Court File and Parties

COURT FILE NOS.: CV-23-00700904-0000 MOTION HEARD: 2024-11-15

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ILICEA, plaintiff AND: TORONT TRANSIT COMMISSION (TTC) et al, defendants

BEFORE: ASSOCIATE JUSTICE R. FRANK

COUNSEL: L. D’Souza for the plaintiff K. Pillay for the proposed defendants, Kai Bong Tong and Po-Chun Eleana Tong

HEARD: November 15, 2024

REASONS FOR DECISION

[1] This is a motion by the plaintiff, Cristiana Ilicea, for an Order amending the statement of claim to: (i) correct the name of the defendant, Toront Transit Commission (TTC), to “Toronto Transit Commission (TTC)”; and (ii) add the proposed defendants, Kai Bong Tong (“Proposed Defendant Kai Bong”) and Po-Chun Eleana Tong (“Proposed Defendant Po‑Chun”), as defendants to the action, and to remove the defendant John Doe from the action.

[2] TTC takes no position on the motion.

[3] The plaintiff’s position in its factum and in its initial submissions at the hearing of the motion was that there is no bar under the Limitations Act, 2002, S.O. 2002, c. 24, Sched B. (the “Limitations Act”) to the addition of the proposed defendants and, alternatively, that misnomer applies to both proposed defendants.

[4] The proposed defendants’ position in their responding factum was that they both opposed the motion. In responding submissions at the hearing of the motion, the Proposed Defendant Po‑Chun maintained the position that the proposed amendments to add her to the action should not be permitted because they are statute barred under the Limitations Act, and that misnomer is not available to the plaintiff in the current circumstances. However, the Proposed Defendant Kai Bong conceded that misnomer applies to him.

[5] In the plaintiff’s reply submissions at the hearing of the motion, the plaintiff conceded that misnomer does not apply to the Proposed Defendant Po‑Chun and that leave to amend to add the Proposed Defendant Po‑Chun is only available if the claim against her is not statute barred under the Limitations Act, 2002.

[6] In light of the modified positions of the proposed defendants and the plaintiff at the hearing of the motion: (i) the proposed amendment to correct the name of the TTC defendant proceeded on an unopposed basis; (ii) the proposed amendment to add the Proposed Defendant Kai Bong on the basis of misnomer and in place of the defendant “John Doe” is unopposed; and (iii) the parties joined issue and made submissions on whether leave to amend the statement of claim to add the Proposed Defendant Po‑Chun should be denied on the basis that the claim against her is statute barred under the Limitations Act.

[7] For the reasons that follow, the plaintiff’s motion is granted.

A. FACTS

[8] This action arises from a motor vehicle accident that occurred on June 21, 2021, at or near the intersection of Finch Avenue East and Kenneth Avenue, in Toronto, Ontario.

[9] The statement of claim alleges that the plaintiff was a passenger on a bus operated by the TTC that was struck from behind by a passenger vehicle. Following the accident, the plaintiff was transported to hospital by ambulance.

[10] On May 31, 2023, a law clerk working with the previous lawyers for the plaintiff made a phone call and sent an email to the Accident Benefits Adjuster for the TTC. In the call and email, the law clerk requested a copy of the police report or any third party information available with respect to the subject accident. After the law clerk received an absence alert in response to the email to the TTC Accident Benefits Adjuster, she sent a follow-up email to the general email address for TTC accident benefits claims.

[11] On May 31, 2023, the law clerk also attempted to retrieve the motor vehicle accident report through the Ministry of Transportation website, but she was unsuccessful.

[12] On June 1, 2023, the law clerk sent correspondence by regular mail to the Freedom of Information Office of the TTC, requesting the complete file and motor vehicle accident report with respect to the accident.

[13] There is no evidence that a response was provided to any of the above inquiries.

[14] The plaintiff commenced this action by statement of claim issued on June 12, 2023 naming Toront Transit Commission (TTC) and John Doe as defendants. John Doe was described as the individual who at all material times was the driver of a motor vehicle that rear-ended the TTC bus on the date of the subject accident. The name of the TTC was misspelled as “Toront Transit Commission (TTC)” rather than “Toronto Transit Commission (TTC)”. The statement of claim was served on the TTC on June 14, 2023.

