COURT FILE NO.: CV-18-3143 (Brampton)

DATE: 20210416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVEN ZEPPIERI by his Litigation Guardian,

ROBERTO ZEPPIERI, DAVID ZEPPIERI, ANNA ZEPPIERI and

ROBERTO ZEPPIERI, personally

Plaintiffs

-and-

TAHIRA SHAHID, BALBIR MANN,

THE CORPORATION OF THE CITY OF BRAMPTON,

THE CORPORATION OF THE REGIONAL MUNICIPALITY OF PEEL, LH INVESTMENTS INC., JASON ROQUE INVESTMENTS INC., MARIO ROQUE INVESTMENTS INC., and AARON ROQUE INVESTMENTS INC.

Defendants

B. Pickard, for the lawyers for the plaintiffs

J. Hirsh, for the proposed defendants Sunnycliffe

T. Horton, for the proposed defendants TACC

R. Antoniuk, for the proposed defendants Signz N’ Designz

Heard: December 16, 2020 by video conference

Chown J.

REASONS FOR DECISION

[1] In this motor vehicle accident case, the plaintiffs move to amend the statement of claim to add parties. The presumptive two-year limitation period has passed. Each of the three proposed defendants has a different basis to argue that the plaintiffs ought to have discovered their claims against them within the presumptive limitation period, and on this basis they each oppose the motion.

Background

[2] The accident occurred on July 30, 2016. The plaintiff David Zeppieri was the driver of a westbound vehicle. His brother, the plaintiff Steven Zeppieri, was his passenger. Both brothers were injured. Both make FLA claims in respect of the other. Their parents Roberto and Anna Zeppieri also make FLA claims.

[3] The statement of claim was issued on July 26, 2018, just within the two-year presumptive time limit.

[4] The defendant driver Shahid was the southbound driver of the other involved vehicle, which was owned by the defendant Mann. Shahid and Mann did not participate in this motion.

[5] The defendants LH Investments Inc., Jason Roque Investments Inc., Mario Roque Investments Inc., and Aaron Roque Investments Inc. are alleged to have owned or occupied the land on the northeast corner of the intersection. They are jointly represented. It is alleged they were a residential subdivision on this land. The primary allegation of negligence against these defendants is that they allowed vegetation to grow on their lands which impaired the sightlines for drivers. There are no allegations against these defendants, in either the existing or the proposed amended statement of claim, that they erected signs which interfered with sightlines or that they allowed signs to be erected that interfered with sightlines. Later in these reasons I refer to these four defendants collectively as “the developer defendants.” Two of these defendants, LH Investments Inc. and Jason Roque Investments Inc., were allegedly partners in a home construction business operating under the business name of “LIV Communities.” The other two, Mario Roque Investments Inc. and Aaron Roque Investments Inc., were allegedly partners in a home construction business operating under the business name “Landmart Homes.”

[6] The City of Brampton was the road authority. The allegations against it include that it owned or occupied the land on the northeast corner of the intersection and that it allowed vegetation to grow around the intersection. The allegations are broad and primarily focused on failing to address vegetation growth, but also allege failure to have or to enforce standards for monitoring sight lines at roadways and intersections, and failing “to establish appropriate signage.”

[7] Brampton delivered a statement of defence denying all liability. It issued a third party claim naming parties it alleged were responsible for home construction projects taking place on the northeast corner of the intersection, and for erecting signs there. That third party claim was issued on February 13, 2019. It alleges that the actions of the third parties “obstructed the visibility triangle at the Intersection, and interfered with the view of motorists approaching the Intersection.”

[8] In this motion, the plaintiff seeks to add some of the third parties as defendants. The proposed amended statement of claim mimics the allegations that Brampton has made against the third parties.

Proposed Defendants

[9] The existing statement of claim incorrectly identifies Brampton and the developer defendants as the registered owner of the land at the northeast corner of the intersection. While there may be some complexity to the parceling of the land, it appears the proposed defendant Sunnyclifffe Investments Inc. owned the most significant parcels of the land in question. Sunnycliffe says this was readily discoverable at the time of the accident had the plaintiffs done diligent property searches.

