ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20200928
BETWEEN:
WILLIAM SAMSON HUANG, DAVANH HUANG, RICHARD HUANG and CHYNNA HUANG
Plaintiffs
-and-
TOME RICARDO FILIPE CARDOSO, and-L&L LEASING SERVICES LTD., and CANADA POST CORPORATION
Defendants
Daniel Zacks, for the Plaintiffs
Aaron S. Murray and David Edwards for the Defendant Canada Post Corporation
HEARD: September 24, 2020
F.L. Myers J.
Reasons for Judgment
The Motion
[1] Canada Post moves for partial summary judgment to dismiss the action against it on the basis that the plaintiff commenced the action after the expiry of the limitation period under ss. 4 and 5 of the Limitations Act, 2002, SO 2002, c 24, Sched B.
[2] For the reasons that follow, the motion is granted and the action against Canada Post is dismissed.
The Facts
(i) The Accident
[3] The diagram above describes the scene of the motor vehicle accident that is the basis for this lawsuit.
[4] On December 15, 2010, the plaintiff William Huang was driving eastbound on Connell Court towards Horner Avenue in Toronto. Mr. Huang intended to make a left turn to go north on Horner Avenue. As he approached the intersection, he came upon a Canada Post truck that was parked along the south side of Connell Court at the corner. The driver was servicing a mailbox at the southwest corner of the intersection.
[5] Mr. Huang moved around the postal truck and “inched” into the intersection. The postal truck was blocking his view of northbound traffic coming from the south (Mr. Huang’s right). Mr. Huang pulled into the intersection to make his left turn and drove right into the path of a dump truck that was driving southbound on Horner Avenue.
[6] Mr. Huang has no recollection of the accident that ensued. The bulk of the evidence concerning the recitation of facts above is taken from police reports and interviews with the eyewitness Elmer Morato. Mr. Morato was also driving eastbound on Connell Court at the time of the accident. His car was behind Mr. Huang’s car. Mr. Morato witnessed the accident and was interviewed by the police at the scene.
(ii) This Lawsuit
[7] The plaintiffs retained personal injury lawyer Michelle Simard to act for them in relation to the collision. Ms. Simard does not know when the plaintiffs retained her. She agrees that she knew from the time that she was retained that Mr. Huang was not able to tell her the facts. Ms. Simard knew therefore that she was required to undertake investigations to determine the facts.
[8] There is an unsigned letter in Ms. Simard’s file addressed to the Toronto Police that requests a copy of the police report, officers’ notes, witness statements, and the reconstruction report of the collision. The letter is dated April 11, 2011. Ms. Simard confirms that she must have been retained by that date.
[9] Ms. Simard does not know when she actually sent the letter.
[10] Ms. Simard commenced this lawsuit on June 29, 2011. She initially sued only the driver and the owner of the dump truck. She did not sue Canada Post at that time.
[11] On February 24, 2012, Ms. Simard wrote again to the Toronto Police asking for reconstruction measurements and photographs of the accident scene. She made these requests to assist a forensic engineer whom she had retained on February 7, 2012.
[12] On February 27, 2012, Ms. Simard made her first effort to contact the witness Elmer Morato. As discussed below, he is identified in the police officer’s report and the reconstruction report that the police provided to Ms. Simard.
[13] Once again, Ms. Simard is not able to identify the relevant dates from her file apart from drawing inferences from her actions. She accepts that she must have had the police report and the reconstruction report before she acted on them by trying to contact Mr. Morato on February 27, 2012. On that basis, she accepts that she must have sent her letter dated April 11, 2011 asking for those materials sometime between April 11, 2011 and her receipt of the documents from the police sometime around February 27, 2012. She confirms that she read the police reports right around the time that she received them.
[14] For the purposes of this motion, counsel for the parties agree that February 27, 2012 is a date on which Ms. Simard can be fixed with the knowledge of the facts set out in the police reports.
[15] Ms. Simard’s lack of file detail makes her evidence unreliable in my view. No one can reasonably be expected to remember precise dates of mundane actions taken in the usual and ordinary course of business without contemporaneous notes. In addition, that Ms. Simard is a lawyer without any contemporaneous file notes raises credibility concerns with her evidence as discussed below.
