Court File and Parties

COURT FILE NO.: CV-19-80733 DATE: 2022-01-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yuhang Xie, Jingjing Mao and Bengang Xie, Plaintiffs AND Coventry Connections Inc. and Ali Al-Shammari, Defendants

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: C. Michael J. Kealy, Agent for the Lawyers for the Plaintiff Surina Sud, Counsel for the Defendants

HEARD: November 30, 2021 by video conferencing

Reasons for Decision

M. Smith J

[1] The Plaintiffs bring a Motion to correct the name of the Defendant Ali-Al-Shammari to Enad Al-Shammari and to add West-Way Taxi Nepean Ltd. (“West-Way”) as another defendant to this action.

[2] The Defendants consent to the name correction but dispute the adding of West-Way as another defendant. Further, the Defendants bring a Cross-Motion compelling the Plaintiffs to specify an amount of damages being claimed at paragraphs 1 and 2 of the Statement of Claim.

[3] For reasons that follow, the Plaintiffs’ Motion is granted, and the Defendants’ Cross-Motion is dismissed.

Background

[4] On November 9, 2017, the Plaintiff, Yuhang Xie, was struck by a taxi while crossing the street.

[5] On November 20, 2017, the Plaintiffs provided the motor vehicle accident report (“MVAR”) to their lawyer. The driver of the taxi was identified as Ali E. Al-Shammari and he was insured by RSA Insurance (“RSA”).

[6] On December 12, 2017, the Plaintiffs’ lawyer received a letter from RSA informing her that the insured was named Coventry Connections Inc. (“Coventry Connections”).

[7] On or about April 20, 2018, the Plaintiffs’ lawyer requested documents from the Ottawa Police Service (“OPS”).

[8] On or about June 28, 2018, the Plaintiffs’ lawyer received the redacted OPS file which included references to “West Way” and “Westway Taxi”.

[9] The Plaintiffs commenced this action by way of a Statement of Claim issued on July 9, 2019 (the “Action”).

[10] In or around November 2019, the Plaintiffs’ lawyer was informed by the Defendants’ lawyer that Coventry Connections may not be involved in the Action.

[11] On January 31, 2020, the Plaintiffs’ Notice of Motion to amend the Statement of Claim was filed and served.

Plaintiffs’ Motion

Legal principles

[12] Rule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides the Court with the discretion to add a party unless prejudice would result that could not be compensated by costs or an adjournment.

[13] Rule 26.02(c) of the Rules provide that a party requires leave to amend the Statement of Claim to add a party where the consent of all parties is not granted.

[14] Sections 4 and 5(1) of the Limitation Act, 2002, S.O. 2002, c.24, Sch. B (the “Act”), provides that a proceeding shall not be commenced after the second anniversary of the day on which the claim was discovered or could have been discovered by the exercise of reasonable diligence.

[15] The discoverability approach to follow was set out by the Court of Appeal in Morrison v. Barzo, 2018 ONCA 979, at paras. 29 to 32. The evidentiary threshold is low. A plaintiff must first rebut the presumption in s. 5(2) of the Act, namely that they knew that a claim existed against the proposed defendant. Then, the plaintiff must provide a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable diligence, as contemplated by s. 5(1)(b) of the Act.

Position of the parties

[16] The Plaintiffs argue that they could not have identified West-Way as a potential defendant until after the Plaintiffs’ lawyer received the redacted OPS file on or about June 28, 2018. The Plaintiffs submit that discoverability applies.

[17] Regarding the reasonable discoverability of the claim against West-Way, the Plaintiffs submit that their lawyer exercised reasonable diligence in identifying the defendants in this Action. Within weeks of the accident, the Plaintiffs’ lawyer obtained the MVAR and wrote to RSA. The Plaintiffs’ lawyer was advised by RSA that the insured was named Coventry Connections and there was no reason to believe that any other party existed.

[18] The Defendants' first argument is that if the Plaintiffs intended on issuing a claim against the dispatcher of the taxi, they could have done so by adding "ABC Company" in the Statement of Claim.

[19] The Defendants' second and main argument is that they have provided evidence to the Plaintiffs that West-Way is not involved and accordingly, they should not be added as a defendant. More specifically, they point to the Certificate of Insurance that does not identify West-Way as an insured as well as undisclosed evidence from the General Manager of West-Way confirming that West-Way was neither an employer or a dispatcher for the driver of the taxi.

[20] The Defendants’ last argument pertains to prejudice. They submit that on January 31, 2020, the Plaintiffs issued a second Statement of Claim, without particularizing the amount of damages being claimed, rendering a duplication of proceedings. Also, the Defendants argue that allowing the addition of West-Way as a defendant, without any evidence, would be prejudicial and could open the floodgates to claims against unrelated taxi companies that have no interest in involved motor vehicles.

