Court Information
COURT FILE NO.: CV-19-47
DATE: 20210625
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Ray Joseph McAuley, Plaintiff
AND:
Canada Post Corporation, Defendant
AND:
Town of Huntsville and Heritage Property Services, Third Parties
AND:
Always Handy Property Management Ltd. and Jones Lang LaSalle Real Estate Services Inc., Fourth Parties
BEFORE: Justice C. Boswell
COUNSEL: Peter M. Reinitzser, counsel to the Plaintiff Nicholas Stribopoulos, counsel to Canada Post Corporation Rose Muscolino, counsel to Town of Huntsville Tina Le, counsel to Heritage Property Services Joshua E. Thon, counsel to Always Handy Property Management Ltd. No one appearing for Jones Lang LaSalle Real Estate Services Inc.
HEARD: June 22, 2021 by videoconference
ENDORSEMENT
[1] The plaintiff slipped on an icy sidewalk in front of the post office in Huntsville on December 20, 2017. He broke his ankle. This lawsuit followed.
[2] The action has proceeded through the discovery stage. The plaintiff now moves for leave to amend his statement of claim. He seeks to add the third and fourth parties as defendants to the main action. The Town of Huntsville and Jones Lang LaSalle Real Estate Services Inc. (“JLL”) do not oppose the motion. Heritage Property Services and Always Handy Property Management Ltd. do. They assert that any direct claims the plaintiff may have against them are now statute-barred by the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[3] The following reasons explain why I agree with the positions of Heritage and Always Handy and why the motion against them must, in my view, be dismissed.
THE GOVERNING PRINCIPLES
Amending Pleadings
[4] Civil actions in Ontario are governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Rules are very permissive when it comes to amending claims. Indeed, r. 26 directs the court to allow pleading amendments at any stage in the proceedings unless doing so would cause prejudice that cannot be compensated for by an award of costs or an adjournment.
[5] There are, in the result, few impediments to proposed amendments, even where the amendments involve adding new parties to the proceedings. A party may not be added to an action, however, where the plaintiff lacks a legally tenable claim against that party. A claim that has expired under the Limitations Act, 2002 is no longer a legally tenable claim. The Court of Appeal has made it clear that the expiration of a limitation period is an absolute bar to the addition of a party to an existing action. See Arcari v. Dawson, 2016 ONCA 715 at para. 7, leave to appeal to SCC refused, [2016] S.C.C.A. No. 522.
[6] The third and fourth parties are not, in a broad sense, new parties to this action. But they would be new parties to the main action, should the plaintiff’s motion succeed. While no one explained during argument why it might be worse to be a defendant to the main action, as opposed to a third or fourth party defendant, I suspect that one’s jeopardy may differ from one role to another. At any rate, given the resistance to the plaintiff’s motion, the court must determine whether it is now too late to add Heritage and Always Handy as defendants to the main action.
The Limitations Act, 2002
[7] The basic limitation period applicable to most civil lawsuits in Ontario is two years from the date the claim was discovered. There is a presumption that a claim was discovered on the date of loss, which in this case was December 20, 2017. The presumption is rebuttable. In other words, it is open to a plaintiff to demonstrate that she or he actually discovered the claim on a date sometime after the date of loss. He or she must also demonstrate, however, that the claim could not have been discovered on an earlier date through the exercise of reasonable diligence.
[8] Section 5(1) of the Limitations Act, 2002 provides, in particular:
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).
[9] The Court of Appeal has instructed that a judge assessing a limitations defence must make a number of factual findings. First, he or she must determine the date of loss, or the presumptive date of discovery. Second, he or she must determine the actual date of discovery, provided there is evidence to rebut the presumptive date. Third, he or she must determine the objective discovery date, being the date that a reasonable person with the plaintiff’s abilities and in the plaintiff’s circumstances would have discovered the claim. Finally, the trial judge must determine which date was earlier, as between the dates of actual and objective discovery. See Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725 at para. 35.
[10] The plaintiff bears an evidentiary burden under s. 5(1) of the Limitations Act, 2002. The evidentiary threshold, however, is low. Any explanation offered by the plaintiff as to why the claim could not have been discovered earlier through the exercise of reasonable diligence is to be given a “generous reading” and considered in the context of the claim. See Morrison v. Barzo, 2018 ONCA 979 at paras. 31-32.