(iii) The Police Officer’s Notes and the Reconstruction Report
[16] The police officer’s notes and the reconstruction report identified Mr. Morato. They also identified the Canada Post truck and say that it possibly blocked Mr. Huang’s view to the south. The reports describe Mr. Huang “inching” into the intersection before turning left into the path of the oncoming dump truck.
[17] The report concludes that Mr. Huang could have prevented the collision by waiting for the dump truck to pass. It does not say conclusively whether the Canada Post truck caused or contributed to Mr. Huang’s injuries. Ms. Simard says in her affidavit that:
- Give this inconclusiveness, I did not consider that I could reasonably commence an action against Canada Post based on the Reconstruction Report alone. I was particularly concerned about the adverse costs consequences to the plaintiffs that could flow from groundless litigation. Mr. Huang was 54 at the time of the accident and
the injuries he sustained will prevent him from ever working again. The accident benefits he obtained left him with just $1,000,000 to support him for the rest of his life. An adverse costs award could therefore gravely impact on Mr. Huang's future wellbeing. I could not expose Mr. Huang to this risk on mere suspicion.
(iv) The Interview of Mr. Morato
[18] After reviewing the police reports, Ms. Simard sent investigators to interview Mr. Morato. In a report dated May 25, 2012, the investigators reported to Ms. Simard that:
a. The postal truck was a Canada Post truck;
b. It was parked at the southwest corner of Connell Court facing east (that is, facing oncoming traffic, including Mr. Huang's vehicle), and at an angle that blocked Mr. Huang's lane and his view of traffic travelling northbound on Horner Avenue; and,
c. In his estimation, the Canada Post truck caused Mr. Huang's accident.
[19] As a result of this information, Ms. Simard testified that:
- These facts allowed me to determine, for the first time, that Mr. Huang had a cause of action against Canada Post:
a. I knew that Canada Post was the owner of the postal truck;
b. I knew that Canada Post had acted wrongly in stopping at the southwest corner of Connell Court, because municipal bylaws do not permit stopping at that location; and,
c. I knew that Canada Post's wrongful conduct had contributed to Mr. Huang's accident. By obscuring Mr. Huang's view of traffic travelling north on Horner Avenue, the Canada Post truck obliged Mr. Huang to drive into the intersection to obtain a clear view. This impaired his ability to see the approaching dump truck and avoid a collision.
[20] In their factum and in oral argument, counsel for the plaintiff rely upon an additional fact. The investigators quote Mr. Morato as having told them that when Mr. Huang inched into the intersection, he paused for a second or two before making his turn. Although Ms. Simard did not mention the pause in her evidence, they argue that this new fact – the pause for a second or two – changes the reasonable, objective view of Canada Post’s involvement, from mere suspicion, to knowledge of a cause of action.
(v) The Commencement of the Claim against Canada Post
[21] Ms. Simard served a motion to add Canada Post as a defendant on March 26, 2014. The Master allowed the amendment without prejudice to Canada Post’s entitlement to plead and rely on the limitation period in its statement of defence.
The Issue
[22] For the purposes of the limitation period, counsel agree that the action against Canada Post will be deemed to have commenced on March 26, 2014.
[23] If the plaintiff discovered the cause of action against Canada Post on May 25, 2012 when Ms. Simard read the investigator’s report summarizing Mr. Morato’s interview, then the claim was commenced within two years of being discovered.
[24] If the plaintiff discovered the cause of action against Canada Post on February 27, 2012, when Ms. Simard read the police reports and tried to contact Mr. Morato, then the action was commenced more than two years later and is out of time.
The Law
(i) Partial Summary Judgment
[25] Both counsel agree that this case should be resolved by way of summary judgment one way or the other. They have both adduced all the evidence that they have. Ms. Simard has been cross-examined.
[26] The plaintiffs do not want to incur more costs by requiring Canada Post to go to trial if it is going to succeed on its limitation period defence. Doing so adds to the cost and time required to conduct examinations for discovery and adds greatly to the quantum of costs for which the plaintiff will likely be liable if Canada Post succeeds at trial.