Analysis

[21] The first part of the analysis is the rebuttal of the presumption that the Plaintiffs knew of the existence of a claim against West-Way. The presumptive discovery date would be November 9, 2017, being the date of loss. I agree with the Plaintiffs' position that the earliest date upon which they could have learned of the existence of West-Way is June 28, 2018, the day that the redacted OPS file was received by the Plaintiffs’ lawyer. The redacted OPS file revealed that West-Way was a potential participant in the Action. This was the first time that West-Way was identified in any documents known to the Plaintiffs or their lawyer.

[22] The second part of the analysis deals with the Plaintiffs’ reasonable explanation as to why the claim against West-Way could not have been discovered before June 28, 2018. First, the MVAR was received approximately two weeks after the motor vehicle accident and it only listed the driver of the taxi, along with his insurer, RSA. Second, less than one month after the receipt of the MVAR, the Plaintiffs' lawyer contacts RSA, requesting that an Accident Benefits file be opened. The Plaintiffs’ lawyer is told by RSA that Coventry Connections is the insured connected to the motor vehicle accident. Reliance upon the information received by RSA was reasonable because it was a recognizable taxi service in the city of Ottawa. Also, at the point of receiving this information from RSA, there is no reason to believe that there is another party involved. Third, in or about April 20, 2018, the Plaintiffs' lawyer appropriately requested the OPS file, which was only received on June 28, 2018. The OPS file refers to West-Way in two places: (a) in Constable Baptiste’s handwritten notes, he writes, under the heading insurance, the insurer’s name RSA, the insurance policy number and he identifies: “West Way Taxi #4061”; and (b) in the General Occurrence Hardcopy, under the heading Related Vehicle(s), “Westway Taxi #4061” is identified in the Particulars section.

[23] I accept the Plaintiffs’ explanation and find that on the evidentiary record before me, the discoverability principle should extend the discovery date. By exercising due diligence, the Plaintiffs and their lawyer could not have known of the existence of a claim against West-Way until June 28, 2018. The identity of West-Way was only discovered on the date upon which the OPS file was received by the Plaintiffs’ lawyer on June 28, 2018. On January 31, 2020, the Plaintiffs moved to amend the Statement of Claim to add West-Way as a defendant, well within two years of June 28, 2018.

[24] I reject the Defendants' first argument that the Plaintiffs should have added a defendant named "ABC Company" at the time of the issuance of the Statement of Claim in July 2019. As explained above, the Plaintiffs’ lawyer relied upon the information received by RSA that Coventry Connections, a recognized taxi service, was the only identified company involved in the motor vehicle accident. As such, on the date that the Statement of Claim was issued, the Plaintiffs and their lawyer did not have a basis to add another defendant. While the Plaintiffs’ lawyer should have appreciated the references to West-Way in her initial review of the OPS file, the Motion to amend the Statement of Claim was brought within two years of the discovery date of June 28, 2018.

[25] Turning to the Defendants' second argument, it must first be noted that, despite the motor vehicle accident having occurred over four years ago, the parties are still at the pleadings stage. Second, this Action is still at the procedural infancy stage. Other vital steps need to take place such as the exchange of Affidavits of Documents and conducting Examinations for Discovery. As such, I do not find it appropriate to make findings on the viability of a claim against West-Way until such time that all the evidence regarding West-Way’s involvement has been gathered and tested by the parties. Lastly and more importantly, the evidence provided by the Defendants not only remains untested, but it includes hearsay. I find the evidence presented by the Defendants to be insufficient to determine that West-Way was not involved in the motor vehicle accident and therefore decline to dismiss the Motion on that basis.

[26] Finally, in my view, the Defendants have failed to demonstrate irredeemable prejudice. Regarding the second Statement of Claim, it was issued out of an abundance of caution. As a result of my Order allowing to amend the original Statement of Claim to add West-Way as a defendant, the second Statement of Claim will no longer be required. The lack of particularized damages deals with the Defendants’ Cross-Motion which is addressed below. In terms of the Defendants’ argument that there is no evidence of West-Way’s involvement, I disagree. Constable Baptiste investigated the matter and not only identified West-Way as the taxi service, but he was able to record a specific taxi number, which is a unique identifier.

Disposition

[27] The Plaintiffs are granted leave to amend the Statement of Claim to add West-Way as a defendant, as well as consequential amendments.

[28] On consent, the Plaintiffs are granted leave to amend the Statement of Claim to correct the misdescription of the defendant Ali Al-Shammari to Enad Al-Shammari, as well as consequential amendments.

Defendants’ Motion

Legal principles

[29] Rule 25.06(9) of the Rules states that where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed:

a. the amount claimed for each claimant in respect of each claim shall be stated; and

b. the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before the trial.

