COURT FILE NOS.: CV-16-00000621-0000 and CV-14-00000425-0000

DATE: 2022/03/24

SUPERIOR COURT OF JUSTICE-ONTARIO

RE: CLAUDIA PIEDRAHITA, Plaintiff

AND:

ANDREA BRAD, Defendant

AND:

CLAUDIA PIEDRAHITA, Plaintiff

AND:

CHRISTIAN COSTIN and DON HOWSON OPERATIONS INC., Defendants

BEFORE: Gibson J.

COUNSEL: Brian Pickard, Counsel for the Plaintiff

Jillian Beaulieu, Counsel for the Defendants

HEARD: December 2, 2021

ENDORSEMENT

Overview

[1] These actions arise out of a motor vehicle accident (“MVA”) that occurred on May 11, 2012 in Kitchener, Ontario. The plaintiff Claudia Piedrahita’s vehicle was allegedly struck from behind by a vehicle driven by the defendant Christian Costin.

[2] The plaintiff’s initial lawyer James Pitcher obtained the police MVA Report, prepared by the Waterloo Regional Police Service. That report stated that the operator of the at-fault motor vehicle was Christian Costin, and that the 2003 Ford vehicle was owned by Don Howson Operations Inc. The MVA Report contained the licence plate number of the vehicle. A Notice of Action was issued at the courthouse in Kitchener on May 6, 2014, (less than two years after the date of the MVA), and a Statement of Claim was issued on May 27, 2014. The action was assigned court file no. CV-14-425 and entitled Claudia Piedrahita v. Christian Costin and Don Howson Operations Inc. (“the Costin action”). This claim was administratively dismissed for delay by the Registrar on December 29, 2014. The plaintiff’s current legal counsel has filed a Notice of Motion to have this dismissal set aside.

[3] The plaintiff’s former counsel James Pitcher communicated with both the defendant’s insurance company Wawanesa, and Don Howson Operations Inc. The plaintiff submits that they did not advise the plaintiff’s counsel until January 14, 2016 that the at-fault vehicle was leased by Andrea Brad, who is now the defendant in Court File No. CV-16-621 (“the Brad action”). Andrea Brad was the lessee of the vehicle which was alleged to have rear-ended the plaintiff’s vehicle. She was not the driver or the owner of this vehicle.

[4] A Notice of Action in the Brad action was issued on June 8, 2016. The Statement of Claim was issued on July 7, 2016. This was approximately four years and one month after the date of the accident.

[5] By her Notice of Motion dated April 23, 2019, the defendant Andrea Brad seeks an Order for summary judgment dismissing the action on the basis that the plaintiff failed to commence the action within the limitation period prescribed in the Limitations Act, 2002, S.O. 2002, c.24, Sched. B.

[6] Pursuant to the agreement of the parties, the motion for summary judgment in the Brad action and the motion to set aside the dismissal in the Costin action were heard together in a virtual hearing conducted before me on the Zoom platform on December 2, 2021.

The Summary Judgment Motion to Dismiss as Statute Barred by Expiration of Limitation Period

[7] In assessing whether summary judgment is appropriate, the Court must determine whether the summary judgment procedure provides the evidence to adjudicate the dispute in a way that is fair, just, timely, affordable, and proportionate. If the court finds that there is a genuine issue for trial, then it may apply its investigative powers under subrules 20.04(2.1) and (2.2), if doing so will avoid the need for a trial without hampering the interests of justice.

[8] I consider that this is a matter which is appropriate for summary judgment.

[9] The plaintiff asserted in her Notice of Action in the Brad action on June 8, 2016, that the identity of the owner of the motor vehicle at issue was not reasonably discoverable until June 14, 2014. In her Statement of Claim dated July 7, 2016, the plaintiff asserted that the identity of the lessee of the vehicle was not reasonably discoverable prior to receipt of correspondence from Wawanesa Insurance Company, the defendant’s insurer, dated August 15, 2015, and thus then took the position that the prescription period ought to be extended to August 15, 2017.

[10] The defendant submits that the plaintiff’s then-lawyer James Pitcher failed to exercise reasonable diligence by failing to conduct a routine licence plate search to ascertain the identity of the lessee of the vehicle prior to the expiration of the limitation period, and accordingly failed to bring the action against the defendant Andrea Brad within the limitation period. She submits that the plaintiff’s claim is statute-barred and ought to be dismissed.

[11] The key consideration in assessing this issue involves an assessment of discoverability of the claim pursuant to the Limitations Act, 2002.

[12] Sections 4 and 5 of the Limitations Act, 2002 provide:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.

Discovery

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). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(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. 2002, c. 24, Sched. B, s. 5 (2).

[13] Subject to the adjustment made by s. 5(1)(a)(iv), with respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is "discovered" on the earlier of the date the claimant knew -- a subjective criterion -- or ought to have known -- an objective criterion -- about the claim: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.

