Zhu v. Siew

Ontario Reports

Ontario Superior Court of Justice

Morgan J.

December 8, 2020

153 O.R. (3d) 219 | 2020 ONSC 7045

Case Summary

Actions — Bars — Abuse of process — Plaintiff pedestrian commencing action after being when struck by vehicle — Police report referring to only one vehicle, but close examination of sketch revealed presence of second vehicle — Plaintiff failing to add driver of second vehicle as defendant, so commencing second action — Defendant in second action moving for summary judgment to dismiss as abuse of process — Motion dismissed — Second action not manipulative — Discoveries could proceed in tandem with no lost time and no repetition.

Limitations — Discoverability — Reasonable diligence — Plaintiff pedestrian commencing action after being when struck by vehicle — Police report referring to only one vehicle, but close examination of sketch revealed presence of second vehicle — Plaintiff failing to add driver of second vehicle as defendant, so commencing second action — Defendant in second action moving for summary judgment to dismiss as out of time — Motion dismissed — Police report was hard to read and did not signal involvement of second driver.

The plaintiff pedestrian was struck by a vehicle in a crosswalk in February 2015. The police report referred to only one vehicle involved in the accident. About a month before the two-year limitation period expired, the plaintiff commenced an action against V, the driver of that vehicle. In April 2017, V's counsel indicated to plaintiff's counsel that careful examination of a hand-drawn diagram in the police report showed a second vehicle and that it would be V's evidence that she was caused to swerve by the presence of that second vehicle. An unredacted copy of the police report revealed that the second vehicle was driven by the defendant. The plaintiff moved to add the defendant as a party in her action against V, but V opposed the motion, which was subsequently adjourned. The plaintiff then commenced a separate action against the defendant in April 2018. The defendant moved for summary judgment to dismiss the action as being out of time or as an abuse of process.

Held, the motion should be dismissed.

The record did not establish that it was reasonable for the plaintiff to have discovered the defendant's existence more than two years before the statement of claim was issued. The version of the police report in the hands of the plaintiff's lawyer was not easy to read. It was unreasonable to think that the plaintiff's lawyer would have read and understood that it signaled the involvement of a second driver. It seemed beyond reasonable diligence to assume that another potentially at-fault driver was involved but not charged.

The action was not an abuse of process. There was nothing manipulative in the plaintiff having started the second action. Discoveries in the two actions could proceed in tandem such that no time would be lost and nothing need be repeated. Both actions were to be heard at the same time by the same trial judge.

Maynes v. Allen-Vanguard Technologies Inc., [2011] O.J. No. 644, 2011 ONCA 125, 274 O.A.C. 229, distd

Other cases referred to

Abarca v. Vargas (2015), 123 O.R. (3d) 561, [2015] O.J. No. 37, 2015 ONCA 4, 380 D.L.R. (4th) 120, 72 M.V.R. (6th) 181, 329 O.A.C. 163 (C.A.); Behn v. Moulton Contracting Ltd., [2013] 2 S.C.R. 227, [2013] S.C.J. No. 26, 2013 SCC 26, 443 N.R. 303, 43 B.C.L.R. (5th) 1, [2013] 3 C.N.L.R. 125, 357 D.L.R. (4th) 236, 333 B.C.A.C. 34, [2013] 7 W.W.R. 1; Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 106 O.R. (3d) 332, [2011] O.J. No. 3314, 2011 ONCA 522, 282 O.A.C. 372 (C.A.)

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 6.01(1), (d)

MOTION by defendant for summary judgment to dismiss an action.

Michael Kealy, for plaintiff.

Paul Omeziri, for defendant.

I. TWO VEHICLES AND TWO CLAIMS

[1] On February 21, 2015, at approximately 8:20 p.m., the Plaintiff was walking on the east side crosswalk on Midland Avenue from the north to the south side of Finch Avenue East, when she was struck by a vehicle turning east onto Finch from the right-hand northbound lane of Midland. The vehicle that struck the Plaintiff was driven by Rajani Vasanthakumar.