[11] As my colleague Myers J. bluntly put it in his recent ruling in Sheikh v. Kathuria, 2021 ONSC 3273, “Not much evidence is required to establish a basis to allow a claim to proceed with the limitation period issue being reserved as an issue for resolution in the proceeding.” (Para. 20).
[12] Where the plaintiff meets its low evidentiary threshold to explain why the claim could not have been discovered earlier, the evidentiary burden shifts to the proposed defendant. Hoy, A.C.J.O., as she then was, explained the shifting burden in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 at para. 31 as follows:
Where the issue on a motion to add a defendant is due diligence, the motion judge will not be in a position to dismiss the plaintiff’s 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. (Internal citations omitted).
THE EVIDENCE
The Fall
[13] The plaintiff is a 52 year old resident of Huntsville, Ontario. He is a heavy equipment operator by trade.
[14] On the morning of December 20, 2017 he ran an errand to the post office in downtown Huntsville. The post office sits on a corner lot. There is more than one entrance. The plaintiff approached the Main Street entrance on this day. Access to that entrance is directly off the public sidewalk. The entrance is covered by a small, permanent canopy.
[15] The plaintiff parked his truck across the street and slightly up the road from the post office. He walked across the road and down the sidewalk, which he described on discovery as somewhat patchy with snow but sanded. The sidewalk had a slight decline as it approached the entrance door. In other words, if one faced the entranceway the sidewalk sloped downwards from left to right.
[16] As the plaintiff got to the door of the post office, he paused to allow a woman to exit. He was just under the canopy outside the door as he waited. Once the woman had exited, the plaintiff stepped forward. His foot caught a lump of ice, roughly four inches high in his estimate, where water was running and had built up. He slipped on the ice and fell, breaking his ankle badly in the process.
[17] After he fell, the plaintiff noticed that the ground where he was laying was wet. He observed that water was trickling down the sidewalk from the corner of the building towards where he was laying. He did not immediately know what the source of the water was. Two men assisted him in getting up. One transported him to the hospital.
The Broken Eavestrough
[18] The plaintiff was, in his words, “laid up” for a couple of weeks after the incident. During his convalescence he was visited by his brother-in-law and mother-in-law, both of whom advised him that he should go and have a look at the eavestrough around the canopy over the entrance where he fell. His wife went and took some photographs of it. The eavestrough was apparently broken, which allowed water to travel down the side of the building and onto the sidewalk.
The First Action
[19] The plaintiff retained counsel at some point after his fall. I am not entirely clear about when counsel was retained but it was clearly before April 2018 because on April 13, 2018 counsel issued a claim on behalf of the plaintiff naming the Town of Huntsville as the sole defendant. The plaintiff alleged that the Town failed to properly maintain the sidewalk.
[20] The Town delivered a defence to the plaintiff’s claim on or about August 14, 2018. A number of defences were advanced, but no indication was given that another party was responsible for winter maintenance around the entrance to the post office.
The Second Action
[21] Evidently the plaintiff did not tell his counsel about the broken eavestrough until the latter part of 2018. As a result of that disclosure, his counsel put Canada Post Corporation (“CPC”) on notice of a potential claim by letter dated November 26, 2018.
[22] On November 30, 2018, CPC’s insurance adjuster advised the plaintiff’s counsel that their property manager was JLL.
[23] On February 8, 2019, the plaintiff’s counsel received a letter from Intact Insurance Company notifying counsel that Intact was the insurer for Heritage and that Heritage was a sub-contractor of JLL. The letter further indicated that Heritage contracted out its winter maintenance responsibilities at the post office location to Always Handy.
[24] All of this is to say that by February 8, 2019, the plaintiff’s counsel were aware that water from a broken eavestrough on the CPC building may have contributed to the build-up of ice that the plaintiff slipped on. They were aware that CPC had a property manager, JLL and that Heritage was a subcontractor of JLL. They were also aware that Heritage contracted out its winter maintenance duties to Always Handy. They did not know, as they point out, what the terms of the contacts were between CPC and JLL, between JLL and Heritage and between Heritage and Always Handy.
