Court File and Parties

Court File No.: CV-20-00637646 Motion Heard: 2024-05-31 Superior Court of Justice - Ontario

Re: Meaghan McGuire, Plaintiff And: Worsley Dundonald Limited and Sunny Shine Contracting and City of Toronto, Defendants

Before: Associate Justice B. McAfee

Counsel: J. Elyk, Counsel, for the Moving Party, the Plaintiff S. Hewagama, Counsel, for the Proposed Defendant, CRH Canada Group Inc. C.O.B. Dufferin Construction Company

Heard: May 31, 2024

Reasons for Decision

[1] The plaintiff Meaghan McGuire (the plaintiff) brings this motion for leave to amend the statement of claim to add the proposed defendant CRH Canada Group Inc. C.O.B. Dufferin Construction Company (CRH) as a defendant.

[2] CRH opposes the motion on the basis that the plaintiff’s claim against CRH is statute barred.

[3] On February 17, 2019, the plaintiff slipped and fell. On March 6, 2020, the statement of claim was issued. The parties agree that the within motion to add CRH was served on April 28, 2023.

[4] On a motion for leave to amend a pleading where a defendant is sought to be added, the applicable Rules of Civil Procedure are Rules 1.04(1), 26.01, 5.03 and 5.04.

[5] Sections 4, 5 and 21 of the Limitations Act, 2002, S.O. 2022, c. 24, Sched. B (the Act) are also applicable:

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.

[6] For the purposes of this motion, the presumption in s. 5(2) of the Act has been displaced. There is no issue between the plaintiff and CRH that the plaintiff did not have actual knowledge of a claim against CRH until January 20, 2022.

[7] The issue on this motion is whether the plaintiff has a reasonable explanation on proper evidence as to why the claim against CRH could not have been discovered through the exercise of reasonable diligence prior to January 20, 2022, or prior to 2 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).

[8] A lack of steps taken to ascertain a possible claim against CRH 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) (C.A.), at para. 23; Fennel v. Deol, 2016 ONCA 249, 265 A.C.W.S. (3d) 1029, at paras. 18-24.

[9] Also as stated in Mancinelli at para. 31:

Where the issue on the 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), 70 O.R. (3d) 460 (Ont. Master), at para. 45; Pepper, v. Zellers Inc. (2006), 83 O.R. (3d) 648 (C.A.) at para. 18.

[10] The evidentiary threshold on this motion is low. The plaintiff’s explanation should be given a generous contextual reading (Mancinelli at para. 24; Morrison at para. 32).

[11] With respect to the evidence on this motion, CRH argues that paragraphs 14, 17, 18 and 20 of the affidavit of plaintiff’s counsel, C. Rubin (the Rubin affidavit), and paragraphs 5, 6, 7 and 8 of the supplemental affidavit of C. Rubin (the Rubin supplemental affidavit) are inadmissible. CRH argues that the impugned paragraphs ought to be struck. CRH argues that that all impugned paragraphs fail to identify the source of the information and that certain paragraphs are also legal argument and/or relate to contentious issues that ought not to have been included in a lawyer’s affidavit. The plaintiff opposes any striking of the impugned paragraphs. In the circumstances of this motion, it is not necessary for me to determine whether the impugned paragraphs or portions of the impugned paragraphs ought to be struck. In determining the issues on this motion, it is not necessary for me to consider, refer to, or rely on the impugned paragraphs in the Rubin affidavit or in the Rubin supplemental affidavit.

[12] As set out in the Rubin affidavit at para. 8 on December 22, 2021, Rubin had a conference call with defence counsel. During the conference call he was advised that there was video footage of the slip and fall. Plaintiff’s counsel deposes that the video footage is poor quality and as such it is unclear from the video footage whether the plaintiff fell on the municipal roadway and not the sidewalk. Plaintiff’s counsel deposes that this was the first time he was advised of any video footage. Plaintiff’s counsel deposes that because the fall may have occurred on the municipal roadway, the winter maintenance company responsible for maintaining the road became a necessary party.

[13] As set out in the Rubin affidavit at paras. 10 and 11, on January 20, 2022, counsel for the City of Toronto advised Rubin that the winter roadway maintenance contract was with CRH. On January 20, 2022, CRH was put on notice of the claim.

[14] CRH argues that the claim as against it was discoverable at the earliest on April 17, 2019. There is no evidence from CRH of reasonable steps that the plaintiff could have taken to ascertain a claim against CRH earlier and by when the plaintiff could have obtained such information.

[15] There is no evidence of any earlier “trigger” that would have caused the plaintiff to make enquiries of the involvement of other possible parties (Ali v. Toronto (City), [2021] O.J. No. 4548 (Ont. Div.Ct.) at paras. 16-20).

[16] Having regard to the low evidentiary threshold and giving a generous contextual reading to the evidence before me save for the impugned paragraphs, for the purposes of this motion I am satisfied of a reasonable explanation for a lack of efforts.

[17] In the circumstances before me, the issue of whether the plaintiff could have discovered the possible claim and identity of CRH with due diligence and, if so, when the plaintiff could have done so, are issues that require consideration on a summary judgment motion or at trial.

[18] I have determined that the issue of whether the applicable limitation period has expired is an issue for summary judgment or trial. CRH does not otherwise allege prejudice.

[19] Leave is accordingly granted to add CRH and CRH shall have the right to plead a limitation period defence.

[20] If successful on this motion the plaintiff seeks substantial indemnity costs in the amount of $11,419.75 and, in the alternative, partial indemnity costs in the amount of $8,783.75. If successful, the proposed defendant seeks partial indemnity costs in the amount of $6,635.43.

[21] The plaintiff is successful and is entitled to costs. There is no conduct on the part of CRH or other basis to award costs on a substantial indemnity basis. The costs sought by the plaintiff are high. This motion was booked and confirmed as a short/regular motion. No cross-examinations took place. In all of the circumstances of this motion a fair and reasonable amount that CRH could expect to pay for costs on a partial indemnity basis is the all-inclusive amount of $5,000.00. The costs are payable by CRH to the plaintiff in the cause.

[22] Order to go as follows:

1. Leave is granted to amend the statement of claim in the form of the proposed amended statement of claim attached as Schedule “A” to the notice of motion;
2. The plaintiff shall serve the amended statement of claim within 60 days;
3. CRH is at liberty to plead a limitation period defence;
4. Costs of this motion are fixed on a partial indemnity basis in the all-inclusive amount of $5,000.00 payable by CRH to the plaintiff in the cause.

Associate Justice B. McAfee Date: June 24, 2024