[15] On June 29, 2023, the plaintiff’s former lawyer received email correspondence from a lawyer with the TTC legal department indicating that he had been assigned to respond to the plaintiff’s claim against the TTC. The email indicated that the TTC bus had been rear-ended by a motorist who the TTC believed was at fault. The motor vehicle accident report for the accident was attached to the email and it identified the operator and owner of the vehicle that struck the TCC bus as “Kai B. Tong”.

[16] The plaintiff retained new lawyers in 2024. On March 28, 2024, the plaintiff’s new lawyers sent a notice letter by regular mail to the Proposed Defendant Kai Bong at the address provided in the motor vehicle accident report. The letter notified the Proposed Defendant Kai Bong that a civil action would be commenced against him for the damages arising from the June 21, 2021 accident.

[17] On the same date, the plaintiff’s lawyers sent a notice letter to the Bodily Injury Department of Aviva Insurance Company notifying Aviva that they had been retained by the plaintiff and that a civil action for damages would be commenced against their insured and driver of the vehicle, Kai B. Tong.

[18] On March 28, 2024, the plaintiff’s lawyers sent email correspondence to the TTC lawyer confirming that they had been retained by the plaintiff, advising that they would be bringing a motion to add the driver and owner of the third-party vehicle and driver of the TTC bus to the statement of claim, and requesting the incident report or video footage regarding the incident.

[19] On April 1, 2024, the plaintiff’s lawyers obtained an MTO 3 Year Driver Record with Address search based on the driver’s licence of the driver listed in the motor vehicle accident report. It showed the driver’s full name as Kai Bong Tong and his registered address as 131 McCabe Crescent, Thornhill, Ontario, L4J 2S6.

[20] Also on April 1, 2024, the plaintiff’s lawyers obtained an MTO Plate/VIN by Date with Address search of the licence plate listed on the motor vehicle accident report showing the registered owners of vehicle involved in the accident were Kai Bong Tong and Po-Chun Eleana Tong, both of whom had a registered address at 131 McCabe Crescent, Thornhill, Ontario, L4J 2S6.

B. ISSUES

[21] In light of the modified positions of the parties, the only issue to be determined on this motion is whether the claim against the Proposed Defendant Po‑Chun is statute barred under the Limitations Act.

C. LAW AND ANALYSIS

(i) Where a limitation period may have expired, the Limitations Act establishes the test for adding parties

[22] Subrule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides for the addition of parties during a proceeding:

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.

[23] Section 21(1) of the Limitations Act prohibits the addition of a party to a proceeding where the limitation period has expired:

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.

[24] Sections 4 and 5 of the Limitations Act provide as follows:

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.

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).

(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.

[25] The Court of Appeal has explained the applicable principles with respect to a motion to add a party to a proceeding after the expiry of the presumptive limitation period as follows:

[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.

[30] Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable “before the expiry of the limitation period”, without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.

[31] The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court’s finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.

[32] Second, the plaintiff must offer a “reasonable explanation on proper evidence” as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff’s explanation should be given a “generous reading”, and considered in the context of the claim: Mancinelli, at paras. 20 and 24. [^1]

(ii) Has the plaintiff overcome the presumption under s. 5(2) of the Limitations Act?

[26] As explained in Morrison, in order to overcome the presumption under s. 5(2) of the Limitations Act, the plaintiff must lead evidence as to the date the claim was actually discovered, which evidence can be tested and contradicted by the proposed defendant. For this part of the test, the plaintiff does not have the onus to show due diligence to rebut the presumption under s. 5(2). [^2]

[27] Here, the evidence is that the actual discovery of the claim against the Proposed Defendant Po‑Chun occurred on April 1, 2024 when the plaintiff’s lawyers obtained the results of an MTO Plate/VIN search showing that the Proposed Defendant Po‑Chun was one of the registered owners of vehicle involved in the accident. Absent any contrary evidence from the Proposed Defendant Po‑Chun, this satisfies the first part of the test under Morrison and displaces the presumed limitation period under s. 5(2).