[25] On March 6, 2019, the plaintiff commenced this claim, his second action arising from his slip and fall at the post office. This time he sued CPC, alleging that they allowed water to escape from their premises, causing a build-up of ice on the sidewalk. Further that they failed to properly maintain the sidewalk in front of the building.
[26] CPC delivered a statement of defence on or about June 10, 2019, denying liability. At paragraph 14 of the defence, CPC described its contract with JLL and alleged that JLL subcontracted with Heritage. The subcontract required Heritage to clear snow and ice and prevent slippery conditions on all areas, including sidewalks.
[27] CPC subsequently issued a third party claim against the Town of Huntsville and Heritage for contribution and indemnity on June 13, 2019.
[28] Heritage delivered a defence to CPC’s third party claim on or about September 30, 2019. At paragraph 6 of its pleading, Heritage alleged that it had a contract with Always Handy for snow maintenance service at the Huntsville post office.
[29] Heritage issued a fourth party claim against JLL and Always Handy on October 7, 2019, which was defended in due course.
[30] Affidavits of documents were exchanged in all proceedings between January 10, 2020 and March 13, 2020. Included in the documents exchanged were copies of the contracts involving the third and fourth parties. According to the plaintiff’s counsel, it was not until they received these documents that they became aware, for the first time, of the contractual terms with respect to the winter maintenance at the post office.
THE PARTIES’ POSITIONS
[31] The plaintiff’s position is that all reasonable steps were taken to ascertain the identity of those parties who may be liable to him, but that it was not until March 2020 when he had sufficient information to know not only the identity of the parties who may be liable, but also their acts or omissions that supported any claim against them.
[32] In the plaintiff’s submission, while he was aware of the broken eavestrough in early January 2018, he had no reason to expect that CPC was responsible for maintaining a sidewalk in downtown Huntsville. Once he mentioned the eavestrough to his counsel, they acted promptly in putting CPC on notice. It was two and a half months after that notice that he coincidentally learned that CPC was engaged in winter maintenance of the sidewalk and that there were subcontractors involved in that activity. It was many more months before he had sufficient information to discover the existence of his direct claim against the third and fourth parties.
[33] Heritage and Always Handy essentially advance a joint position. They say that a reasonable person in the plaintiff’s position would have appreciated that the water trickling down the sidewalk from the corner of the CPC building caused or contributed to his injury. Indeed, the plaintiff conducted his own investigation and determined, within two weeks of the injury, that a broken eavestrough was the source of the water that caused the icy build-up he slipped on.
[34] Heritage and Always Handy assert that the plaintiff had a positive obligation to conduct a reasonable investigation. He failed to do so because even though he knew about the source of the water, he failed to inform his lawyer of that source and failed to put CPC on notice of his claim until almost a year had passed following the date of loss.
[35] Once the plaintiff put CPC on notice, he learned within a week that CPC had a property manager and that the property manager subcontracted winter maintenance to Heritage. He learned within two and half months that Heritage, in turn, subcontracted out winter maintenance to Always Handy. In the position of Heritage and Always Handy, a reasonable discovery date is about three months following the date of loss.
[36] JLL did not participate in this motion and takes no position.
[37] The Town of Huntsville does not oppose being added as a defendant to the main action, even though there can be little dispute that the plaintiff’s claim against the Town was discovered prior to April 13, 2018. Undoubtedly the existing direct claim against the Town in the related action informs their decision not to oppose this motion.
DISCUSSION
[38] The disposition of the plaintiff’s motion requires the court to make a number of factual findings, as described in Nasr. In particular, the date of presumptive discovery, the date of subjective discovery and the date of objective discovery.
The Covid-Adjusted Limitation Period
[39] For cases straddling the Covid-19 pandemic, however, an extra bit of fact-finding is required.
[40] The plaintiff’s motion was initiated on January 28, 2021. On the plain wording of the Limitations Act, 2002, the plaintiff’s motion will succeed provided he meets his evidentiary burden to establish that he did not discover, and could not reasonably have discovered, his claim against Heritage and Always Handy until some time after January 28, 2019.
[41] On March 20, 2020, however, the Ontario government made an order under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, specifically Reg. 73/20, which suspended all limitation periods under any statute, regulation, rule, by-law or order of the Government of Ontario, retroactive to March 16, 2020. The regulation was in force until September 14, 2020.
