Miano v. Campos et al.

[Indexed as: Miano v. Campos]

Ontario Reports Ontario Superior Court of Justice Faieta J. April 8, 2019 145 O.R. (3d) 306 | 2019 ONSC 1816

Case Summary

Civil procedure — Determination before trial of question of law — Whether claim was commenced after expiry of limitation period being question of mixed fact and law — Motion to dismiss action as statute-barred not being properly brought under rule 21.01(1)(a) of Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(a).

Limitations — Discoverability — Limitation period for claim for damages arising from motor vehicle accident not starting to run until plaintiff knows or ought to know identity of owner or operator of automobile that caused plaintiff's injuries.

The plaintiff was run over by a pick-up truck while he was lying on the shoulder of a highway in May 2015. The driver fled the scene, and the plaintiff was unable to identify the truck. After trying unsuccessfully to obtain a motor vehicle accident report from the Ontario Provincial Police, he commenced an action in April 2017 against his automobile insurer for compensation pursuant to the unidentified automobile coverage of his automobile policy. In February 2018, the plaintiff discovered that the defendant C was the probable owner of the truck. He commenced an action against C as the owner and/or operator of the truck and Jane Doe as the person who, in the alternative, was the operator of the truck. C brought a motion under rule 21.01(1)(a) of the Rules of Civil Procedure for an order dismissing the action as statute-barred.

Held, the motion should be dismissed.

Whether the claim was commenced after the expiry of the limitation period was a question of mixed fact and law. Accordingly, the motion was not properly brought under rule 21.01(1)(a). The date as of which a claim was discoverable is a question that should be determined at trial or, in an appropriate case, on a motion for summary judgment.

A claim against the owner or operator of an automobile is not discovered under s. 5(1)(a)(iii) of the Limitations Act, 2002 , S.O. 2002, c. 24, Sch. B until the plaintiff knows or ought to know not only the culpable acts or omissions of the owner or operator of the automobile that caused the plaintiff's injuries, but also the identity of the owner or operator.

Nasr Hospitality Services Inc. v. Intact Insurance (2018), 142 O.R. (3d) 561, 2018 ONCA 725, 427 D.L.R. (4th) 462, [2019] I.L.R. para. I-6090, 84 C.C.L.I. (5th) 179, revg on other grounds [2017] O.J. No. 3552, 2017 ONSC 4136, [2017] I.L.R. para. I-5984, 282 A.C.W.S. (3d) 407 (S.C.J.); Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd., [2010] O.J. No. 3338, 2010 ONCA 545, 268 O.A.C. 103, 322 D.L.R. (4th) 1, 192 A.C.W.S. (3d) 622, consd

MOTION for summary judgment dismissing an action as statute-barred.

Counsel: Ian Drong, for plaintiff. Eric K. Grossman, for defendant Irina Campos.

FAIETA J.: —

Introduction

[1] On May 22, 2015, the plaintiff was run over by a pick-up truck while he was lying on the shoulder of a highway after having fallen from his motorcycle. The plaintiff was unable to identify the automobile that struck him as it had fled the scene of the accident.

[2] A few months later, counsel for the plaintiff sought but was unable to obtain a motor vehicle accident report from the Ontario Provincial Police that identified the owner or operator of the automobile. In April 2017, the plaintiff commenced an action against his automobile insurer, State Farm, for compensation pursuant to the unidentified automobile coverage of his automobile policy. See Miano v. State Farm Insurance Co., Court File No. CV-17-574117.

[3] On November 16, 2017, at State Farm's request, Master Short ordered the Ontario Provincial Police to release to State Farm a copy of all their records related to this collision, including all names and contact information of the persons who are not parties to this action.

[4] On about February 20, 2018, State Farm provided a copy of the police records to the plaintiff. The records show that dashcam footage from another automobile captured the collision but that police did not proceed with the charges as they were unable to conclusively determine that the automobile that struck the plaintiff was owned by the defendant Campos. However, the records did identify the defendant Campos as the probable owner.

[5] The plaintiff commenced this action on March 15, 2018 against the defendant Campos as the owner and/or operator of the automobile that struck the plaintiff and Jane Doe as the unidentified person who, in the alternative, was the operator of the automobile. Defendant Campos' statement of defence alleges that "this action was commenced outside of the limitation found in section 4 of the Limitations Act, S.O. 2002, c. 24, Sched. B and is therefore statute barred". The plaintiff did not deliver a reply and by operation of rule 25.08(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiff is deemed to have denied this allegation: Gronka v. Canadian Surety Co., [1991] O.J. No. 616, [1991] I.L.R. para. 1-2767 at 1524 (Gen. Div.).

