Court File and Parties
COURT FILE NO.: CV-19-00615584-0000
DATE: 2023-07-31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RAUFI v. CITY OF TORONTO
BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN
HEARD: May 10, 2023 (by Zoom videoconference)
COUNSEL: S. Sud, for the moving party/proposed defendant, 614128 Ontario Ltd., Operating as Trisan Construction
D. Zacks and E. Ngondo, for the responding party/plaintiff, Badamkhanum Raufi
K. Bedeau for the defendant, City of Toronto
E N D O R S E M E N T
[1] This is a motion on refusals given on a cross-examination conducted on another motion. The underlying motion is a motion by the plaintiff in this slip and fall action seeking to amend the claim to add 614128 Ontario Ltd., Operating as Trisan Construction (“Trisan”) as a defendant to the action. The plaintiff alleges that Trisan was a contractor engaged by the defendant City of Toronto that was responsible for the winter maintenance services where the slip and fall occurred. The defendant City of Toronto has brought a third party claim against Trisan which Trisan has defended. The plaintiff’s amendment motion to add Trisan as a defendant to the main action, which is opposed by Trisan, is now scheduled to be heard on March 20, 2024, having been adjourned at least twice already.
[2] The parties have exchanged affidavits on the amendment motion. One of the affidavits served by the plaintiff on the amendment motion is a 9-paragraph affidavit sworn by a lawyer for the plaintiff, Vishal Sharma. In the affidavit, Sharma describes his efforts to obtain the maintenance records from the City of Toronto between March and July of 2018. Sharma was cross-examined on his affidavit by Trisan on August 12, 2022 at which time he refused to answer a number of questions. Trisan brings this motion seeking to compel Sharma to answer four of the questions refused.[^1] The plaintiff opposes the motion. The city takes no position. For the reasons that follow, the motion is dismissed.
[3] A central issue on the amendment motion is the applicable limitation period. The slip and fall occurred in February 2018. The plaintiff’s motion to amend was brought in October 2020. The plaintiff’s position is that the claim against Trisan was not discovered or discoverable until Trisan was identified in the city’s statement of defence that was served in June 2019. Trisan’s position is that claim against it was discoverable before June 2019 and that the plaintiff failed to make reasonable enquiries.
[4] The four questions refused relate to instructions received by Sharma from the plaintiff (his client) in the period between November 2019 (when the plaintiff consented to the issuance of the city’s third party claim) and June 2020 (when Trisan delivered its defence to the third party claim):
When Mr. Sharma consented to the Third Party Claim on November 17, 2019, he had instructions to do so, correct?
It wasn’t until after Mr. Sharma received Trisan’s defence to the Third Party Claim, that he obtained instructions to bring the motion to amend the Statement of Claim, correct?
Were instructions obtained, at any point before Trisan’s defence to the TP claim, not to amend the Statement of Claim to add Trisan?
When the Plaintiff consented to the issuance of the Third Party Claim, Mr. Sharma was aware that Trisan had the ability to either respond to the Third Party Claim or plead into the main action under Rule 29, correct?
[5] The plaintiff submits that all of these questions were properly refused on the basis of privilege and/or relevance. I agree. The questions regarding Sharma’s instructions are seeking information relating to the timing and content of communications between Sharma and his client regarding strategic decisions made in the litigation. This information is subject to solicitor-client privilege and I find that the questions were properly refused on that basis alone.
[6] I also find that the plaintiff’s litigation strategy in the period of November 2019 through to June 2020 has no relevance to the issues on the plaintiff’s amendment motion. Trisan submits that that the plaintiff’s litigation strategy is relevant to the application of the sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, C. 24. Those sections provide as follows:
Basic limitation period
- 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.
Discovery
- (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).
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.
[7] Trisan submits that the plaintiff’s post-discovery litigation strategy is relevant to the following position it intends to advance on the plaintiff’s motion to amend:
o The presumption under s. 5(2) of the Limitations Act, 2002 is not rebutted where:
▪ the plaintiff had actual knowledge of the claim against the proposed defendant within the presumptive limitation period (two years from the date of loss); and,
▪ the plaintiff made a strategic litigious decision not to initiate a claim against the proposed defendant during the presumptive limitation period.
[8] Trisan’s proposed interpretation of subsection 5(2) of Limitation Act, 2002 is inconsistent with the plain wording of sections 4 and 5. Section 4 of the Act provides that the 2-year limitation period runs from the date of discovery. There is nothing in section 4 or 5 or anywhere else in the Act that makes the application of that limitation period contingent on the conduct of the plaintiff post-discovery. The effect of Trisan’s proposed test is that actual knowledge acquired during the presumptive limitation period, coupled with a litigation strategy to delay the initiation of a claim after that knowledge is acquired, would shorten the limitation period to two years from the date of the act or omission, notwithstanding the date of discovery. In that sense, Trisan’s theory is directly contrary to the underlying scheme of the Limitations Act, 2022.
[9] Trisan’s counsel was unable to point to any jurisprudence that supports their interpretation of s. 5(2) of the Act. None of the cases referenced in Trisan’s factum are supportive of this position. In oral submissions, Trisan’s counsel conceded that their position is novel, but argued that the success or failure of the position should be reserved to the associate judge hearing the motion to amend and urged me not rule on the issue in advance of that hearing. In my view, although Trisan is free to make whatever novel arguments it wants on the return of the motion to amend, it cannot use a novel argument that is contrary to the plain wording of the Limitation Act and unsupported by the jurisprudence to manufacture relevance for the purpose of a cross-examination on the motion.
Disposition
[10] I find that the four questions referenced above that were refused on the cross-examination of Vishal Sharma were properly refused both on the basis of privilege and relevance and need not be answered. Trisan’s motion is therefore dismissed.
Costs
[11] The plaintiff was entirely successful on the motion and should have their costs. In costs submissions the plaintiff sought partial indemnity costs of $3,039.14 if successful on the motion. This is approximately $500 more than the costs sought by Trisan had it been successful on the motion. Neither party objected to the other’s costs request. The plaintiff’s costs request is within the reasonable expectations of the parties. Trisan shall pay to the plaintiff their partial indemnity costs of the motion fixed at $3,039.14, inclusive of HST, payable within 30 days.
D. Michael Brown, Associate Judge
DATE: July 31, 2023
[^1]: At the hearing of the motion, Trisan’s counsel advised that they were no longer moving on a fifth refusal identified in their motion record and factum.