified location. To the contrary, the evidence before me suggests such information generally must be obtained from municipal entities, and that they themselves may not be able to provide such information readily, without first making further inquiries and/or completing investigations of their own.
[67] In other words, the evidence before me suggests that a potential claimant in the position of the plaintiff stands on the “outside” of a system, which allocates responsibility for road maintenance between municipal entities on the “inside” of that system, and that such a claimant effectively must rely on municipalities operating “inside” that system for definitive answers about particular allocations of road maintenance responsibility.
[68] In such circumstances, is it unreasonable for a claimant in that position to rely on written indications and/or admissions, from a number of municipal entities within that system, and geographically located near the location of the accident, that the correct municipal entity has been targeted and sued within the limitation period?
[69] I do not think it can be said, at this very preliminary stage of the litigation, that the answer is clearly “no”.
[32] Prior to his appointment to the Court of Appeal, Justice Lauwers in 2010 also considered this issue, in Madrid v. Ivanhoe Cambridge Inc., et al., 2010 ONSC 2235; 2010 CarswellOnt 2799; 2010 ONSC 2235; 101 OR (3d) 553; 188 AC.W.S. (3d) 402. In his decision he considered the appropriate policy considerations:
[13] The dominant policy thrust of the system of justice is that cases should be heard on the merits. Another policy thrust, found in the Limitations Act, 2002, is to encourage a plaintiff to commence an action as soon as possible. But a third and tempering policy thrust is found in s.5 of the Limitations Act, 2002, which codifies discoverability. As the Supreme Court of Canada noted in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, at para. 36:
Since this Court's decisions in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, and Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, at p. 224, discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it. See Sparham-Souter v. Town & Country Developments (Essex) Ltd., [1976] 1 Q.B. 858 (C.A.), at p. 868 per Lord Denning, M.R., citing Cartledge v. E. Jopling & Sons Ltd., supra: It appears to me to be unreasonable and unjustifiable in principle that a cause of action should he held to accrue before it is possible to discover any injury and, therefore, before it is possible to raise any action.
These policy thrusts are to be reasonably balanced.
[14] It is not unusual for possible defendants to emerge as a result of information received during the opposite party's document production or during the discovery process in an action. In the context of motor vehicle accidents, examinations for discovery are often delayed to permit injuries to ripen and perhaps resolve so later discovery of additional possible defendants is not so unusual: see, for example, Wong v. Sherman, [1998] O.J. No. 1534, 60 O.T.C. 174 (Gen. Div.); Burtch v. Barnes (Estate) (2006), 80 O.R. (3d) 365, [2006] O.J. No. 1621, 20 M.P.L.R. (4th) 160 (C.A.).
[33] His Honour went on to observe that in the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s. 5 of the Limitations Act, 2002.
[34] I agree with and adopt his conclusion that:
“It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendants and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery.”
VI. Disposition
[35] While I appreciate that the resisting parties to this motion apparently had no part in the inability of the plaintiff to ascertain their involvement on a timely basis. Proportionality and the guidance of Rule 1.04 that the Rules are to be construed liberally, to secure a just result in the action “on its merits” leads me to the conclusion that leave ought to be granted to add as defendants, Enbridge Gas Distribution Inc. and Rabcon Contractors Ltd., and I so order.
[36] The added parties were in no way responsible for the necessity of this motion and the City took no position on this motion. The plaintiff is being granted an indulgence and I feel the fairest resolution is to make no Order as to costs at this time, but to leave the allocation of costs to the ultimate trier of the facts in this case.
Released: September 25, 2018 Master D. E. Short DS/ R243