[6] The defendant brings this motion under Rule 21 of the Rules of Civil Procedure for an order dismissing this action on the ground that it was commenced after the limitation period expired. During the hearing of the motion, counsel clarified that the defendant was relying on rule 21.01(1)(a).

[7] Two issues arise from this motion. First, the plaintiff submits that the defendant's motion for dismissal of his action is not properly brought under rule 21.01(1)(a) of the Rules of Civil Procedure. Second, the defendant's motion also raises the issue of whether the limitation period for a claim for damages, arising from an automobile accident, commences to run on the date of the accident even if the plaintiff does not know and cannot reasonably discover the identity of the owner of the automobile on the date of the accident.

[8] I have dismissed this motion, as I have concluded that it should not have been brought pursuant to Rule 21. Further, I have determined that a claim against the owner or operator of the automobile is not discovered under s. 5(1)(a)(iii) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B until the plaintiff knows or ought to know not only the culpable acts or omissions of the owner or operator of the automobile that caused the plaintiff's injuries but also the identity of the owner or operator.

Issue #1: Is this Motion for Dismissal of the Action Properly Brought under Rule 21.01(1)(a) of the Rules of Civil Procedure?

[9] Rule 21.01(1)(a) of the Rules of Civil Procedure states:

A party may move before a judge . . . for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs . . . and the judge may make an order or grant judgment accordingly.

[10] There has been little judicial appetite to hear a motion to dismiss an action on the basis of a limitation period defence under Rule 21. The Ontario Court of Appeal stated 20 years ago in Boutin v. Co-operators Life Insurance Co. (1999), 42 O.R. (3d) 612, [1999] O.J. No. 64 (C.A.), at paras. 20-22, that the question of whether a defendant can rely on a limitation period has a significant factual component and is therefore not a question of law that can be resolved on a rule 21.01(1)(a) motion. The court's discussion regarding the distinction between Rules 20, 21 and 22 remains applicable:

On a motion under Rule 20 the motions judge must determine that there is or is not a genuine issue for trial: see Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (C.A.). That determination is based on the evidence filed on the motion. It is not based on the pleadings, apart from any admissions in the pleadings. Thus, a party responding to a summary judgment motion cannot sit back and rely on the pleadings. See 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.). Because of the provisions of Rule 20.04(4), if the only genuine issue for trial is a question of law, the motions judge may determine the question of law and grant judgment accordingly. Rule 20.04(4) provides that this will be done only where there are no facts in dispute which may give rise to a genuine issue for trial.

Motions under Rule 21 and 22 are different from summary judgment motions under Rule 20. Motions under Rules 21 and 22 focus on questions of law raised by the pleadings (Rule 21.01(1)(a)), or stated by agreement of the parties (Rule 22.01(1)). A Rule 22 motion brought by the agreement of the parties will, as a result of the provisions of Rule 22.04(a), be accompanied by an agreed statement of fact to the extent that facts are necessary "to enable the court to determine the question stated." Rule 21.01(2) provides that there be no evidence on a motion under Rule 21.01(1)(a) "except with leave of a judge or on consent of the parties." Since Rule 21.01(1)(a) requires that the question of law be raised by the pleadings there will generally be no need for evidence on a Rule 21.01(1)(a) motion. It seems clear to me that it was for this reason that the drafters of the Rules provided that there should be no evidence on a motion under Rule 21.01(1)(a), except for cases in which leave is granted or there is consent.

I do not think that the issue whether the policy limitation period is a bar to the appellant's action is a question of law that should have been resolved on a Rule 21.01(1)(a) motion. As the motions judge's endorsement indicates, the application of the limitation period in this case depends upon findings of fact for its resolution. This is also apparent from the appellant's reply to the respondent's statement of defence. In my opinion, whether the respondent is entitled to rely on the limitation period in the policy has a significant factual component and is thus a matter which should be addressed at trial, not on a Rule 21.01(1)(a) motion.