[2] The police provided the Plaintiff's lawyer with the police report of the accident and a redacted version of police records of the accident on November 25, 2015. That report refers to only one vehicle involved in the accident. The redacted police records contain barely legible and some entirely illegible handwritten notes of witnesses of the accident. The notes, with all that they are difficult to decipher, do not make any mention of the Defendant in this action. Ms. Vasanthakumar is identified as the only driver involved in this accident in which her vehicle collided with the Plaintiff, a pedestrian.

[3] On January 26, 2017, roughly a month before the expiry of the limitation period in respect of the accident, the Plaintiff commenced an action against Ms. Vasanthakumar: Zhu v. Vasanthakumar, Court File No. CV-17-568348 (the "Vasanthakumar Action"). On April 10, 2017, in the run-up to discoveries in the action, counsel for Ms. Vasanthakumar spoke with counsel for the Plaintiff about the evidence in the case.

[4] Counsel for Ms. Vasanthakumar pointed out that careful examination of a hand-drawn diagram contained in the police report shows that a second vehicle driving southbound on Midland and turning left onto Finch had stopped in the middle of the intersection at the time of the accident. In that conversation, Ms. Vasanthakumar's counsel advised Plaintiff's counsel that it would be her client's evidence that the southbound vehicle's left turn into the intersection is what caused Ms. Vasanthakumar to swerve to the right and strike the Plaintiff.

[5] Counsel for the Plaintiff, in turn, advised counsel for Ms. Vasanthakumar that he would bring a so-called Wagg motion against the police for production of an unredacted copy of the accident report. That motion resulted in the production of an unredacted copy of the report on September 18, 2017. The unredacted copy revealed for the first time that the southbound, left-turning vehicle in the intersection was driven by the Defendant.

[6] On October 2, 2017, the plaintiff's lawyer sent a notice letter to the Defendant. She scheduled a motion for December 7, 2017 to amend the Statement of Claim in the Vasanthakumar Action to add him as a defendant in that action. The motion was opposed by Ms. Vasanthakumar and was subsequently adjourned. Counsel for Ms. Vasanthakumar exercised various procedural rights, including cross-examinations, and the parties had a difficult time scheduling a new date for the motion.

[7] Counsel for the Plaintiff, in cross-examination in the present motion, testified that counsel for Ms. Vasanthakumar was particularly difficult in negotiating a schedule for the motion. Although it was eventually made returnable July 25, 2018, the motion to add the Defendant to the Vasanthakumar Action has never been heard.

[8] In the meantime, counsel for the Plaintiff became concerned with the passage of time, and so issued the present claim against the Defendant on April 20, 2018. With the issuance of the present claim, the Plaintiff abandoned the motion to add the Defendant to the Vasanthakumar Action. Ms. Vasanthakumar has now issued a third party claim in the Vasanthakumar Action against the present Defendant.

[9] In the result of this maneuvering, there are now two live actions addressing the identical car accident. The Defendant here moves to dismiss the present action for having been commenced beyond the limitation period and/or for being an abuse of process.

II. THE LIMITATION ARGUMENT

[10] Sections 4 and 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, read together, provide that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered or ought to have been discovered by the Plaintiff. The objective standard in the discoverability analysis is measured by the exercise of reasonable diligence by the Plaintiff in investigating the claim: Velasco v. North York Chevrolet Oldsmobile Ltd. (2011), 106 O.R. (3d) 332, [2011] O.J. No. 3314, 2011 ONCA 522 (C.A.), at paras. 7-8.

[11] The question here is whether it is reasonable that Plaintiff and her counsel only discovered the claim against the Defendant within two years of having issued the within claim -- i.e., sometime on or after April 20, 2016. In other words, if the Plaintiff and her counsel only learned of the possibility of there being a claim against the Defendant from the conversation with Ms. Vasanthakumar's counsel in April 2017 or on reading the unredacted police report in September 2017, the limitation period has not expired. For the limitation period to have expired, the Plaintiff or her counsel would have had to understand -- or ought reasonably to have understood -- that there is a claim against the Defendant when they read the accident report or redacted police report in November 2015.

