Court File and Parties
COURT FILE NO.: CV-15-536921A1 MOTION HEARD: 20190423 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Haresh Durbejai, Plaintiff AND: Tajnaught Durbejai and Dmitry Kolesnik, Defendants AND: The City of Toronto, Third Party
BEFORE: Master Jolley
COUNSEL: Yasna Beheshti, Counsel for the Moving Party Defendant Kolesnik Ara Basmadjian, Counsel for the Responding Proposed Third Party Toronto Hydro-Electric System Limited
HEARD: 23 April 2019
Reasons for Decision
[1] The defendant Dmitry Kolesnik (“Kolesnik”) brings this motion for leave to commence a third party claim against Toronto Hydro-Electric System Limited (“Toronto Hydro”). Toronto Hydro argues that the limitation period to commence a claim against it has expired and the motion should be dismissed.
[2] The issue before the Court is when Kolesnik ought reasonably to have discovered that he had a claim against Toronto Hydro. The test is clearly set out in Morrison v. Barzo, 2018 ONCA 979, at paragraph 32, where the Court of Appeal stated as follows:
The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) [of the Limitations Act, 2002, S.O. 2002, c.24, Sch. B.] that he or she knew of the matters referred to in s. 5(1) (a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court’s finding as to when the plaintiff subjectively knew that he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.
[3] The evidentiary threshold is low and the moving party’s explanation should be given a “generous reading” and considered in the context of the claim. If there is no genuine issue requiring a trial about Toronto Hydro’s limitation period defence, leave will not be granted to issue the third party claim. If there is a genuine issue, then leave may be granted with Toronto Hydro permitted to plead its limitation period defence (Trent University v. Nortex Roofing Ltd., 2009 CarswellOnt 5394).
[4] Toronto Hydro argues that Kolesnik knew there was an issue with the traffic lighting on 12 October 2013, the date of the accident, as he advised the police that day that “There were no lights at all. I turned high beam. It was too late.” Further, while the statement of claim which was issued 22 September 2015 did not allege a traffic light failure or a power outage, the statement of defence and crossclaim of Tajnaught Durbejai dated 11 August 2016 pleads that Kolesnik “failed to stop at the intersection before proceeding through it when faced with an inoperable traffic light”.
[5] Toronto Hydro alleges that Kolesnik knew on the date of the accident or could have known with reasonable diligence within two years of his receipt of the statement of claim that he had a claim against Toronto Hydro with respect to the non-operation of the traffic lights and he failed to take steps before the expiry of the limitation period to add Toronto Hydro.
[6] In support of its position that Kolesnik knew of his claim against Toronto Hydro within the two years of his receipt of the statement of claim sometime in September 2015, Toronto Hydro notes that Kolesnik’s own third party claim issued 21 June 2017 against the City of Toronto pleaded that the traffic signals and other lighting were non-operational, leaving the area in complete darkness.
[7] Alternatively, Toronto Hydro argues that Kolesnik tendered no evidence of the due diligence steps he undertook to determine whether he had a claim against Toronto Hydro. He simply relied on the fourth party claim issued by the City of Toronto to ensure Toronto Hydro was at the table. What he did not anticipate was a contractual term between the City of Toronto and Toronto Hydro that precluded the City’s fourth party claim and resulted in those parties agreeing to a dismissal of that action without costs.
[8] Kolesnik argues that, while he knew the traffic light was not working, he did not know and could not reasonably have known until at least 30 March 2017 that the traffic light failure was due to a power outage rather than a malfunction or maintenance issue and he did not know until 30 August 2017 or perhaps even 31 October 2017, the date of the City’s defence to the third party claim, that the outage was the responsibility of Toronto Hydro.
[9] For this, he relies on the police file that was produced pursuant to a court order and that he received on 30 March 2017. The notes in that file indicated that due to a power outage, the area was dark without any artificial lights and the traffic lights were not working.