[11] To similar effect, in Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., [2009] O.J. No. 611, Justice D.M. Brown (as he then was) stated, at para. 19:

Too many parties regard Rule 21 motions as abbreviated surrogates for motions for summary judgment. Rule 21 motions are not even close cousins to motions for summary judgment. Summary judgment motions permit courts to review evidence in order to test the merits of a case -- albeit a limited form of testing at present, but more robust testing will occur with the implementation of the improved Rule 20 on January 1, 2010: O. Reg 438/08. Rule 21 motions, by contrast, "focus on questions of law raised by the pleadings": Boutin v. Co-operators Life Insurance Co. (1999), 42 O.R. (3d) 612 (C.A.), para. 21. As Osborne J.A. noted in Boutin, in most cases the application of a limitation period "depends upon findings of fact for its resolution": para. 22. Evidence-based motions offer the more appropriate procedure by which to deal with the applicability of limitation defences.

[12] More recently, in Golden Oaks Enterprises Inc. (Trustee of) v. Lalonde (2017), 137 O.R. (3d) 750, [2017] O.J. No. 3188, 2017 ONCA 515, at para. 45, the Ontario Court of Appeal stated:

. . . the basic limitation period established by the Limitations Act, 2002 is now premised on the discoverability rule. The discoverability rule raises issues of mixed fact and law: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 38. We therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear the facts are undisputed. Absent such circumstances, we are sceptical that any proposed limitation defence under the Act will involve "a question of law raised by a pleading" as required under rule 21.01(1)(a).

[13] The question of whether a claim was commenced after a limitation period expired is a mixed question of fact and law, not a question of law, and thus should not be determined under Rule 21. The date as of which a claim was discoverable is a question that should be determined at trial or, in an appropriate case, on a motion for summary judgment. It is only in those rare cases where all relevant facts are undisputed, that a motion under rule 21.01(1)(a) can be used to determine whether a claim was commenced after the expiry of a limitation period.

[14] On this motion, the defendant relies solely on the allegations in the pleadings. The plaintiff relies on affidavit evidence that describes how he came to discover the identity of the defendant Campos and asserts that the claim was not discoverable until he received an unredacted copy of the police report. The defendant submits that leave to admit such evidence should not be granted and that she needs to cross-examine the affiant.

[15] Given that the lack of agreed facts, I dismiss the defendant's motion for an order declaring that the plaintiff's claim is barred by the Limitations Act, 2002 as it is not a proper use of Rule 21 in these circumstances.

Issue #2: Does the Limitation Period for a Claim for Damages Arising from an Automobile Accident Commence to Run on the Date of the Accident even if the Plaintiff does not Know and Cannot Reasonably Discover the Identity of the Owner on the Date of the Accident?

[16] Given that I have dismissed the defendant's motion because it was improperly brought under Rule 21, it is not necessary for me to analyze the substance of the defendant's submissions. However, in the interests of efficiency, I will provide comments on the defendant's submission that the limitation period for a claim for damages arising from an automobile accident commences to run on the date of the accident, regardless of whether the plaintiff has discovered or can discover the identity of the owner or operator of the automobile.

[17] Section 5 of the Limitations Act, 2002 (the "Act") sets out when a claim is discovered.

[18] Subsections 5(1) and (2) of the Act state:

5(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).

(2) 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.

[19] The jurisprudence interpreting these sections has held that the discoverability of a claim depends on the discoverability of the identity of the wrongdoer, as well as the discoverability of the acts or omissions that constitute the grounds for liability. I agree with the following summary of the law on discoverability provided by Justice Perell in Nasr Hospitality Services Inc. v. Intact Insurance, [2017] O.J. No. 3552, 2017 ONSC 4136, [2017] I.L.R. para. I-5984 (S.C.J.), at paras. 20-26, revd on other grounds 2018), 142 O.R. (3d) 561, [2018] O.J. No. 4514, 2018 ONCA 725:

Prior to the enactment of s. 5(1)(a)(iv) of the current Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief: Kamloops v. Nielsen (1984), 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, [1997] 3 S.C.R. 549.

The discoverability principle continues to operate, and indeed has been codified by the Limitations Act, 2002, but its operation has been adjusted by s. 5(1)(a)(iv), and thus subject to s. 5(1)(a)(iv), a limitation period commences at its earliest when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence, but because of s. 5(1)(a)(iv), discoverability may be postponed.

The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another: Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 at p. 170 (C.A.).

Section 1 of the Limitations Act, 2002 defines "claim" to mean: "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission." A claim is a cause of action, which is the fact or facts which give a person a right to judicial redress or relief against another. See: Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc., at p. 170. In Lawless v. Anderson, supra, the Court of Appeal stated at paras. 22-23:

The principle of discoverability provides that "a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term 'cause of action' -- the fact or facts which give a person a right to judicial redress or relief against another" . . .

Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation period begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.).

Subject to the adjustment made by s. 5(1)(a)(iv), with respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is "discovered" on the earlier of the date the claimant knew -- a subjective criterion -- or ought to have known -- an objective criterion -- about the claim: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.

The discoverability of a claim for relief involves the identification of the wrongdoer and also the discovery of his or her acts or omissions that constitute liability: Aguonie v. Galion Solid Waste Material Inc.; Ladd v. Brantford General Hospital (2007), 88 O.R. (3d) 124 (S.C.J.).

It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenaway v. Ontario (Minister of Transportation) (1999), 44 O.R. (3d) 296 (Gen. Div.).

(Emphasis added)

[20] Accordingly, a claim is not discoverable until the identity of the wrongdoer is known or knowable with reasonable diligence.

[21] The defendant submits that:

The name of the owner of an unidentified automobile, or potential tortfeasor, is not necessary for the discoverability principle to apply. The Ontario Court of Appeal has explicitly foreclosed a broad interpretation of the discoverability principle as it relates to the discovering of the identity of tortfeasors. In [Safai v. Bruce Huntley Contracting Ltd., 2010 ONCA 545, 322 D.L.R. (4th) 1,] the appellants argued that the limitation period did not run until they discovered the identity of the owner of the vehicle involved in the motor vehicle accident. Armstrong J.A. rejected the argument that the limitation period is not triggered until the name of a tortfeasor is known on the ground of practical considerations:

The proposition of the appellants, taken literally, would mean that in every motor vehicle accident when the ownership of the defendant's vehicle was not immediately known, the limitation period would be extended until such time as a routine search of the motor vehicle register could be made. Thus, the limitation period would not commence on the date of the accident but on the date that the routine motor vehicle search revealed the owner's name. This defies common sense and is not what the discoverability rule is intended to accomplish.

[22] The defendant also submits that the plaintiff should have commenced the action against Jane Doe, as the owner and/or operator of the automobile that collided with the plaintiff, in 2017 when it commenced its action against State Farm.

[23] I make the following observations.

[24] First, Safai did not involve an automobile accident as suggested by the defendant. The facts in Safai are as follows. The plaintiff broke her ankle in February 2000 after she slipped and fell on a patch of ice in a parking lot. In March 2000, the plaintiff retained a lawyer and advised the lawyer that she believed she fell on property owned by the Huntley Group. She advised her lawyer that she had no information about the identity of the contractor who maintained the parking lot. The lawyer noted in his diary that the limitation period would expire on February 17, 2006, being six years from the date of her fall. Her lawyer arranged for a title search and learned in May 2000 that the owner of the property was the defendant Huntley. The lawyer received a letter in October 2000 from Huntley which identified Markham Property Services Ltd. as responsible for snow removal. The claim against Huntley was issued on February 23, 2006. The plaintiff's lawyer admitted that the claim was not issued prior to February 23, 2006 due to inadvertence. Another claim was issued on September 27, 2006 against Markham. Both defendants moved to dismiss the action on the basis that the actions had been commenced after the expiry of the six-year limitation period that applied at the time. The motion judge refused to apply the common law discoverability rule and found that both claims were statute-barred. The Court of Appeal dismissed the plaintiff's appeal in respect of Huntley and allowed her appeal in respect of Markham.

[25] Second, the court in [Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd., [2010] O.J. No. 3338, 2010 ONCA 545] did not state that a limitation period commences on the date of an accident in all cases even if the plaintiff is not in a position to ascertain the identity of the tortfeasor on that date. Instead, it recognized that if there is no simple procedure that the plaintiff could undertake as of the date of the accident to ascertain the identity of the tortfeasor, then the limitation period may well start running at a later date. At paras. 19 and 20, the court states:

I now turn to the appellants' claim against the owner of the property, Huntley. On February 17, 2000, Ms. Safai knew that she had fallen and injured her ankle. She knew that she likely had a claim for her injuries against the owner of the property. As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period. It is not an insignificant fact that the appellants' lawyer recorded the expiry date of the limitation period in his diary as the six year anniversary date of the accident.