[27] By contrast, Canada Post wants to be free of this lawsuit as soon as possible if it has a good limitation defence. It does not want to incur the unrecoverable costs that will not be indemnified in the ordinary circumstance even if it succeeds at trial. A defendant that succeeds at trial is only entitled to partial indemnity for its costs. A minimum of 40% of its costs will likely remain unrecoverable. Rule 49 generally does not help a defendant who succeeds in full.
[28] Accordingly, both parties agree that it is in their interests to resolve this issue as quickly and affordably as possible.
[29] However, the court is not entitled to simply accept the parties’ view on whether summary judgment is available. When parties agree that the court can find the facts and apply the law without further steps being undertaken, the judge must undertake an inquiry of whether other steps are required. Gordashevskiy v. Aharon, 2019 ONCA 297 at para. 6.
[30] Summary judgment to release one of several defendants from a case is a form of partial summary judgment. In Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34, Pepall J.A. set the test for partial summary judgment as follows:
A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.
[31] The issue for me then is whether the question of the limitation period can be readily bifurcated from the issues that may remain for trial or whether there is any risk of inconsistent verdicts and duplication of evidence between this motion and a possible future trial.
[32] There is no doubt that I have heard much evidence about the cause of the accident. The cause of the accident will be the subject of the trial. However, none of that evidence was presented on this motion in an admissible, firsthand basis. The evidence concerning the cause of the accident was not presented for the truth of its contents. Rather, it was presented to show what Ms. Simard, the plaintiff’s agent, knew at relevant dates as compared to the date that she commenced the claim against Canada Post. I am not asked to make any finding on the cause of the accident.
[33] If I grant summary judgement one way or the other, as asked by the parties, either Canada Post will be removed from the lawsuit or its limitation period defence will be ended with finality. Either way, the question of what Ms. Simard knew will not be the subject of evidence or findings at a future trial if there ever is one.
[34] But what happens if I let Canada Post out and the trial judge finds that it should have borne some liability on the merits? In my view, that is not an inconsistent decision. There is nothing inconsistent about a finding that someone who might otherwise have been held liable had she been sued in time has a defence under the Limitations Act, 2002. The finding of possible liability does not conflict with nor undermine the finding that the limitation period was missed.
[35] In my view, the issue of Canada Post’s limitations defence is a discrete issue that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner. Therefore, partial summary judgment is not precluded in this case.
[36] There still remains the question that is always in issue in summary judgment cases, whether it is in the interests of justice to find the necessary facts and apply the applicable law in a summary manner on this motion.
[37] If, for example, I am required to make a finding on the credibility of Ms. Simard’s evidence, then summary judgment will not be available on the written record alone. However, Rule 20.04 (2.1)(2) authorizes the court to evaluate the credibility of a deponent of affidavit evidence on a motion for summary judgment. It is one of the expanded powers that can only be used when doing so is not contrary to the interests of justice. See: Hryniak v Mauldin, 2014 SCC 7, at para. 66. As described by the Supreme Court of Canada:
Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[38] I will return to this analysis once I have determined what findings are required to make the assessments sought by the parties.
(ii) When is a Cause of Action Discovered?
[39] Section 4 of the Limitations Act, 2002 sets the basic limitation period of two years as follows:
4 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.
[40] Section 4 begs the question of when is a claim “discovered” so as to start the two-year clock. That question is answered by s. 5(1) of the statute as follows:
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).
[41] The plaintiff argues that for s. 5 (1)(a) to apply, the plaintiff needs actual knowledge of the matters listed in each subsection. Mere suspicion is not enough. While certainty is not required, something more than suspicion is. Crombie Property Holdings Limited v McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16 at para. 42.
[42] Canada Post argues that the police documents contained the facts necessary for the plaintiff to have prima facie knowledge that the Canada Post truck caused or contributed to the accident. The plaintiff argues that this is drawing a conclusion from the police reports that the authors themselves did not draw. In addition, it is contrary to Ms. Simard’s evidence of what she actually thought at the time.
Analysis
(i) When did Ms. Simard Discover the Cause of Action?
[43] In para. 14 of her affidavit, quoted at para. 20 above, Ms. Simard says, first, that she learned from the interview with Mr. Morato that the truck was owned by Canada Post. That fact was contained in the initial police reports. Mr. Morato was not giving a title opinion. He told the police that he saw a Canada Post truck and repeated that to the investigators. Ms. Simard knew this fact when she read the reports on February 27, 2012.