[42] The plaintiff takes the position, and I agree, that the effect of Reg. 73/20 was to extend any running limitation period by 183 days. In other words, all limitation periods subject to the regulation were extended by roughly six months.
[43] Heritage argues that it is wrong to interpret the effect of Reg. 73/20 as extending a limitation period. But it has not articulated why, other than to suggest that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred. I do not accept Heritage’s argument. It appears clear to me that any limitation period that otherwise would have run between March 16, 2020 and September 14, 2020 was suspended during that period. Those days do not get counted in the calculation of the limitation period.
[44] In the context of this case, that means that the plaintiff’s motion will succeed provided he meets his evidentiary burden to establish that he did not discover, and could not reasonably have discovered, his claim against Heritage and Always Handy until some time on or after July 29, 2018.
The Presumptive Discovery Date
[45] The parties agree that the date of loss – December 20, 2017 – is the presumptive discovery date. The parties also agree that the plaintiff could not reasonably have known, at the time of his injury, that he had a claim against the third and fourth parties.
The Subjective Discovery Date
[46] While the parties are agreed that the presumptive discovery date has been rebutted, they are not agreed on what the date of actual discovery was.
[47] The plaintiff submits that he did not have all of the information necessary to discover his claim against Heritage and Always Handy until documentary discovery was completed. In other words, not until sometime between January 10, 2020 and March 13, 2020.
[48] The plaintiff’s position is premised on the assertion that discovery of a claim requires more than information about the identity of a party who may be liable. It requires the discovery of his or her acts or omissions, which constitute liability. For that proposition, the plaintiff relies on the Court of Appeal’s decision in Zapfe v. Barnes, 2003 52159, where Justices Feldman and Cronk cited, with approval, the following passage from Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.) at p. 170:
While it is true that many of the cases in which [the discoverability principle] has been applied concern a plaintiff's discovery of the extent of an injury, or the delayed effect or result of a defendant's negligence, this case concerns the discovery of a tortfeasor. The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability.
[49] Heritage and Always Handy submit that the plaintiff had all the information he needed to discover them as tortfeasers as of February 8, 2019. On that date the plaintiff’s counsel received the letter from Intact Insurance Company identifying Heritage as a subcontractor of JLL and Always Handy as a subcontractor of Heritage, responsible for winter maintenance.
[50] The plaintiff contends that the information provided by Intact would have, at most, raised a suspicion that Heritage and Always Handy may be liable. It would not amount to actual knowledge of the claim, including the acts or omissions constituting liability, but would merely trigger the requirement to conduct further investigation.
[51] I tend to side with the third and fourth parties on this issue.
[52] In my view, as at February 8, 2019 the plaintiff knew:
(i) That his injury had occurred;
(ii) That the injury, loss or damage was caused by or contributed to by one or more acts or omissions that included (1) the failure to maintain the sidewalk in a safe condition and (2) the failure to prevent water from flowing down the side of the CPC premises onto the sidewalk;
(iii) That the failures identified in the preceding paragraph were those of the parties responsible for winter maintenance of the post office and its environs, including the Town of Huntsville, CPC, JLL, Heritage and Always Handy; and,
(iv) That, having regard to the nature of his injury, a legal proceeding would be an appropriate means to seek a remedy.
[53] Accordingly, I find that the plaintiff had actual knowledge of his claim against CPC as well as the third and fourth parties by February 8, 2019.
[54] A discovery date of February 8, 2019 is well within the applicable limitation period for adding Heritage and Always Handy as parties to the main action. Having said that, this motion turns on the due diligence issue. I turn to that issue now.
The Objective Discovery Date
[55] The plaintiff actually discovered his claim against the third and fourth parties by February 8, 2019. But to succeed on this motion he must demonstrate something more. In particular, that he could not, with the exercise of reasonable diligence, have discovered the claim earlier than he did.
[56] The motion was argued on the basis that the plaintiff delayed telling his lawyers about the broken eavestrough until about November 2018.
[57] Heritage and Always Handy contend that his delay is problematic. They say a reasonable person in the plaintiff’s circumstances would have told his lawyer about the broken eavestrough promptly and that, had he done so, the claim against the third and fourth parties could have been discovered within about three months of the date of loss.