[10] The proposed defendant TACC Construction Ltd. was involved in the construction of the subdivision. There are two other proposed defendants that are apparently related companies to TACC Construction Ltd. For purposes of this motion, I have treated these three companies as one entity, as the parties appear to have done. A sign at the intersection that said “TACC Construction Ltd.” is alleged to have contributed to the visibility problem. The proposed amended statement of claim also asserts that TACC allowed vegetation to grow that obstructed sightlines, and that it obstructed sightlines through its construction activities, including placing fill and altering the grade at the intersection. TACC says that because of the sign, its alleged involvement was readily discoverable by a site visit.

[11] The proposed defendant Signz N’ Designz Inc. designed and erected a sign which advertised the development. It is alleged in the proposed amended statement of defence that this sign interfered with sightlines at the intersection. Signz was contracted by Landmart Homes to erect this sign. Although Signz’s involvement in erecting the sign may not have been discoverable by a site visit alone, Signz says that the plaintiffs did not exercise due diligence in trying to ascertain who designed and erected the sign. Signz says there were avenues of investigation to identify it, but the plaintiffs did nothing.

Plaintiff’s Discovery of the Claims against the Proposed Defendants

[12] The motion materials include three affidavits sworn by Michael Bennett, the lawyer retained by the plaintiff, and the transcript of his cross examination.

Claim against Sunnycliffe

[13] Mr. Bennett first learned that Sunnycliffe owned the property at the northeast corner of the intersection on January 30, 2019 by way of a letter from counsel for the developer defendants. The letter said that the developer defendants purchased residential lots in the subdivision on a per lot basis; however, Sunnycliffe owned the wider subdivision. Sunnycliffe dealt with all requirements external to the lot lines of the residential lots.

[14] Prior to issuing the claim, Mr. Bennett had a clerk in his office conduct a property search. The parcel register from that search is dated July 25, 2018, the day before the claim was issued. In the field for “owners’ names”, the parcel register states: “The Corporation of the City of Brampton.” The parcel register also contains a remark, “Recently: Subdivision from 14215-0262.”

[15] To a person with the requisite knowledge, this remark indicates that further information is available by retrieving the Parcel Register for PIN 14215-0262. Following this clue and conducting additional searches of records available on Teraview would have led to the discovery that Sunnycliffe was the owner of the subdivision on the date of the accident. However, Mr. Bennett did not know of this.

Claim against TACC and Signz

[16] Mr. Bennett first learned of the involvement of TACC and Signz when he received and read the third party claim of Brampton on February 21, 2019.

[17] As noted above, TACC says its involvement was discoverable by a site visit. It also says its sign is visible in photos in the police accident reconstruction report that Mr. Bennett received before the limitation period expired and is visible in Google Maps street view imagery.

[18] Although Mr. Bennett did not personally do a site visit, prior to issuing the claim he had an engineer, Scott Walters, do one. He discussed the site with Mr. Walters on the phone on July 23, 2018. Mr. Walters helped him do street view searches on Google Maps to assist in visualizing the intersection. Mr. Walters then sent him screen shots of street views from Google Maps. These depicted the Signz sign at different dates. In 2014, the sign advertised Landmart Homes. In 2015, the sign advertised LIV Communities. I infer that Mr. Bennett included the developer defendants in the original statement of claim because, based on the sign, there was evidence that they might be owners or occupiers of the land.

[19] The Google street view imagery that Mr. Walters sent to Mr. Bennett did not include images of the TACC sign. Mr. Bennett testified he did not see the TACC sign when he was exploring the intersection with Mr. Walters on Google Maps. At the time, he did not know how to do searches on Google Maps for historical street view imagery. He made no note of any discussion with Mr. Walters about TACC. He did not contemplate suing TACC at that time.

[20] The original/existing statement of claim does not reference the TACC sign or the Signz sign or assert that these signs obstructed sightlines. The claim focuses its concerns about sightlines on vegetation.

TimelIne

[21] The accident occurred on July 30, 2016. The plaintiffs retained Mr. Bennett on August 26, 2016. Mr. Bennett obtained the complete police file, including a black and white copy of the police accident reconstruction report, on January 17, 2018. Mr. Walters conducted his site visit sometime between June 25 and July 23, 2018. Mr. Walters spoke to Mr. Bennett on July 23, 2018. The parcel register obtained by Mr. Bennett’s clerk is dated July 25, 2018. The statement of claim was issued on July 26, 2018.

[22] Mr. Bennett discovered that Sunnycliffe owned the land at the northeast corner of the intersection on January 30, 2019 when he received the above-mentioned letter from counsel for the developer defendants. He learned of the involvement of TACC and of Signz on February 21, 2019 when he was served with a copy of the third party claim.