[44] Ms. Simard then says that she learned from the witness interview that the Canada Post truck was unlawfully close to the intersection. Interestingly, she makes no mention in her affidavit that it was facing the wrong way. The breach of law upon which she may base an argument of breach of duty was the location of the truck. That fact too was known to her from the police reports. Mr. Morato said nothing new or different in his May 2012 interview on this fact.
[45] The only other fact that Ms. Simard says she learned in the interview of Mr. Morato was that he felt that the Canada Post truck had caused the accident. That was a legal conclusion that he drew, as a lay person, from the facts otherwise known. It is worth repeating what Ms. Simard said in para. 14 (c) of her affidavit concerning the conclusion that she reached:
(c) I knew that Canada Post's wrongful conduct had contributed to Mr. Huang's accident. By obscuring Mr. Huang's view of traffic travelling north on Horner Avenue, the Canada Post truck obliged Mr. Huang to drive into the intersection to obtain a clear view. This impaired his ability to see the approaching dump truck and avoid a collision.
[46] She knew all of this from the police reports. The obstructed view and “inching” into traffic are plainly set out. On Ms. Simard’s evidence, there is nothing new said in the May 2012 witness interview to cause the scales to fall from her eyes.
[47] The fact that the police did not comment on Canada Post’s liability is no more of interest than that Mr. Morato did. The question is what facts Ms. Simard knew. Whether she, the police, or Mr. Morato appreciated the legal significance of the facts is not the issue. See: Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, at para. 146 (e).
[48] As mentioned previously, the plaintiff’s counsel found a new fact before the hearing and argued that the fact that Mr. Huang paused for a second or two before turning established Canada Posts’ likely liability beyond mere speculation. The argument is creative no doubt; but it does not pass the giggle test. By “inching” forward, Mr. Huang is showing that he cannot see sufficiently to let him proceed with his turn. His view to the north was unobstructed. His view to the south was obstructed. The “inching” could only be due to the Canada Post truck blocking his view. Mr. Huang obviously did not look to his left. Perhaps he was distracted by having to look so intently to his right. Perhaps. But pausing while “inching” adds nothing to the analysis to point a finger of liability at Canada Post that is not already pointed by the known facts.
[49] Ms. Simard testifies that she needed more information before subjecting Mr. Huang to the risk of an adverse costs award in favour of Canada Post. That is not consistent with her behaviour towards the other defendants.
[50] Ms. Simard sued the driver and owner of the dump truck in June, 2011, presumably before she had received any information from the police. She had no indication that they bore any liability for causing the accident at that time. All she knew is that Mr. Huang pulled out from a stop sign right into the path of oncoming traffic. If she was concerned for the plaintiffs’ costs risk or that she needed some greater assessment of causation or certainty of liability before suing, she did not show it when she started the claim.
[51] As Ms. Simard confirms that she learned of the cause of action from the May 2012 interview with Mr. Morato. The facts that she relies upon to have given her that knowledge were all known to her from the police reports on February 27, 2012, I do not accept that she did not know the essential elements of the cause of action against Canada Post at the earlier date. I find that she did know. I would reject her claim that she was concerned about costs as it is inconsistent with her own actions towards the other defendants.
[52] Moreover, if Ms. Simard did not know the essential elements of the cause of action against Canada Post on February 27, 2012, I find that she ought to have known them because they were all contained in the police reports. The argument can only be that since Canada Post was blocking his southern view, Mr. Huang became distracted looking south and failed or forgot to look north. How strong this argument is will be decided at trial. But the facts that make up the breach of duty and causation allegations, such as they are, were all available to counsel in the police reports and did not change in the witness interview.
[53] Certainty of liability is not the test. Rather, looking at s. 5 (1)(a)(ii) of the Limitations Act, 2002, either Ms. Simard knew on February 27, 2012 that the Canada Post truck had caused or contributed to the plaintiff’s injuries or under s. 5(1)(b) a reasonable lawyer ought to have known it.
[54] Either way, the plaintiff discovered the cause of action against Canada Post by February 27, 2012.