[58] The plaintiff’s counsel contends that the plaintiff would not have appreciated the legal significance of the broken eavestrough. The fact that he delayed in disclosing it to his lawyers is unremarkable. From the point of view of the plaintiff’s counsel, the assessment of reasonable discovery really begins after the existence of the broken eavestrough was disclosed to counsel.
[59] The evidence about when the plaintiff actually told his lawyers about the broken eavestrough is weak and what exists is confusing.
[60] It is typical on a limitations motion for the plaintiff’s counsel to file an affidavit describing the steps they took to investigate the claim in an effort to substantiate the assertion that the plaintiff was reasonably diligent. In this instance the plaintiff filed an affidavit sworn by a paralegal employed by the plaintiff’s counsel. Here is what she said about when the eavestrough issue was brought to counsel’s attention:
From subsequent discussions with the plaintiff, I understand that in or around December 2018, he learned that the area in which he fell may also have been maintained by Canada Post who owned the building adjacent to the sidewalk.
I also understand that there was an eaves trough on the Canada Post building that appeared to direct water shedding from the building onto the sidewalk in the area in which the plaintiff fell.
[61] Nothing in the paralegal’s affidavit makes it clear when the plaintiff actually told his lawyers about the eavestrough and the water running off the building and onto the sidewalk.
[62] Moreover, nothing in the paralegal’s affidavit says anything about what prompted the plaintiff to disclose the eavestrough to his counsel when he did or why it took him so long to do so.
[63] In their factum filed in support of this motion, at paragraph 7, counsel submitted the following:
It is the plaintiff’s position that while he was aware of a broken eavestrough at the Canada Post property within weeks of his fall, he did not believe this conferred liability as he had no reason to believe that Canada Post was maintaining Huntsville’s sidewalk, and therefore had no reason to investigate whether or not Canada Post retained sub-contractors to perform winter maintenance in the area in which he fell. As soon as he advised his lawyer of the broken eavestrough, steps were taken to investigate further.
[64] I am prepared to accept, for the purposes of this motion, that the plaintiff disclosed the state of the eavestrough to his lawyers in November 2018. I also accept that, subsequent to that disclosure, his lawyers took reasonable steps to put CPC on notice and to identify other tortfeasers. But the real focus of the reasonable discovery analysis must be on the time period between early January 2018 when the plaintiff discovered the broken eavestrough and November 2018 when he disclosed it to his lawyers.
[65] The difficulty with counsel’s assertion about the plaintiff’s state of mind during that period is that there is no evidence in the record to support it. There is, for instance, no evidence that the plaintiff did not believe the information he had about the eavestrough conferred liability on anyone other than the Town of Huntsville. The paralegal’s affidavit does not address the issue at all. There is no evidence that the plaintiff did not think the broken eavestrough was significant.
[66] The plaintiff testified on discovery that he has a grade twelve education. He has no apparent experience with the legal system. He could be forgiven for not appreciating the essential elements of a tort claim or the nuances of reasonable foreseeability.
[67] Having said that, I find that the plaintiff was quite aware of the significance of the broken eavestrough within about two weeks of his fall. He was alive to the fact that the broken eavestrough on the side of the post office was the likely source of the water he noticed trickling down the sidewalk at the time of his fall. And, by extension, he was alive to the fact that the trickling water was likely the source of the ice build-up that he slipped on.
[68] The plaintiff and his wife were sufficiently concerned about the source of the water flow that she went and took pictures of the eavestrough at some point within two weeks of the incident. A reasonable inference arising from that act is that the plaintiff had some sense that the water flowing down the sidewalk from the post office might have contributed to the treacherous condition of the sidewalk and might be important in fixing responsibility for his fall.
[69] The circumstances cry out for an explanation as to why the plaintiff did not tell his lawyers about the eavestrough until November 2018. Yet no such explanation has been offered.
[70] I am invited by the plaintiff’s counsel to draw the inference that a reasonable person in the plaintiff’s circumstances, with his abilities, would not have appreciated the legal significance of the broken eavestrough and that an eleven month delay in bringing the eavestrough to the attention of his counsel is therefore not unreasonable. That is not an inference I am prepared to draw on this evidentiary record.