[23] This motion was originally returnable on May 9, 2019. The motion record is dated April 25, 2019 and was served on April 29, 2019.

[24] Therefore, a significant date is April 29, 2017, being two years before the notice of motion for this motion was served. If, within the meaning of s. 5(1) or 5(2) of the Act, the plaintiffs “discovered” their claims before April 29, 2017, their claims are statute barred by s. 4 of the Act. I note this date is approximately nine months after the accident date of July 30, 3016 and eight months after Mr. Bennett was retained.

Applicable Statutory Provisions

[25] I will not reproduce them here but rules 5.04(2) and 26.01 and sections 4, 5 and 21(1) of the Limitations Act, 2002 (“the Act”) are the starting points for the analysis.

Analysis

[26] Sunnycliffe argues at para. 6 of its factum: “The Plaintiffs have not shown that they were reasonably diligent in ascertaining the involvement of the Sunnycliffe prior to the expiry of the presumptive two-year limitation period.” TACC argues at para. 33 of its factum: “counsel for the Plaintiffs ought to have discovered TACC’s identity within the limitation period of the Plaintiff’s action.” Signz argues at para. 5 of its factum: “the Plaintiffs failed to exercise reasonable diligence in ascertaining the potential involvement of Signz N’ Designz prior to the expiry of the presumptive two-year limitation…”

[27] In Vuniqi v. Paramount Property Management, 2020 ONSC 7934, the defendant stated the issue in similar terms. Justice Williams said at para. 31 that this mischaracterizes the issue. She explained:

There is no requirement that a party discover a claim within the two-year presumptive limitation period. Subject to the application of the ultimate limitation period in s. 15 of the Act, a party is only required to discover a claim at the time or before a reasonable person in the same circumstances would have first discovered it. … Section 4 of the Act then provides that, once the claim has been discovered, a proceeding must be commenced within two years.

[28] In motions to amend a claim to add a defendant beyond the two-year presumptive limitation date, the amendment will usually be granted whenever there is an issue of credibility or fact involved in the determination of whether the amendment was sought within two years of the claim being “discovered.” Put more simply, the amendment will usually be granted unless it is “plain and obvious” that the limitation period has expired: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 at para. 31; Morrison v. Barzo, 2018 ONCA 979 at para. 61; Colin v. Tan, 2016 ONSC 1187 at para. 58; Skrobacky v. Frymer, 2014 ONSC 4544 (Div. Ct.) at para. 9 and 17 to 23; The Fanshawe College of Applied Arts and Technology v. Sony Optiarc, 2013 ONSC 1477 at para. 21 to 26; Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 at para. 18; Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272 (S.C.J.); Wong v. Adler, (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 at para. 45, aff’d (2005), 2004 CanLII 73251 (ON SCDC), 76 O.R. (3d) 237 (Div. Ct.):

[29] Numerous cases, which are not always easy to reconcile, have developed caveats and complexities to the foregoing. I will not attempt to catalogue them all but will address some which are engaged here.

[30] The issue of credibility or fact must be one which warrants a trial or summary judgment motion: Mancinelli, ibid; Morrison, ibid.

[31] The word “discovered,” as I have used it in paragraph [28], is defined in s. 5 of the Act.

[32] An evidentiary foundation is necessary before s. 21(1) of the Act can be applied: Morrison, supra, at para. 30. The motion judge:

must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable “before the expiry of the limitation period”, without explaining why.

[33] There is a due diligence element imported by the phrase “first ought to have known” in s. 5(1)(b). The Act:

imposes a burden on the plaintiff to demonstrate with evidence why the identity of the party and the claim against it could not have been discovered with due diligence prior to the expiry of the limitation period. (Skrobacky, supra, at para. 12.)

[34] However,

the amount of evidence required is “not very much”, and will usually involve a list of the steps taken to ascertain the identity of the tortfeasor and a reasonable explanation as to why such information was not obtainable with due diligence. (Ibid., citations omitted.)

[35] Further, “the absence of due diligence is not a separate basis for dismissing a claim as statute-barred”: Morrison, supra, at para. 29. For example, if, no matter how hard it tried, the plaintiff would not have been able to discover its claim against the proposed new defendant, no one can say the plaintiff “ought to have known.” In such circumstances it would not matter if the claimant failed to exercise any diligence at all. Examples in which it was found that it may have been impossible to discover the proposed defendants include: Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235 at para. 9 and 17; and Parlette v. Sokkia Inc., [2004] O.J. No. 4626 (S.C.J.).