Position of the parties

[30] The Defendants submit that at paragraph 1 of the Statement of Claim, the Plaintiff Yuhang Xie failed to specify the amount of damages claimed for loss of income, loss of competitive advantage, loss of housekeeping capacity and special damages. Further, they submit that at paragraph 2 of the Statement of Claim, the Plaintiffs, Jingjing Maro and Bengang Xie failed to specify the amount of damages claimed for special damages and miscellaneous out of pocket expenses.

[31] The Defendants argue that it has been over four years since the motor vehicle accident and that they should be able to provide particulars of their claims by now. The Defendants state that based upon the evidence disclosed thus far, the Plaintiffs should be able to particularize their claims. For example, the evidence reveals that the Plaintiffs did not have access to OHIP, meaning that they were required to pay out of pocket expenses during the past four years. These out of pocket expenses should be known and disclosed.

[32] The Defendants rely upon the decision of Corthorn J. in Carroll et al. v. Natsis, 2020 ONSC 3263 where she held that litigants are deemed to be aware of the Rules and particulars should be provided in their pleadings.

[33] The Plaintiffs argue that there are no rules or caselaw that would permit an Order disclosing the particulars of a claim when the legal proceedings are at the pleadings stage. They submit that there is no obligation to plead the amount more than ten days before trial.

[34] In reference to the Carroll decision, the Plaintiffs say that this case does not stand for the authority that an Order should be made at the pleadings stage. In the Carroll case, the plaintiffs sought to conceal from the public information regarding the settlement. It is submitted that Corthorn J.’s comments regarding the lack of particulars in the pleadings were made in the context of why the plaintiffs should not have an expectation of privacy with respect to the amounts of money that they received in the settlement of their claims.

Analysis

[35] In my view, r. 25.06(9) of the Rules is clear. The Plaintiffs have an obligation to provide particulars of the damages claimed. This obligation to disclose is triggered when the particulars are known to the Plaintiffs and in any event, particulars must be disclosed, at the very least, not less than ten days before trial.

[36] Although r. 25.06(9)(b) of the Rules provides an end date as to when particulars need to be disclosed, the particulars of the claim are usually disclosed much earlier in the proceedings and not immediately before trial as contemplated by the Rules. This occurs for a few reasons. First, pursuant to r. 25.06(9)(b) of the Rules, a plaintiff has an ongoing positive obligation to obtain and deliver the particulars forthwith as soon as they become available. Second, in the normal course of a civil action, particulars of the claim are usually given by the plaintiff at the Examinations for Discovery or at a later date by way of an undertaking. Failure to answer an undertaking can lead to the plaintiff not being able to rely upon the information at trial.

[37] The uniqueness of the case before me is that even if the motor vehicle accident occurred in November 2017, the Action remains at the pleadings stage. To my knowledge, Affidavits of Document have not been exchanged. Examinations for Discovery have not yet taken place. Regrettably, it took almost two years for this Motion to be heard, due in large part to the delays incurred because of the pandemic.

[38] The Defendants nonetheless submit that the particulars of the Plaintiffs’ claims are known or should be known by the Plaintiffs. The Defendants argue that the evidence found in the Plaintiffs’ Motion Record, such as the hospital records and the Accident Benefits file, suggests that the Plaintiffs have sufficient evidence to particularise their claims. I disagree.

[39] The materials filed by the parties does not suggest to me that the Plaintiffs are in possession of sufficient information and/or documentation to provide particulars on every aspect of their claims. Take for example the loss of income claim being advanced by the Plaintiff Yuhang Xie. The only information before me is that, at the time of the motor vehicle accident, the Plaintiff Yuhang Xie was a student and because of her injuries, she has been unable to return to school. On this information alone, I am not satisfied that the Plaintiff Yuhang Xie is able to quantify her loss of income.

[40] Regarding the other claims that need to be particularised, such as out of pocket expenses, housekeeping and special damages, I am equally not satisfied on the evidentiary record before me that the Plaintiffs are able to provide the particulars at this time.

[41] Sadly, but understandably, the parties have focused their attention on this Motion as opposed to advancing the Plaintiffs’ claim beyond the pleadings stage. In the parties’ interests, a reasonable timetable should be crafted to move this case along quickly and bring it to a conclusion in the foreseeable future.

Disposition

[42] For these reasons, the Defendants’ Cross-Motion is dismissed.

Conclusion

[43] The Plaintiffs’ Motion is granted, and the Defendants’ Cross-Motion is dismissed.

[44] I encourage the parties to reach an agreement on costs. If they are unable to do so, the Plaintiffs are to serve and file their written submissions (limited to a maximum of three pages, excluding the Bill of Costs and Offers to Settle) within 60 days of these Reasons for Decision. The Defendants are to serve and file their responding materials (limited to a maximum of three pages, excluding the Bill of Costs and Offers to Settle) within 30 days thereafter.

M. Smith J Released: January 11, 2022