(iii) When a reasonable person ought to have known of the claim against the Proposed Defendant Po‑Chun

[28] On a motion to amend to add a party, the parties’ rights in relation to the limitation period crystalize on the date the motion is served. [^3] Here, the plaintiff served the motion record seeking an order for leave to amend her claim to include the Proposed Defendant Po‑Chun on July 22, 2024, which crystalized the parties’ rights in relation to the limitation period. Working backwards, the plaintiff’s claim against the Proposed Defendant Po‑Chun would be statute-barred if the plaintiff discovered it before July 22, 2022.

[29] On this motion, the April 1, 2024 date of actual discovery that the Proposed Defendant Po‑Chun was one of the owners of the vehicle involved in the accident would bring the claim within the limitation period. As the proposed defendant relies on “reasonable discoverability” to contend the claim was brought outside the prescription period, I must 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)”. [^4]

[30] The plaintiff acknowledges that she had the information necessary to determine ownership of the vehicle involved in the subject accident once the motor vehicle accident report became available. [^5] The motor vehicle accident report listed the plate number of the subject vehicle, and with that information a routine MTO Plate/VIN search was a readily available means of determining the identity of the owner(s). Based on this acknowledgement by the plaintiff, reasonable discoverability would not extend beyond June 29, 2023, the date plaintiff’s counsel received the motor vehicle accident report. Thus, the question to be determined is whether the plaintiff ought to have known that the Proposed Defendant Po-Chun was a co-owner of the vehicle involved in the accident before June 29, 2023. In making that determination, I must assess whether the plaintiff has provided a reasonable explanation on proper evidence as to why the claim could not have been discovered earlier through the exercise of reasonable diligence. [^6]

[31] The Proposed Defendant Po-Chun argues that:

(a) the plaintiff discovered the claim on the date of the motor vehicle accident because she knew about all of the elements of discoverability required under s. 5(1)(a) as of that date;

(b) there is no evidence that there was a change in the plaintiff’s health or situation following the date of the motor vehicle accident that would lead to the delayed discovery of the claim;

(c) the plaintiff has not provided a sufficient explanation to support a finding that the claim could not have been discovered earlier than June 29, 2023 through the exercise of reasonable diligence; and

(d) based on the evidence, the court should find that the delayed discovery of the Proposed Defendant Po‑Chun’s identity was because of the plaintiff’s failure to make timely inquiries.

[32] I accept that this is not a case where it was initially unknown to the plaintiff that there were potential tortfeasors other than the TTC. [^7] However, this is also not a case in which, based on the information available to the plaintiff at the time of the accident, the identity of the tortfeasor, namely the owner(s) of the vehicle involved in the accident, could be determined through a public or routine search mechanism. [^8] In order for the plaintiff to be in a position to determine the name of the owners of the vehicle involved in the accident, she needed the motor vehicle accident report that identified the licence plate number of the vehicle. Therefore, in this case, the assessment of the plaintiff’s due diligence turns on the conduct of the plaintiff to obtain the motor vehicle accident report that contained the licence plate information.

[33] Relying on this court’s decision in Reimer, the Proposed Defendant Po‑Chun submits that timely and repetitive inquiries to the TTC would have allowed the plaintiff to identify the Proposed Defendants Po‑Chun within 30-60 days after the loss. In her factum, the Proposed Defendant Po‑Chun argues that the plaintiff “negligently did not request a motor vehicle accident report until 3 weeks before the limitation period was set to expire”.

[34] I do not accept these arguments on the facts before me. The motor vehicle accident report was in the possession of the TTC. No public or routine search was available to the plaintiff to obtain it. The plaintiff’s former lawyer requested a copy of the motor vehicle accident report from the TTC several weeks before the expiry of the presumptive limitation period. There is no evidence of a response to those inquiries. The defendant did not cross-examine the plaintiff to determine if a response was eventually received, and there is no evidence that the TTC sent a response or would have provided a response to the plaintiff within a certain time period following an inquiry. The means by which the plaintiff obtained the information was by commencing this action and serving it, and it is not clear that the necessary information would have been provided by the TTC prior to the service on it of a statement of claim.