[36] There is both an objective and subjective element to the due diligence question, introduced in s. 5(1)(b) and s. 12(3) of the Act by the phrase “a reasonable person with the abilities and in the circumstances of the person.” Here, the plaintiffs retained counsel within a month of the accident. The knowledge of the plaintiffs is imputed to their lawyer and vice versa: s. 12(2) of the Act; Colin v. Tan, supra, at para. 67.

[37] The “issue of credibility or fact which warrants a trial or summary judgment motion” may arise from any of the above issues, including whether the claim could have been “discovered,” whether the plaintiff acted with due diligence, and what date the claim was “discovered.”

[38] When the amendment is permitted, the defendant should usually be granted leave to plead a limitation defence: Morrison, supra, at para. 30; Mancinelli, supra, at para. 34. It is preferable that leave is addressed when the order is made: Sirotek v. O’Dea, 2021 ONSC 1223 at para. 10. Here, the plaintiffs agree that the proposed defendants should be granted leave to plead the limitations issue if they are added to the claim.

[39] The amendment will not be granted if the proposed defendant will suffer non-compensable prejudice. Formerly, prejudice was presumed when a plaintiff sought to add a defendant after the expiry of the presumptive limitation period: Mota v Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (C.A.) at para. 32 to 34; Frohlick v Pinkerton Canada Ltd., 2008 ONCA 3 at para 17. However, Mota, which is relied on by Signz, applied the limitation period which existed at the time in s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38. And in Frohlick, the former Limitation Act applied (see para. 2 of the motion judge’s decision, which was affirmed on appeal: Frohlick v. Pinkerton Canada Ltd., 2006 CarswellOnt 9475 (S.C.J.)). More recently, the Court of Appeal has said that this presumption of prejudice is inconsistent with the framework of the Act: Morrison, supra, at para. 22. In any event, the presumption of prejudice just deals with the onus which, as I will address below, is overcome here.

[40] The limitation period generally does not run during any time in which the person with the claim is a minor or incapable: s. 6 and 7 of the Act. Here, plaintiff David Zeppieri was age 19 at the time of the accident. I have not been provided with the plaintiff Steven Zeppieri’s age, so I assume his age is inconsequential to the limitations analysis.

[41] In motor vehicle accident cases, resolution of the question of whether the injuries satisfy the permanent and serious threshold requirement of s. 267.5(5) of the Insurance Act can be part of the “discoverability” analysis under s. 5(1)(iv) of the Act. Here, the plaintiffs have not raised this as an issue.

[42] With the above in mind I will now consider the claims against each proposed defendant.

Sunnycliffe

[43] There is an issue of fact and credibility with respect to whether Mr. Bennett exercised the due diligence required to identify the owner of the land at the northeast corner of the intersection. He arranged for a clerk in his office to do the property search. The clerk was a clerk in the municipal law department of his firm, and she had been appointed as the person at the firm to do these searches for the personal injury lawyers. On its face, the parcel register states that the Corporation of the City of Brampton was the owner. On the other hand, Mr. Bennett does not appear to have examined title records for the northeast corner of the intersection until July 25, 2018, one day before he issued the claim and five days before the second anniversary of the accident. Further, a lawyer with more experience in real estate practice may have quickly recognized the need for a deeper title search.

[44] Can I determine that Mr. Bennett ought to have started his title investigation sooner? Can I determine he ought to have done more regarding the title search? Again referencing the Court of Appeal in Mancinelli, supra, at para. 31:

the motion judge will not be in a position to dismiss the plaintiffs motion in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgment motion. [Emphasis added.]

[45] To make a finding that Mr. Bennett was required to go farther than he did requires a determination as to the standard of practice of a personal injury lawyer in the circumstances. It is not appropriate for me to determine the standard of practice of a personal injury lawyer in a motion to amend a claim. Doing so would involve an issue of credibility or fact warranting a trial or summary judgment motion.

[46] I will add here that, although none of the parties cited it to me, I have considered Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545 at para. 18 to 20. It is distinguishable on the basis that what is normally a routine, “simple procedure” to search a public register was not so simple here. As a result, it does not govern the outcome of this case.

[47] In the result, the motion to add Sunnycliffe should be granted, with leave to Sunnycliffe to plead a limitation defence.