[12] In a similar situation, where counsel for the plaintiff did not realize until reading a Crown brief who owned a second vehicle involved in an accident, the Court of Appeal held that it was only reasonable to wait until Plaintiff's counsel had the Crown brief in hand to start the discoverability clock running: Velasco, at para. 9. The combination of information that was at the plaintiff's counsel's disposal prior to receiving the Crown brief led the court to conclude that it had acted with reasonable diligence.

[13] Likewise, here there did not appear to be more than one at-fault vehicle involved in the accident. As the evidence stands right now, it would seem to be beyond reasonable diligence to assume that another potentially at-fault driver was involved but not charged by the police. The Plaintiff and her lawyer therefore did nothing to investigate whether another vehicle caused or contributed to her being struck until the lawyer for Ms. Vasanthakumar told her there was another vehicle.

[14] The version of the police report that was in the Plaintiff's lawyer's hands prior to that time is not easy to read. It would be a struggle to decipher even if one knew that it contained important information; without knowing that, it is unreasonable to think that the Plaintiff's lawyer would have read and understood that it signaled the involvement of a second driver. Certainly, the Defendant has not succeeded here in proving that was the case. On the evidence in the motion record, the Plaintiff and her lawyer can only be said to have definitively known about the Defendant's involvement was when the unredacted copy was received and the identity of the second driver was disclosed.

[15] The discoverability doctrine provides that the limitations clock does not start ticking until it is reasonable for the Plaintiff or her lawyer to have discovered the second driver's -- i.e., the Defendant's -- existence. The Defendant has not managed to prove that that occurred more than two years before the Statement of Claim against him was issued in April 2018. It is conceivable that evidence to that effect will emerge at trial, but there is nothing that establishes that in the record before me.

III. THE ABUSE OF PROCESS ARGUMENT

[16] The Defendant argues that allowing two actions to remain in play in respect of the same car accident requires him to answer the same case twice -- i.e., as Defendant in this action and as Third Party in the Vasanthakumar Action. It is the Defendant's position that litigating the accident twice in this way amounts to an abuse of the court's process.

[17] The doctrine of abuse of process reflects the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party appearing before it or that would in some other way bring the administration of justice into disrepute: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227, at paras. 39 and 40. In raising the abuse of process argument, the Defendant relies on Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, where the court found that re-litigating the identical transaction amounted to an abuse.

[18] The sequence of events in Maynes, however, was different in a significant way from the sequence of events here. In Maynes, the Plaintiff commenced the second action after discoveries were already complete in the first action, seemingly to allow for further discoveries on issues that had not been pleaded the first time around. The Court found that since the second claim could have been pleaded from the beginning when the first claim was issued, the second claim was abusive and deserved to be stayed.

[19] In the present case, there is nothing manipulative in the Plaintiff having started the second action in the sense of the proceedings in Maynes. Counsel advise that discoveries in the two actions here can proceed in tandem so that no time will be lost due to the second action and nothing need be repeated as between the two actions.

[20] While it would be procedurally preferable for the entire matter to be litigated under the rubric of a single action, nothing in the law of abuse of process requires that one or the other be stayed. The Court of Appeal explained in Abarca v. Vargas, 2015 ONCA 4, at para. 29, that there is "no law supporting the conclusion that an abuse of process must lead inevitably to the dismissal of the associated claim. In each case the court must assess the gravity of the abuse in determining the severity of its response, bearing in mind the principle of proportionality".

[21] Rule 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990a Reg. 194 provides:

6.01(1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other[.]

[22] The solution to any factual or legal overlap between the two claims is to follow the guidance of rule 6.01(1)(d). The two proceedings can proceed in tandem so that no time or resources need be wasted on there being two actions against two drivers instead of including both drivers in the same action.

IV. DISPOSITION

[23] The Defendant's motion for summary judgment is dismissed.

[24] This action and the Vasanthakumar Action shall be heard at the same time by the same trial judge. The evidentiary record in each action will form part of the evidentiary record in the other such that there is no need to repeat any evidence as between the two actions. Further, the implied undertaking rule does not apply as between the two actions, so that discoveries in either action can be used as discoveries in the other.

[25] Costs of this motion shall be in the cause.

Motion dismissed.