Court File and Parties

COURT FILE NO.: CV-19-138965-00 DATE: 20200226 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Young Sook Lee, Plaintiff/Moving Party AND: Ford Credit Canada Company, Proposed Defendant/Responding Party AND: Aviva Insurance Company of Canada, Defendant

BEFORE: Master J. Josefo

COUNSEL: A. Weiss, for the Plaintiff/Moving Party B. Mitchell, for the Proposed Defendant/Responding Party M. Yoon, for the Defendant

HEARD: February 25, 2020

REASONS FOR DECISION

Background facts

[1] The plaintiff Lee was involved in a motor vehicle accident on January 25, 2017. She retained Jae Cho, of Vaturi & Cho LLP to represent her. On January 25, 2019, the plaintiff issued her statement of claim against defendants Castro, Wise, and Aviva Insurance Company of Canada (“Aviva”).

[2] About two weeks after the second anniversary of the accident date, on February 11, 2019 the plaintiff purported to put Ford Credit Canada Company (“Ford”), the owner of the vehicle leased by Castro, on notice of the claim. Many months later, in November 2019, the plaintiff finally took steps to add Ford as a defendant to this within action.

[3] Ford resists the plaintiff’s motion to amend her statement of claim to add Ford, asserting that, pursuant to the Limitations Act, 2002 (hereafter “Limitations Act”), the plaintiff is out of time to do so.

Issue & Parties Participating in the Motion

[4] The question to be decided is whether Ford can be added as a defendant to this action.

[5] Mr. Weiss represents the plaintiff. None of the defendants take a position. Ms. Yoon, representing Aviva attended only on a “watching brief”. Mr. Mitchell, counsel for the proposed defendant Ford, opposed the request of the plaintiff.

Discussion of the Facts and Evidence Juxtaposed with the Applicable Law

[6] This case involves the interplay between the Rules of Civil Procedure which govern adding a party and amending a pleading, with the Limitations Act, 2002. Whether one relies Rule 5.04(2) to try to add a party or Rule 26 to amend a pleading, in either case the proviso is “unless prejudice would result that could not be compensated for by costs or an adjournment.”

[7] Section 4 of the Limitations Act provides that “unless this 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.” Section 5(1) provides by when and how a claim is discovered, while section 5(2) specifies that a claimant “shall be presumed to have known of the matters… on the day the act or omission took place, unless the contrary is shown.”

[8] Accordingly, the Limitations Act permits a claimant to prove that she/he did not know that the injury, loss or damage occurred on the day the act or omission took place. Yet, in such cases the claimant, or would-be plaintiff, bears the onus to displace, through proof, the above-noted presumption.

[9] In this matter, plaintiff argues that it relied on an erroneous police report which did not identify Ford as the owner of the Castro leased vehicle. Thus, when the claim was issued just at the second anniversary of the accident, Ford was not named as a defendant. While acknowledging that a MTO search would have been prudent, as such would have identified the owner of the vehicle, Mr. Weiss submitted that plaintiff demonstrated reasonable due diligence to reply on the police report.

[10] Leaving that argument aside for the moment, the fact is that well before the second anniversary of the accident and the presumptive expiry of the limitation period, plaintiff in fact was made aware that Ford owned the Castro vehicle. On October 29, 2018, Mr. Cho and an assistant in his office received an email from a casualty specialist at Aviva. The email memorialized an earlier discussion wherein Mr. Cho was informed that Castro was driving a vehicle leased from Ford. The email specifically stated in part as follows: “we recommend that you place Ford Credit Canada Ltd. on notice for this loss…”.

[11] On that date it is thus clear that Mr. Cho was told about Ford, and he later received a confirming email. Yet, despite this all being provided to him, through admitted inadvertence, Ford was not named as a defendant when the claim was issued on the second anniversary of the accident and on the eve of the expiry of the presumptive time-limit.

[12] Mr. Weiss argued, however, that the inadvertence did not matter because the second anniversary date of January 25, 2019, when the action was commenced against the other defendants, was not the actual time-limit. It was submitted that October 29, 2018, the date of receipt of the email from Aviva, was when the two years began to run for adding Ford. Mr. Weiss submitted that relying on the erroneous police report was, in the circumstances, reasonable due diligence. He added that it could not have been known until October 29, 2018 that Ford was owner of the vehicle and a likely defendant in the within action.