Signz

[48] The affidavit of Matthew Miller, one of the lawyers for Signz, does not reveal any way in which Mr. Bennett could have identified Signz. There is no evidence, for instance, that the sign was somehow marked with Signz’s logo.

[49] During cross examination by Ms. Antoniuk on behalf of Signz, Mr. Bennett admitted that he did not take any steps between July 30, 2016 and July 30, 2018 to investigate who designed and installed the signs at the intersection. Mr. Bennett also admitted that he did not make any freedom of information requests in relation to signage; however, there is no evidence to indicate what a freedom of information request may have revealed. I have no evidence that Brampton has a sign by-law or that the sign would have required the approval of Brampton or a licence from Brampton.

[50] Brampton named Signz in its third party claim. I do not have evidence indicating how Brampton identified Signz in order to name them as a third party.

[51] The Signz sign advertised Landmart Homes as at September 2014 and Liv Communities as at July 2015, according to the Google Maps street view images contained in the motion materials. Websites are identified on the signs. I have no evidence as to what Mr. Bennett would have discovered had he accessed these websites within the first eight months of his retainer or at any other time.

[52] On the available evidence, I conclude that the only way Mr. Bennett could have determined who designed and installed the Signz sign would have been to make an inquiry of the developer defendants and then to receive a response. However, it is by no means certain that he could have known the identity of Signz within nine months of the accident. This determination involves issues of credibility and fact warranting a trial or summary judgment motion.

[53] It is even more evident that there are issues of credibility and fact on the question of whether Mr. Bennett ought to have discovered the involvement of Signz. This again involves questions of the standard of practice of a personal injury lawyer. For instance, should Mr. Bennett have retained an engineer before obtaining the police reconstruction report? The evidence indicates that Mr. Bennett did not obtain the report until January 17, 2018. I do not have evidence of when it may have been available. It is undated.

[54] I have reviewed and considered numerous cases which hold that the failure to make any inquiries at all to identify potential defendants, particularly in slip and fall cases, can be a fatal lack of due diligence. Examples include Ali v. City of Toronto, 2020 ONSC 5888 and the cases cited in it. Some of these cases cite and distinguish Madrid, supra, at para. 15, where Justice Lauwers said:

In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s. 5 of the Limitations Act, 2002. It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendants and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery.

[55] The cases referenced in Ali which distinguish Madrid do so on the basis that there was a “trigger” in the circumstances of the particular case. For instance, in Ali, the presence of ice or snow on the city sidewalk should have caused the plaintiff to inquire into the existence of a winter maintenance contractor for the city.

[56] In the matter before me, perhaps the sign itself ought to have triggered Mr. Bennett to consider who fabricated and erected the sign. But even if he had considered this question, there was nothing to indicate that the sign was erected by anyone other than the owner of the property where it was located. It comes back to assessing Mr. Bennett’s actions, and that involves issues of fact and credibility requiring a trial or summary judgment motion.

[57] In the result, the motion to add Signz should be granted, with leave to Signz to plead a limitation defence.

TACC

[58] There are two elements to the proposed claim against TACC that must be considered separately, namely the obstruction of sightlines allegedly caused by: (1) the sign; and (2) construction activities such as fill placement or altered grade.

The Sign

[59] For the first element, the sign was present at the time of the accident. It identifies TACC Construction Ltd. and it was apparent that TACC must have had something to do with erecting it. A site visit would have revealed the sign and that aspect of the claim. Therefore, plaintiffs could have identified the TACC sign as a possible obstruction and could have identified TACC as a potential defendant within days of the accident.

[60] Mr. Bennett did not personally do a site visit. He hired an engineer to attend the scene before the presumptive time limit expired. It is by no means clear that the standard of practice requires that a personal injury lawyer must personally attend the scene of an accident when representing a party to a car accident case. A lawyer would not be able to testify about any observations made in a site visit, whereas an engineer would be able to testify. Further, the lawyer would expect the engineer to adequately document the scene including any hazards. It is not obvious that Mr. Bennett ought to have personally done a site visit.

[61] Mr. Bennett has provided an explanation of how Mr. Walters walked him through his findings by jointly reviewing Google street view images of the intersection. He has provided copies of screen shots that Mr. Walters sent him as part of the conversation. Those screen shots do not depict the TACC sign. Mr. Bennett’s explanation for why he was unaware of the TACC sign raises issues of credibility or fact warranting a trial or summary judgment motion.