[14] The discoverability of a claim for relief involves the identification of the wrongdoer and also the discovery of his or her acts or omissions that constitute liability: Aguonie v. Galion Solid Waste Material Inc.; Ladd v. Brantford General Hospital (2007), 2007 CanLII 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.).

[15] It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City) (2010), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenaway v. Ontario (Minister of Transportation) (1999), 1999 CanLII 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.).

[16] Accordingly, a claim is not discoverable until the identity of the wrongdoer is known or knowable with reasonable diligence.

[17] At para. 29 in Morrison v. Barzo, 2018 ONCA 979, the Court declared:

[29] Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, [2016] O.J. No. 1745, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35, [2016] O.J. No. 3906, 2016 ONCA 585, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, [2018] O.J. No. 3129, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.

[18] In the case of automobile accidents, the claim against the owner or operator is not discovered until the plaintiff has identified the owner and/or operator. This is the subjective element of the test: Miano v. Campos, 2019 ONSC 1816 at paras. 8 and 19.

[19] In this case, it is clear that subjectively neither the plaintiff nor her lawyer knew the identity of the lessee of the vehicle until August 15, 2015 at the earliest.

[20] As the Court of Appeal held at para. 31 in Morrison v. Barzo, it is wrong to say that the plaintiff has an onus to show due diligence to rebut the presumption under s.5(2). The absence of due diligence is not a separate basis for dismissing a claim as statute-barred.

[21] The objective part of the test must be considered.

[22] The Court of Appeal dealt with a similar situation in Lingard v. Milne-McIsaac, 2015 ONCA 2013 at paras. 8 and 9, holding that it was reasonable to rely on the police report alone.

[23] In Patterson v. Ontario (Transportation), 2014 ONCA 487, at para. 5, the Court held:

[w]e cannot accept the appellant’s contention that we can or should lay down an iron-clad rule to the effect that failure to conduct such a [plate] search is fatal on the issue of discoverability in light of the decision of this court in Valesco v. North York Chevrolet Oldsmobile Ltd., 2011 ONCA 522.

[24] In this case, the plaintiff’s counsel relied on the police report for the identity of the owner of the at-fault vehicle. It was not until August 15, 2015, when he received a letter from Wawanesa requesting a waiver of defence, with a “re:” line identifying its insureds as Christian Costa and Andrea Brad, that he became aware that ownership may be an issue. The Notice of Action and the Statement of Claim in the Brad action were issued less than two years after the date of that letter.

[25] I find under s.5(1)(b) that a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known of the matters referred to in clause (a) on August 15, 2015. Accordingly, the claim was not issued out of time.

[26] The defendant’s motion for summary judgment in the Brad action will be dismissed.

Setting Aside Administrative Dismissal

[27] The plaintiff brings a motion pursuant to Rules 37 and 48.14 of the Rules of Civil Procedure to set aside the administrative dismissal of the Costin action by the Local Registrar on December 29, 2014, for delay.

[28] The defendants Christian Costin and Don Howson Operations Inc. oppose the plaintiff’s motion.

[29] The plaintiff submits that the action was dismissed while the plaintiff’s then lawyer, James Pitcher, was severely disabled as a result of a bicycle accident. Additionally, he was not aware that the action had been dismissed. The plaintiff submits that the dismissal was not discovered until January 16, 2018. The matter was reported to LawPRO and it retained the firm of Forget Smith to bring the motion to set aside the dismissal order. Brian Pickard is counsel for this purpose.

[30] The test for setting aside a Registrar’s dismissal for delay was summarized by the Court of Appeal for Ontario in Prescott v. Barbon, 2018 ONCA 504 at paras. 14-15. The legal test was originally set out in Reid v. Dow Corning Corp., (2001) 11 C.P.C. (5th) 80 (Ont. SCJ) (“the Reid Factors”) and adopted by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63 at para. 23:

(a) Have the plaintiffs provided a satisfactory explanation for the litigation delay?

(b) Have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute this action within the time limit set out in the rules or a court order but failed to do so through inadvertence?

(c) Have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention? and;

(d) Have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action?

[31] The Court of Appeal in Prescott stated at para. 14 that this is not a rigid, one-size-fits-all test. Rather, a contextual approach is required. Prior to Scaini, a plaintiff had to satisfy each of the four elements. Thereafter, courts were to consider and weigh all relevant factors to determine the order that is just. The Court noted that “the overriding objective is to achieve a result that balances the interests of the parties and takes into account the public’s interest in the timely resolution of disputes.”

[32] The expiry of a limitation period gives rise to presumptive prejudice, the strength of which increases with the passage of time. Further, where the presumption arises, the plaintiff bears the burden of rebutting the presumption, on proper evidence, and where the onus is displaced, the onus shifts to the defendant to establish actual prejudice: Wellwood v. Ontario Provincial Police et. al, 2010 ONCA 386 at para. 60.

