Court File and Parties
MOTION HEARD: 20230531
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Glenn Uy and Susan Leung, Plaintiffs
AND:
Natalie Hadad Lewis, David Patricio Marques and Cityscape Construction Corp., Defendants
BEFORE: Associate Justice B. McAfee
COUNSEL: L. Roche, Counsel, for the Plaintiffs
R. Pokharel, Counsel, for the Proposed Defendants Jorge Denis Valle and Valle Construction
HEARD: May 31, 2023
REASONS FOR DECISION
[1]
Background
This is a motion brought by the plaintiffs Glenn Uy and Susan Leung (the plaintiffs) for an order granting leave to amend the statement of claim to add Jorge Denis Valle and Valle Construction (the proposed defendants) as defendants.
2Counsel for the plaintiffs advises that the defendants David Patricio Marques (Marques) and Cityscape Construction Corp. (Cityscape) have confirmed that they take no position on the motion. No one appeared on behalf of the defendant Natalie Hadad Lewis (Lewis). The proposed defendants oppose the motion.
3Counsel for the plaintiffs confirms that they take no issue with the responding affidavit being in the name of counsel for the proposed defendants who appears on this motion.
4This simplified procedure action arises as a result of a renovation at 140 Beaconsfield Avenue Toronto (140). According to the statement of claim Marques is the owner of 140 and the principal of Cityscape, a construction company. Lewis is also an owner of 140. 140 is a semi-detached home that shares a demising wall with 138 Beaconsfield Avenue Toronto (138). 138 is owned and occupied by the plaintiffs.
5The plaintiffs allege that on or about February 22, 2020, the defendants commenced renovations at 140. The plaintiffs allege that in or about this time the plaintiffs noticed the accumulation of a significant amount of dust within 138 that had migrated from 140. The plaintiffs allege that the defendants were negligent in the performance of the renovations at 140, creating a risk to neighbouring properties. The plaintiffs also allege liability in nuisance. The plaintiffs claim the amount of $200,000.00 for damages including property damage.
6On November 19, 2021, the statement of claim was issued. On November 22, 2021, the statement of claim was served. In March and April 2022, counsel for the plaintiffs wrote to the defendants requesting a statement of defence. At the time this motion was served, a statement of defence had not yet been served.
7On or about July 8, 2022, Marques advised plaintiffs’ counsel that he hired Valle Construction to perform all or part of the demolition work at 140. On or about July 8, 2022, the plaintiffs were provided with an invoice dated March 5, 2020, issued by Valle Construction to Marques for demolition work. On August 4, 2022, plaintiffs’ counsel sent a letter to the proposed defendants providing notice of the claim.
8The plaintiffs seek leave to amend the statement of claim to add the proposed defendants. There are no proposed amendments to the original pleadings of liability in negligence and nuisance.
[9]
The Law
Rule 26.01 of the Rules of Civil Procedure provides as follows:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
10Rule 5.04(2) of the Rules of Civil Procedure provides as follows:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
11Sections 4, 5 and 21 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the Act) provides in part as follows:
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.
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 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.
Adding Party
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[12]
Analysis
For the purposes of this motion, the presumption in s. 5(2) of the Act has been displaced. There is no issue between the parties that the plaintiffs did not have actual knowledge of a claim against the proposed defendants until July 8, 2022.
13The issue on this motion is whether the plaintiffs have a reasonable explanation on proper evidence as to why the claim against the proposed defendants could not have been discovered through the exercise of reasonable diligence prior to July 8, 2022, or prior to two years before the bringing of this motion (Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, at para. 20, Morrison v. Barzo, 2018 ONCA 979, at para. 32).
14The evidentiary threshold on this motion is low. The plaintiffs’ explanation should be given a generous contextual reading (Mancinelli at para. 24).
15A lack of steps taken to ascertain a possible claim against the proposed defendants is not fatal. As stated in Mancinelli at para. 30: A plaintiff’s failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time. Instead, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b): Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35 (Ont. C.A.), at para. 23; Fennel v. Deol, 2016 ONCA 249, 265 A.C.W.S. (3d) 1029 (Ont.C.A.), at paras. 18, 24.
16The affidavit of K. Hamerlik filed in support of the motion states at para. 8 that the plaintiffs could not reasonably have learned of the involvement and/or identities of the proposed defendants without being advised of same by the named defendants.
17There is no evidence of any “trigger” that would have caused the plaintiffs to make enquiries regarding the involvement of other possible contractors or sub-contractors (Ali v. Toronto (City), [2021] O.J. No. 4548 (Ont. Div.Ct.), at paras. 16-20)
18As stated in Mancinelli at para. 31: 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: Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Ont. S.C.J.), at para. 45; Pepper [v. Zellers Inc. 2006 CanLII 42355 (Ont. C.A.)], at para. 18.
19There is no evidence from the proposed defendants of reasonable steps that the plaintiffs could have taken to ascertain a claim against the proposed defendants earlier and by when the plaintiffs could have obtained such information.
20Having regard to the low evidentiary threshold, and giving the evidence filed by the plaintiffs a generous, contextual reading, for the purpose of the within motion the plaintiffs have provided a reasonable explanation for the lack of efforts. The explanation is that the plaintiffs could not have learned of the possible claim against the proposed defendants and the identity of the proposed defendants without being advised by the defendants.
21In these circumstances, the issue of whether the plaintiffs could have discovered the possible claim and identity of the proposed defendants with due diligence and, if so, when the plaintiffs could have done so are issues that require consideration on a summary judgment motion or at trial.
[22]
Disposition
Leave is granted to add the proposed defendants and the proposed defendants shall have the right to plead a limitation period defence. In the event that leave to amend was granted, the plaintiffs confirmed that they did not take issue with the proposed defendants pleading a limitation period defence.
[23]
Costs
No costs outlines were exchanged or brought to the hearing contrary to Rule 57.01(6) (see also Notice to Profession – Toronto, C.4, para. 6). The plaintiffs seek the all-inclusive amount of $1,500.00 if successful. The proposed defendants seek the all-inclusive amount $5,000.00 if successful and take no issue with the quantum sought by the plaintiffs if the plaintiffs are successful. The plaintiffs are successful on the motion and are entitled to costs in the all-inclusive amount of $1,500.00. In my view an order that these costs be payable to the plaintiffs in the cause is more just in all of the circumstances of this matter. Costs of this motion are fixed in the all-inclusive amount of $1,500.00 payable by the proposed defendants to the plaintiffs in the cause.
[24]
Order
Order to go as follows:
Leave is granted to amend the statement of claim in the form of the proposed amended statement of claim found at Schedule “A” to the simplified procedure motion form dated April 24, 2023, tab 1 of the amended amended motion record. The proposed defendants shall be at liberty to plead a limitation period defence.
Costs of the motion are fixed in the all-inclusive amount of $1,500.00 payable by the proposed defendants to the plaintiffs in the cause.
Associate Justice B. McAfee
Date: August 29, 2023