[62] On behalf of TACC, Mr. Horton also argued that the police accident reconstruction report contained photos which depicted the TACC sign. Mr. Bennett had deposed the report did not identify any of the proposed defendants. Mr. Horton submitted that this was inaccurate. He referenced two photos in the report, figures 18 and 24, which showed the TACC sign. On close inspection of these photos, the sign is visible, but barely.

[63] This submission only emphasizes the question of whether Mr. Bennett ought to have identified TACC. It seems unrealistic that he could have done so from the police photos contained in the reconstruction report. In figure 18, only the letter T on the sign is visible, and it is only visible on very close inspection. In figure 24, I can make out the sign but none of the lettering on it (in the black and white copy of the report filed with the court for the motion). Mr. Bennett may only have had a black and white copy of the report. What is visible in the copy he looked at? Should he have requested a better copy or a colour copy? Should he have requested the original photos? When would the police have made the photos available? Again, Mr. Bennett did not obtain the report until January 17, 2018. Should he have obtained it earlier? Could he have obtained it earlier? As indicated above, the report is undated. I do not know even know if the report existed within nine months of the accident.

Construction Activities

[64] For the second element of the allegations against TACC, that fill and altered grading obstructed sightlines, the existence of the TACC sign and its location may have led a reasonable observer to conclude that TACC was involved in some aspect of construction at or near the intersection. However, further inquiry would have been required to determine what aspects of the construction TACC was responsible for. An observer would not have been able to determine whether TACC was building houses in the area or regrading the area or reconstructing the road. The only way Mr. Bennett could have determined who added the fill or altered the grading would have been to make an inquiry of TACC or the other defendants and then to receive a response. Ought Mr. Bennett to have made inquiries? When should have done so?

[65] As these questions and considerations highlight, there are significant factual issues as to whether the plaintiffs could have or ought to have discovered the involvement of TACC within nine months of the accident. There are issues of credibility and fact warranting a trial or summary judgment motion.

[66] In the result, the motion to add TACC should be granted, with leave to TACC to plead a limitations defence.

Prejudice

[67] In the proposed defendants’ factums, only Signz raises the issue of prejudice, arguing that under rule 5.04(2), the addition of a party is discretionary, and that prejudice is presumed where the claim is brought beyond the expiry of the limitation period. No specific prejudice is identified in the factums. As I indicated above at paragraph [39], the Court of Appeal has said that a presumption of prejudice is inconsistent with the framework of the Act. Prejudice is not presumed here.

[68] In oral argument, Mr. Horton and Ms. Antoniuk argued that prejudice arises from the fact that the intersection has fundamentally changed since the accident, with limited photos available of the signs. The photos in the motion materials do establish that the intersection has significantly changed.

[69] Despite this, prejudice has not been established. The police did a thorough investigation of the scene of the accident, including a collision reconstruction report with multiple photos and a scale diagram. It is true that there are very limited photos of the signs in the police report, as discussed above, but from the Google street view imagery it is possible to locate and orient the position of the signs. There is no evidence to suggest that engineers will be unable to recreate the scene for a sightline analysis.

[70] In addition, as indicated, Mr. Walters’ photos show that the intersection was altered, and the signs were removed, at the time the existing statement of claim was issued. Amendments now will not be the cause of any prejudice arising from the alteration of the scene. “There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendment and not from some other source”: 1353837 Ontario Inc. v. Derek Pigozzo as Chief Building Official for the City of Stratford, 2019 ONSC 2868 at para. 9; Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 at para. 21; Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.) at para. 65. If the proposed defendants were included at the outset, their position would be the same as it is today.

Merits

[71] Nothing I have said in these reasons should be construed as a comment on whether sightlines at the intersection were in fact obstructed at the intersection, by the signs or otherwise, or on any other element of the merits of the claims against any of the new defendants. Further, the trial judge is not bound by any findings I have made: Sirotek, supra, at para. 8.

Disposition

[72] The motion is allowed. An order shall issue in accordance with para. (a) of the request for relief in the notice motion.

[73] Costs are not requested in the notice of motion, except within the “such further and other relief” clause.

[74] In all of the circumstances I am not inclined to award costs for this motion but if any party wishes to address me on costs, the parties can arrange a 9:00AM videoconference through my judicial assistant.

“Justice R. Chown”

Released: April 16, 2021