Court File and Parties

COURT FILE NO.: CV-19-142772

DATE: 20201008

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alina Codreanu, Plaintiff

AND:

Rosella Choi and Joseph Lai, Defendants

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Tajinder Gogna, Counsel, for the Plaintiff Benjamin Hutchinson, Counsel, for the Defendants, Rosella Choi and Joseph Lai Kyle Duncan, Counsel, for the proposed Defendant, Cheryl-Lynn Kelly

HEARD: In-Writing – October 8, 2020

ENDORSEMENT

[1] The plaintiff in this motor vehicle accident claim, Alina Codreanu, brings this motion in writing for an order granting leave to amend the Statement of Claim to add Cheryl-Lynn Kelly (Kelly or the proposed defendant) as a defendant.

Facts

[2] The motor vehicle accident at issue occurred on November 23, 2017 on Highway 404 in Ontario. The plaintiff alleges that she was struck from behind by Kelly’s vehicle, which had just been struck by the vehicle being driven by the defendant Choi.

[3] The plaintiff’s action was commenced by issuance of a Statement of Claim on November 21, 2019. The plaintiff named Rosella Choi and Joseph Lai as the defendants to the action. Choi was the driver of one of the vehicles involved in the motor vehicle accident, and Lai was the owner of the vehicle being driven by Choi.

[4] If the limitation period began to run on the date of the accident, the action against the defendants Choi and Lai was commenced just two days shy of the expiration of the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sch.B.

[5] The defendants Choi and Lai delivered a Statement of Defence and Jury Notice on January 13, 2020. The Statement of Defence was accompanied by a letter from counsel for the defendants which stated:

My review of the file indicates there was a third motor vehicle involved in the accident, operated by a Cheryl-Lynn Kelly…This individual has not been named. Please confirm that you will be amending your pleadings to add this person as a defendant in the action.

[6] The plaintiff’s counsel has filed an affidavit in support of this motion, stating that her law firm made multiple attempts to try to procure a copy of the Motor Vehicle Collision Report. The first attempt was on March 13, 2018, the second on August 24, 2018, and the final attempt on June 6, 2019.

[7] The proposed defendant opposes the proposed amendment on the basis that the plaintiff is statutorily barred from adding her as a party to the within action because the applicable limitation period has expired.

[8] The proposed defendant notes that the plaintiff (and her lawyer) was aware of her identity and involvement in the motor vehicle accident well before her counsel received the Statement of Defence and correspondence on January 13, 2020. On October 21, 2019 (one month before the Statement of Claim was issued), the plaintiff’s lawyer provided Kelly’s insurer with notice of the plaintiff’s intention to commence an action for the motor vehicle accident. On November 21, 2019, Kelly’s insurer responded to that letter, confirming that Kelly was involved in the motor vehicle accident, was insured by them and their intention to defend the action.

[9] When the action was commenced by the plaintiff on November 21, 2019, the action did not name Kelly as a defendant.

Issue

[10] The first issue on this motion is when did the plaintiff actually discover the claim against Kelly? Only if the date of actual discovery was some date after the date of the accident does the issue arise as to when, with reasonable diligence, the plaintiff’s claim against Kelly ought to have been discovered.

Analysis

[11] Subrule 5.04 (2) provides as follows:

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[12] Subsection 21(1) of the Limitations Act, 2002, is also relevant. This subsection provides as follows:

If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[13] Unlike amendments to pleading made under Rule 26.01, a motion under Rule 5.04(2) to add a party after the apparent expiration of a limitation period is discretionary. As the Court of Appeal stated in Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at para. 14:

Contrary to the appellants’ argument, the motion was not akin to a rule 26.01 motion to amend a pleading, which “shall” be granted absent compensable prejudice. Rather, a rule 5.04(2) motion to add parties and, in this case, to add parties after the apparent expiration of a limitation period, is discretionary. While the threshold on such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.