[71] The discovery issue requires me to assess what a reasonable person would do with the plaintiff’s abilities and in his circumstances. To be clear, the plaintiff’s circumstances included the following:
(a) He was aware on the date of loss that there was water trickling down the sidewalk from the side of the post office;
(b) He was advised by two relatives within a matter of days of his fall that he should take a look at the eavestrough. It would appear from this advice that the broken eavestrough and the hazard it created was widely known;
(c) He pursued an investigation into the source of the trickling water on the sidewalk, focusing on the broken eavestrough. His wife attended at the post office within two weeks of his fall and photographed the eavestrough and the area around it. I infer from this that the plaintiff was seeking evidence to support the assertion that the ice he slipped on formed from water entering the sidewalk from the faulty eavestrough; and,
(d) He was sufficiently concerned about the role the eavestrough had to play in his fall that he advised his doctor, Dr. Cisa, that after he fell he realized that there was icy build-up from a broken eavestrough.
[72] I think it is clear from the plaintiff’s circumstances that he was well aware, within about two weeks after his fall, that water trickling down the post office building due to a faulty eavestrough contributed to the icy conditions that caused his fall. In my view, a reasonable person in the plaintiff’s circumstances would have promptly advised his lawyer of the broken eavestrough. I have no idea why the plaintiff did not tell his lawyers about the eavestrough for almost a year. It seems to me to defy common sense in the circumstances.
[73] I return to the Court of Appeal’s direction in Morrison v. Barzo, as above, that any explanation offered by the plaintiff as to why the claim could not have been discovered earlier through the exercise of reasonable diligence is to be given a “generous reading” and considered in the context of the claim. Here, the plaintiff has not offered any explanation as to why he withheld for a year significant facts known to him within two weeks of his fall.
[74] Having found that a reasonable person would likely have told his or her lawyer promptly about the broken eavestrough, I must go on to determine how that factor plays out in the reasonable discoverability analysis.
[75] I make the following additional findings:
(a) The date of loss was December 20, 2017, just days before Christmas. The plaintiff was not mobile for at least two weeks. In the circumstances, I find it would have been reasonable for him to arrange to meet with a lawyer by the end of January 2018. I accept that there may, in theory, be reasons why it would have been reasonable for the plaintiff to delay meeting with counsel beyond the end of January 2018, but as there is no evidence about this issue in the record before me, I can only speculate about that;
(b) Had the plaintiff promptly told his lawyers about the eavestrough, which I find he ought to have, they would have promptly put CPC on notice of his claim, as they did in November 2018. I find that it would have been reasonable for them to do so within about two weeks of being advised of the broken eavestrough, so roughly by February 15, 2018. If circumstances played out as they did post-November 2018, the plaintiff’s lawyers would have been advised within a week or so of the existence of JLL, being CPC’s property manager;
(c) It took about two and a half months after CPC was put on notice of the plaintiff’s claim for Intact to advise the plaintiff’s counsel of the fact that it insured JLL’s subcontractor, Heritage, and that Heritage contracted out winter maintenance to Always Handy. I have found that this was sufficient information to amount to actual discovery of the claim against the third and fourth parties. Two and a half months from February 15, 2018 would be April 30, 2018.
[76] In the result, on the record before me, I conclude that the objective discovery date is April 30, 2018. In other words, I find that the plaintiff reasonably should have discovered his claim against the third and fourth parties by April 30, 2018.
[77] Two years from April 30, 2018 is April 30, 2020. As I noted, limitation periods were suspended by Reg. 73/20 effective March 16, 2020. They did not begin to run again until September 14, 2020. By my calculations, therefore, the limitation period to add the third and fourth parties as party defendants to the main action expired by the end of September 2020.
[78] Based on the foregoing findings, the motion to add Heritage and Always Handy as defendants to the main action is out of time and, in the result, it is dismissed.
[79] The motion to add JLL and the Town of Huntsville as defendants to the main action is not opposed. The plaintiff shall have leave to add them accordingly, should it chose to do so.
[80] The parties are encouraged to agree on the issue of costs. If they are unable to do so, then they may make written submissions, not to exceed two pages, on a fourteen-day turnaround. The submissions of Heritage and Always Handy should be filed by July 9, 2021 and the submissions of the plaintiff should be filed by July 23, 2021.
C. Boswell J.
Date: June 25, 2021