I take a different approach to the claim against Markham. In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. As of the date of the accident, it was reasonable for Ms. Safai to assume that she may have a cause of action against the owner of the property. However, on the record before the motion judge she did not know that the owner of the property had contracted out the winter maintenance for the property to a third party. This information may not have been available until her lawyer was advised by the receipt of the letter dated October 19, 2000 from the insurer for the owner of the property. Unlike the name of the owner of the property, there was no simple procedure, such as a search of a public register, to ascertain that the winter maintenance responsibilities were contracted out to a third party. In these circumstances, it would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.

(Emphasis added)

[26] The distinction that the Court of Appeal drew in Safai between the discoverability of the plaintiff's claims against each defendant was recognized by the Ontario Divisional Court in Wyderko v. Spers, [2011] O.J. No. 1209, 2011 ONSC 1650, 280 O.A.C. 158 (Div. Ct.), at para. 17:

The Court dismissed the appeal of one of the claims while allowing the appeal of the other because it was of the opinion that the plaintiff was in a position to find out the name of the owner of the property but not the name of the maintenance company on the date of the accident.

[27] Third, Safai was decided under the predecessor to the Limitations Act, 2002 and applied the common law related to whether the running of a limitation period should be postponed because the cause of action was not discoverable. It obviously did not consider s. 5(1)(a)(iii) of the Limitations Act, 2002, which makes the plaintiff's identification of the defendant as a tortfeasor a precondition for the commencement of the running of a limitation period.

[28] As the Ontario Court of Appeal stated in Placzek v. Green, [2009] O.J. No. 326, 2009 ONCA 83, 307 D.L.R. (4th) 441, at para. 41:

If it is not otherwise obvious, s. 5(1)(a)(iii) of the new Act makes it clear that the "acts or omissions" on which a claim is based must be the acts or omissions of the defendant to the claim. In particular, s. 5(1)(a)(iii) provides that one element of discovering a claim is knowing that "the act or omission was that of the person against whom the claim is made".

[29] I also note that in Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 106 O.R. (3d) 332, [2011] O.J. No. 3314, 2011 ONCA 522, the Ontario Court of Appeal implicitly acknowledges that a claim against the owner of an automobile is discovered on the earlier of the day the person with the claim discovers, amongst other things, that the defendant was the owner of the automobile and the day on which a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known that the defendant was the owner of the automobile.

[30] The defendant's position that the limitation period for a claim for damages arising from an automobile accident commences to run on the date of the accident even if the plaintiff does not know and cannot reasonably discover the identity of the owner and operator of the automobile on the date of the accident is misguided. It ignores the plain language of ss. 5(1)(a)(iii) and 5(1)(b) and renders those provisions meaningless. Given these provisions, it is unnecessary to commence a claim against "Jane Doe" in order to "preserve" a limitation period, as the limitation period does not commence to run until the identity of the owner or operator, as the case may be, is known or ought to have been known. Such an approach adds nothing of value, clutters the record and, if Jane Doe was later identified, would then necessitate an unnecessary step in this proceeding to remove Jane Doe as a defendant and add the identified defendant.

Conclusions

[31] For the above reasons, I dismiss the defendant's motion.

[32] The plaintiff seeks his costs of this motion in the amount of $6,016.21 on a partial indemnity basis. The objective of an award of costs is ". . . to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant": Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26.

[33] The defendant's costs outline claims costs of $5,888.54 on a partial indemnity basis. The defendant notes that the hourly rates of the plaintiff's counsel were higher even though they are similarly situated in terms of experience. I agree that costs should be adjusted on that basis. Further, the defendant submits that no costs should be granted to the plaintiff on the basis that this motion would not have been brought had the plaintiff filed a reply which responded to the limitations defence or if the plaintiff had sought leave to adduce evidence at an earlier date. I do not find these arguments persuasive. I find that it is fair and reasonable for the defendant Campos to pay costs of $5,000 to the plaintiff in respect of this motion.

Motion dismissed.

End of Document

Miano v. Campos, 2019 ONSC 1816

Case Summary

Miano v. Campos et al.

Case Summary

Other cases referred to

Statutes referred to

Rules and regulations referred to

Introduction

Issue #1: Is this Motion for Dismissal of the Action Properly Brought under Rule 21.01(1)(a) of the Rules of Civil Procedure?

Issue #2: Does the Limitation Period for a Claim for Damages Arising from an Automobile Accident Commence to Run on the Date of the Accident even if the Plaintiff does not Know and Cannot Reasonably Discover the Identity of the Owner on the Date of the Accident?

Conclusions

Cited By (1 case)

Riha v. A. Wilford Professional Corporation, 2022 ONSC 1110

Judge

Counsel

Parties

Areas of Law