(ii) Summary Judgment
[55] Arguably, I can resolve the questions in issue from the record alone. All of the facts needed to know that to the extent that the plaintiff has a cause of action against anyone, he has one against Canada Post, were in the police reports in February 2012.
[56] But Ms. Simard swears that this was not enough for her to have the requisite knowledge. For me to be prepared and entitled to consider rejecting her evidence, the use of the authority to do so must “serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”
[57] There is a certain circularity to that test. The perspective of “the litigation as a whole” harkens back to Butera and an analysis of whether there are risks of inconsistent verdicts and duplication of evidence at trial. I have already found that if the limitation issue is resolved, there will be no issue at trial as to when the plaintiff discovered his cause of action against Canada Post. Neither will that issue be part of any other question before the trial judge as far as counsel or I am aware.
[58] But the assessment of the litigation as a whole also concerns whether summary judgment is an appropriate and fair manner to resolve the dispute more generally. For example, is this case an appropriate one to be resolved by affidavit evidence? Affidavits can obscure a witness’s voice because they are drawn by counsel. In some cases, the nature of the dispute may require the disputants to face-off in open court and be subjected to cross-examination to let the judge take the full measure of the witnesses under the weight of intense cross-examination. Cross-examination is the best device that we have for ascertaining the truth from contested evidence. However, sometimes, repeating at trial evidence already given out of court under cross-examination would be a waste of time. Witnesses are pinned to their out of court testimony and cannot be expected to change their evidence at a later trial. Moreover, it is also the case that often a witness’s authentic voice can be heard in out of court cross-examination even if it might have been obscured in the affidavit evidence.[^1]
[59] In Cook v. Joyce, 2017 ONCA 49, the Court of Appeal held that summary judgment was not appropriate in a limitation period case that turned on credibility. The court noted at para. 92:
The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record.
[60] In this case, credibility is not the fundamental issue. Whether Ms. Simard knew the precise details or not, as I have found that a reasonable person in her position ought to have known them, s. 5 (1)(b) applies regardless of any credibility finding.
[61] Moreover, the issue of whether Ms. Simard had enough information to say that she knew the facts and was not just speculating is one of judgment rather than objective fact. Ms. Simard’s affidavit turns on an ex post facto or 20:20 hindsight assessment of the precise state of her knowledge at precise dates. Given her lack of notes and her self-interest in the outcome, her affidavit is too self-serving and too devoid of details to be treated as a reliable or credible statement of precise history. I have already noted above where her retrospective assessments appear to be inconsistent with her own statements and actions. I do not accept Ms. Simard’s view that she only discovered the facts that amounted to a cause of action against Canada Post after the May, 2012 interview of Mr. Morato.
[62] Finally, I find that Canada Post has proven that there is no serious issue requiring a trial. This is not a case where an assessment of the concerns associated with the litigation as a whole would preclude summary judgment. Rather, I am satisfied that it is fair and in the interests of justice to find the facts and apply the law to the facts as found. I also find that this is an appropriate case to draw inferences and to make credibility findings to the extent necessary to do so, for the reasons previously given.
Outcome
[63] The plaintiffs’ claims against Canada Post is therefore dismissed.
[64] Canada Post may file costs submissions by October 5, 2020. The plaintiffs may deliver their costs submissions by October 12, 2020. The submissions of all parties shall be accompanied by Costs Outlines and copies of any offers to settle on which they rely. The submissions may be no more than three pages long. No case law or statutory material is to be delivered. References to case law or statutory material, if any, shall be made as hyperlinks in the parties’ submissions. All documents shall be delivered as attachments to an email to my Judicial Assistant in OCR searchable PDF format and uploaded into the Caselines folder made available for this case.
F.L. Myers J.
Released: September 28, 2020
DATE: 20200928
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM SAMSON HUANG, DAVANH HUANG, RICHARD HUANG and CHYNNA HUANG
Plaintiffs
-and-
TOME RICARDO FILIPE CARDOSO, and-L&L LEASING SERVICES LTD., and CANADA POST CORPORATION
Defendants
REASONS FOR JUDGMENT
F.L. Myers J.
Released: September 28, 2020
[^1]: Enterprise Rent-A-Car Canada Company v. The Minister of Finance, 2020 ONSC 5339