[33] In this case, the recurrent theme throughout this matter has been an inordinate delay on the part of the plaintiff and her counsel.

[34] There was an extended delay in communicating with the defendants regarding the Registrar’s dismissal. There was a delay of 3.5 years to set aside the Registrar’s dismissal. There was a delay of transition of carriage of this matter from the plaintiff’s former lawyer, James Pitcher, to the plaintiff’s current lawyer, Robert Plate, of some 1.5 years from the time Mr. Pitcher decided to sell or wind down his practice in February 2016. Four months elapsed from the time of Mr. Plate’s retainer to the time he advised Mr. Pitcher of the Registrar’s dismissal. About eight months elapsed from when Mr. Plate learned of the Registrar’s dismissal to when the plaintiff moved to set the dismissal aside. Examinations for discovery have still not taken place nearly eight years after the accident.

[35] The plaintiff has not provided a satisfactory explanation for the litigation delay. The plaintiff and her counsel have advanced several reasons for the delay, including clerical errors, an extended vacation by Mr. Pitcher, an unsubstantiated verbal waiver, and the assertion that Mr. Pitcher continued to suffer a physical disability in 2015 from a bicycle accident that took place in 2010. Mr. Pitcher admitted that his office did not have in place a calendar tickler system to ensure that this claim would not be administratively dismissed. Moreover, Mr. Pitcher’s office had received a prior notice from the Registrar that the claim would be administratively dismissed in 45 days (Notice That Action Will Be Dismissed), which was date-stamped received November 7, 2014. Mr. Pitcher testified on cross-examination that his office did receive the December 29, 2014 Registrar’s dismissal, but that it was not brought to his attention. Mr. Pitcher had not provided any medical opinion that injuries sustained in an accident in 2010 affected his ability to work in 2015. He denies that both the Registrar’s 45-day notice, and the Registrar’s dismissal order, came to his attention. He asserts a neck injury from two years prior to his retainer, and nearly four years prior to the administrative dismissal, provide a reason why he did not act to keep the action alive.

[36] Mr. Plate offers no reasonable explanation why he waited from early September 2017, being the time he says his office learned of the dismissal, to January 2018 to advise Mr. Pitcher of the dismissal. No reasonable explanation has been provided for the eight-month delay from September 2017, when Mr. Plate learned of the dismissal, to May 2018, when LawPro counsel moved to set aside the dismissal.

[37] The plaintiff in her Affidavit simply makes bald assertions that she intended to pursue this action, but does not provide any positive evidence to show how or when she took positive steps to advance this litigation.

[38] There is no burden on the defendants to explain the delays or to move the action to trial. The primary responsibility for the progress of the action lies with the plaintiff: Prescott at para. 30.

[39] There is no satisfactory evidence that the plaintiff always intended to prosecute this action within the time limit set out in the rules, but failed to do so through inadvertence. There is a delay of approximately 3 years and 5 months from the time of the dismissal (December 29, 2014) to the time that the plaintiff moved to set the dismissal order aside (May 30, 2018).

[40] The plaintiff has not demonstrated that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

[41] Prejudice is a key consideration on motions to set aside a dismissal order. The moving plaintiff bears the onus to establish no significant actual delay to the defendant’s ability to defend the action as a result of the plaintiff’s delay: Prescott at para. 36.

[42] The prejudice suffered by the Costin defendants includes: locating witnesses will be more difficult and may be impossible given the length of time that has elapsed; the memories of any witnesses may be poor due to the passage of nearly 8 years’ time since the MVA; any defence medical assessment will take place more than 8 years’ post-accident; and the lack of timely examination for discovery will hamper the ability to obtain an accurate recollection of the parties.

[43] There are also considerations of security of legal position and finality.

[44] The plaintiff has not met her onus to establish no significant actual prejudice to the defendants.

[45] In assessing this matter, I must adopt a contextual approach and consider and weigh all relevant factors to determine the order that is just. Taken altogether, I find that the plaintiff has not satisfied the test to set aside a Registrar’s dismissal order, and that it would not be just to do so. The motion to set aside the Regisrtar’s dismissal dated December 29, 2014 in the Costin action will be dismissed.

Order

[46] The Court Orders that:

1. The plaintiff’s motion to set aside the Registrar’s dismissal dated December 29, 2014 in the Costin action, Court File No. CV-14-425, is dismissed;

2. The defendant’s motion for summary judgment in the Brad action Court File No. CV-16-621 is dismissed.

Costs

[47] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and also to Kitchener.SCJJA@ontario.ca. The defendants may have 14 days from the release of this decision to provide their submissions, with a copy to the plaintiff; the plaintiff a further 14 days to respond; and the defendants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the defendants’ initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson, J.

Date: March 24, 2022