[35] As the Court of Appeal has explained, on a motion to amend to add a defendant, the evidentiary threshold is low and the plaintiff’s explanation should be given a “generous reading” and considered in the context of the claim. [^9] In my view, considering the explanation given in the context that there was no simple procedure to ascertain the identity of the owner(s) of the vehicle involved in the accident, there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. [^10] It would not be appropriate in the circumstances of a motion to amend to determine that the plaintiff’s counsel ought to have made additional inquiries or started the inquiries of the TTC sooner to obtain the motor vehicle accident report. [^11] As Chown J. stated in Zeppieri:

To make a finding that [the plaintiff’s lawyer] was required to go farther than he did requires a determination as to the standard of practice of a personal injury lawyer in the circumstances. It is not appropriate for me to determine the standard of practice of a personal injury lawyer in a motion to amend a claim. Doing so would involve an issue of credibility or fact warranting a trial or summary judgment motion. [^12]

[36] In the result, I find that there is an issue of credibility or fact involved in the determination of whether the amendment was sought within two years of the claim being discovered, and it is not plain and obvious that the limitation period has expired. [^13] Therefore, the date of reasonable discovery cannot be determined at this stage and should be determined at a later stage in the proceedings. [^14] In these circumstances, leave should be granted to the plaintiff to amend the statement of claim to add the Proposed Defendant Po-Chun, and leave should also granted to the defendant to plead a limitation defence. [^15]

D. DISPOSITION AND COSTS

[37] For the reasons outlined above, the plaintiff’s motion is granted.

[38] With respect to costs, the parties agreed that costs should be fixed and payable to the successful party in the amount of $2,500, inclusive of disbursements and taxes. As the plaintiff was successful on this motion, the Proposed Defendants, Kai Bong Tong and Po-Chun Eleana Tong, shall pay the plaintiff costs of the motion fixed in the amount of $2,500, inclusive of disbursements and taxes.

[39] I order as follows:

1. The plaintiff is granted leave to amend the statement of claim in the form attached at Tab 6 of the plaintiff’s motion record, including to: a. correct the name of the defendant, Toront Transit Commission (TTC), to “Toronto Transit Commission (TTC)”; b. add the proposed defendants, Kai Bong Tong and Po-Chun Eleana Tong, as defendants to the action; and c. remove the defendant, John Doe, from the action.

2. With respect to the amended claim against the Proposed Defendant Po‑Chun Eleana Tong, leave is granted to plead a limitation defence.

3. The Proposed Defendants, Kai Bong Tong and Po-Chun Eleana Tong, shall pay the plaintiff costs of this motion fixed in the amount of $2,500, inclusive of disbursements and taxes, within 30 days.

DATE: November 25, 2024 R. Frank Associate J.

Footnotes

[^1]: Morrison v Barzo, 2018 ONCA 979 (“Morrison”) at paras 29-32 [^2]: Morrison at para 31 [^3]: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 (“Mancinelli”) at paras 5 and 16; Lue v. Loblaws Supermarkets Limited, 2023 ONSC 3101 at para 5; Computer Enhancement Corporation v. J.C. Options et al., 2013 ONSC 4548 [^4]: Morrison at para 29. Unlike the situation in Morrison where the issue was when the plaintiffs in that case discovered facts relating to the proposed defendants’ negligence (see Morrison at para 33), in this case the discoverability issue does not turn on when the plaintiff discovered facts relating to the negligence of the Proposed Defendant Po‑Chun. On this motion, the issue is identity of the tortfeasor(s), and discoverability turns on the timing of the identification of the Proposed Defendant Po‑Chun’s involvement in the matters in issue (as the owner of the vehicle). [^5]: This is consistent with the views expressed by the Court of Appeal that discoverability is not extended once it is possible to run a routine motor vehicle registration search; see Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545 (“Safai”) at para 18 [^6]: Mancinelli at para 20 [^7]: For example, see Lue v Loblaws at paras 7-8 [^8]: Safai at para 19; Reimer v. Toronto (City), 2020 ONSC 1661 (“Reimer”) at para 32 [^9]: Mancinelli at para 24; Pepper v. Zellers Inc. (Zellers Pharmacy), at para 14. Context is considered to ensure that the plaintiff is not required to meet too high an evidentiary threshold; Mancinelli at para 26 [^10]: Safai at para 20 [^11]: Zeppieri v. Shahid, 2021 ONSC 2858 (“Zeppieri”) at para 44 [^12]: Zeppieri at para 45 [^13]: Mancinelli at para. 31; Morrison at para. 61; Zeppieri at para 28 [^14]: Morrison at para 30 [^15]: Mancinelli, at para 34