[14] In Arcari v. Dawson, 2016 ONCA 715, at para. 7:

Pursuant to s. 21 of the Limitations Act, S.O. 2002, c. 24, Schedule B, the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action: Joseph v. Paramount Canada’s Wonderland, 2008 ONCS 469, at paras. 26-28. Subject to the statutory exceptions from the general rule, none of which are at issue in this case, that bar arises immediately after the second anniversary of the day the claim was discovered (s. 4).

[15] Section 4 of the Act sets out the two-year limitation period applicable to this action. Section 4 provides as follows:

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.

[16] It appears from the plaintiff’s counsel’s affidavit that she is taking the position that the plaintiff did not, and could not have, discovered or identified the proposed defendant until she received the Statement of Defence and letter from the defendant’s counsel on January 13, 2020.

[17] Section 5 of the Limitations Act sets out the principles governing the discoverability doctrine. Section 5 provides as follows.

(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.

[18] In Arcari, the Court of Appeal explained how a court should approach this kind of question in a motion to add a defendant after the expiry of the limitation period, at para. 10:

When a plaintiff’s motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff’s motion (Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

[19] Section 5(2) creates a presumption that a claimant acquired knowledge of his or her claim on the date the act or omission on which the claim is based took place. In this case, by reason of s. 5(2), in the absence of evidence to the contrary, the plaintiff was presumed to have discovered the material facts on which her claim against Kelly was based on the day that the motor vehicle accident took place: Miaskowski v. Persaud, 2015 ONCA 758, at para. 24; Placzek v. Green, 2009 ONCA 83, at para. 23.

[20] In Morrison v. Banzo, 2018 ONCA 979, the Court of Appeal stated, at paras. 31 and 32:

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) 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 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. 32

Second, the plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff's explanation should be given a “generous reading”, and considered in the context of the claim: Mancinelli, at paras. 20 and 24.

[21] In the present case, the plaintiff’s counsel’s affidavit makes no reference to her letter to Kelly’s insurer on October 21, 2019. While her affidavit is structured to suggest that the plaintiff’s claim against Kelly was not discovered until receipt of the Statement of Defence and correspondence of January 13, 2020, it does not actually come right out and say this. Indeed, given the plaintiff’s October 21, 2019 notice of intention to commence an action against Kelly, such a position would be untenable. Reading the affidavit as a whole, the plaintiff has failed to lead any evidence that that the discovery of her claim against the proposed defendant was any date other than the date of the accident.

[22] There is no suggestion in the affidavit filed in support of the plaintiff’s motion that the identity of Kelly was not known on the date of the accident. There is no explanation as to why the plaintiff sent Kelly a notice of action on October 21, 2019 but did not include her in the Statement of Claim one month later. There is no statement as to when or how the identity of the proposed defendant became known to the plaintiff. There is nothing linking the request for or the receipt of the Motor Vehicle Collision Report to the plaintiff’s knowledge of the proposed defendant’s identity. The plaintiff’s counsel’s affidavit is an attempt to obfuscate the chronology without directly addressing the key facts necessary to succeed on this motion.

[23] This leaves the court without any indication from the plaintiff’s counsel as to when the claim against Kelly was actually discovered. The plaintiff’s failure to address this question means that the presumption in s. 5(2) of the Limitations Act applies, and the plaintiff is presumed to have discovered the action against Kelly on the date that the accident occurred: November 23, 2017. Accordingly, the plaintiff’s limitation period with respect to the motor vehicle accident and her claim against Kelly expired on November 23, 2019.

Conclusion

[24] In my view, the affidavit filed by the plaintiff’s counsel does not provide the minimum information necessary to succeed on a motion to add the proposed defendant after the expiration of the limitation period, and the plaintiff’s motion is dismissed.

[25] If the parties are not able to agree on costs, the proposed defendant may serve and file costs submissions of no more than 3 pages plus costs outline within 20 days of the release of this decision, and the plaintiff may serve and file responding submissions on the same terms within a further 15 days thereafter.

Justice R.E. Charney

Date: October 8, 2020