[10] On 30 August 2017 Kolesnik’s counsel delivered an audio file of a 911 call to the City in which the caller reported the accident she had witnessed and stated that “it is a massive power outage over here”. That same day the City advised Kolesnik’s counsel that the power outage referenced fell within the mandate of Toronto Hydro. Of note, the City’s email states “I just listened to the audio tape which is the 911 call by the witness Alaina Slavec. She indicates that there is a ‘massive power outage’ in the area. It is clear that this is not a malfunctioning street light but rather a power outage in the area which would fall within the mandate of Toronto Hydro.” This was repeated in the correspondence sent two months later attaching the City’s defence to the third party claim.
[11] Kolesnik presumed that the failed traffic light was the responsibility of the City and, on that basis, issued his third party claim against the City of Toronto only, on 21 June 2017. In his third party claim against the City, Kolesnik pleaded that “at the time of the motor vehicle accident, the street lights, traffic signals, and other lighting for the highway(s) at and around the scene of the accident were non-operational, leaving the area in complete darkness, causing a danger to drivers and occupants of motor vehicles.” He further pleaded that “at all material times the City of Toronto had jurisdiction over the public highway(s) where the motor vehicle accident occurred, and was wholly responsible for the maintenance and repair of the highway’s traffic lights, street lights, and their components. This Defendant states that the City of Toronto is the owner and/or occupier of the subject highway(s) within the meaning of the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, as amended.” Kolesnik pleaded that the lights were defective and that the City failed to repair them, that the City caused the power supply to be defective, that it failed to inspect properly and failed to maintain the system. It is unclear why Kolesnik did not amend his third party claim to include Toronto Hydro once he received the 30 August 2017 email indicating that this was a power outage that was the responsibility of Toronto Hydro.
[12] More than a year later, on 9 October 2018, the City sent all parties an Interruption Tracking Information Systems Report prepared by Toronto Hydro that indicated that a Toronto Hydro equipment failure was the cause of the power outage.
[13] Kolesnik argues that once he received the Interruption Tracking Information Systems Report and the City’s defence to the third party claim that pleaded that there had been an electrical power outage in the area of the accident and that Toronto Hydro was responsible for the electrical power, he was then in a position to reasonably know he had a cause of action against Toronto Hydro. He notified all parties on 14 November 2018 that he would be bringing a motion to add Toronto Hydro to the third party claim. It seems more likely that it was the receipt of the order dismissing the City’s fourth party claim against Toronto Hydro which had also been included in the 9 October 2018 letter from the City that caused him to finally move to add Toronto Hydro.
[14] In terms of relevant knowledge, there is a distinction between knowing that the traffic lights were not working, which Kolesnik clearly knew, and knowing why the traffic lights were not working as it is the why or cause of the traffic light malfunction that brought Toronto Hydro’s action into play. Kolesnik indicated that he learned of the power outage on 30 March 2017 and further learned that Toronto Hydro was responsible for the power on 30 August 2017 in the City’s email to his counsel. Finally, he learned of the Toronto Hydro equipment failure on 9 October 2018. While Toronto Hydro argues that information about its responsibility for power outages is available through simple internet searches, I cannot find on this motion that that would definitely start a limitation period to run, particularly in light of Toronto Hydro’s position in its defence to the City’s fourth party claim that there was no power outage in the area.
[15] I find that it is arguable that Kolesnik’s limitation period did not start to run as against Toronto Hydro until 30 March 2017. It is unclear why Kolesnik did not include Toronto Hydro in his original third party claim but he has brought this motion within two years of 30 March 2017.
[16] I find that there is a genuine issue for trial as to when Kolesnik’s claim against Toronto Hydro was capable of being discovered through the exercise of due diligence. Toronto Hydro may well argue that Kolesnik was aware of the power outage and its connection to the traffic light malfunction at the time of the accident based on his report that the area was completely dark. The motion is granted with leave for Toronto Hydro to plead that fact and the expiry of the limitation period in its defence.
[17] Kolesnik was successful on the motion and I award him partial indemnity costs in the amount of $4,000 in the cause.