[13] I disagree. Mr. Weiss acknowledged in his submissions that a MTO search could have been done which would have identified Ford as owner. When cross-examined, Mr. Cho testified that such searches are done “90% of the time” by his office. There is no explanation as to why one was not done in this case. This lack of a good explanation why (or how) this was missed does not rebut the presumption.

[14] “Discoverability is based on the exercise of reasonable diligence by a party”, as I observed in Rojas v. Porto et al., 2019 ONSC 447 (paragraph 13). Further in that decision, I observed that a plaintiff is obliged to investigate so to determine the proper defendants, and that “doing nothing is clearly not being duly diligent” (paragraph 16).

[15] Yet in this case, nothing is all that counsel for plaintiff did. Mr. Cho took no steps other than to rely on a report which, on a routine check, he would have quickly learned was not accurate.

[16] The identity of the vehicle owner was really discoverable on simple inquiry and it ought to have been discovered within two years of the accident by any reasonable person. As was held in Klein v. G4S Secure Solutions (Canada) Ltd., 2016 ONSC 1930, [2016] O. J. No. 2750 (S.C.J.), if a plaintiff fails to make the requisite “simple inquiry”, the plaintiff was not being duly diligent. That applies to this case. The plaintiff simply was not duly diligent. There is thus no ground to add a newly discovered defendant after expiry of the time-limit.

[17] Of course, the within facts are worse for this plaintiff, as the new proposed defendant was actually known to counsel for the plaintiff before the second anniversary of the accident. Once that information was received no further inquiry was necessary. For all these reasons, October 29, 2018 was not the discoverability date and not the date when the two year time-limit to add Ford began to run.

[18] Mr. Weiss submitted alternatively that the action was only discoverable when a medical assessment was received on May 23, 2018. Until May 23, 2018 the severity and thus viability of the action was not capable of being known.

[19] Again, I must disagree. As discussed in Kowal v. Shyiak, 2012 ONCA 512, [2012] O. J. No. 3420 (C.A.), so long as there exists ample evidence of the elements for the plaintiff to have discovered her claim, this will suffice. Certainty is not required. As referenced in Rojas v. Porto et al., 2019 ONSC 447, quoting from Peixeiro v. Haberman, a Supreme Court decision, “the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue…”.

[20] In this case, moreover, plaintiff knew as of the second anniversary that it should sue the known defendants – her cause of action albeit perhaps arguably uncertain, was still sufficiently accrued for an action to be commenced against those defendants. I see no principled reason in this case to have different limitation periods. After all, if plaintiff truly believes that the limitation in this case only began to run on either May 23, 2018 or October 29, 2018, it begs the question why plaintiff nevertheless commenced her action against the defendants by January 25, 2019 rather than by May 23 or October 18, 2020.

[21] Limitation periods exist for a reason. As discussed in Safi (limitation guardian of) v. Bruce N. Huntley Contracting Ltd., 2010 ONCA 545, [2010] O. J. No. 3338, it “defies common sense and is not what the discoverability rule intended to accomplish” to have variability in the limitation period when the ownership of a vehicle is not immediately known. Indeed, to have limitation periods to be, as a matter of routine, moving targets, with resulting increased disputes over when time-limits run in a particular case, would undermine the stability and predictability intended with the Limitations Act.

[22] In this case, the claim was fully discoverable within the presumptive two years from the date of accident. The evidence is clear that, only due to the regrettable inadvertence of counsel, the time-limit by when a defendant could have been added was missed. Plaintiff has not, pursuant to Higgins v. The City of Barrie, 2011 ONSC 1598 [S.C.J.], met her onus to show that it was unlikely, if not impossible, with due diligence to have confirmed that Ford owned the Castro vehicle. In fact, the evidence is not disputed that plaintiff had all necessary information within the two years of the accident, yet through inadvertence failed to act on it.

[23] For these reasons, accordingly, the plaintiff’s motion is dismissed.

[24] If counsel are unable to agree on costs they may contact ATC Mr. D. Backes at David.Backes@ontario.ca. If materials are filed for a costs argument in addition to any Costs outline, counsel are limited to three pages, each, using normal type font.

Master J. Josefo Date: February 26, 2020