Superior Court of Justice – Ontario

Court File No.: CV-20-00640382-0000
Date: 2025-03-28

Re: Maria Prete v. Oakdale Pharmacy

Before: Associate Justice Rappos

Counsel:
Tanzeela Ansari, for the Plaintiff
Anthony Trichilo, for the Proposed Defendant Avison Young (Canada) Inc.

Heard: March 28, 2025 (via videoconference)

Reasons for Decision

Introduction

[1] The Plaintiff claims that on September 6, 2018 she fell and injured herself while she was at 2065 Finch Avenue West, Toronto. The Plaintiff commenced this action on May 1, 2020 against the Defendant, Oakdale Pharmacy.

[2] The Plaintiff brings a motion for leave to add three new defendants, Bay International Inc., Avison Young (Canada) Inc., and Long & Morris Property Management Ltd., and to amend her statement of claim.

[3] Oakdale, Bay International, and Long & Morris do not oppose the motion.

[4] Avison Young opposes the motion on the basis that the Plaintiff brought her motion outside of the applicable limitation period, and as a result any claim against it is statute barred and the motion must be dismissed.

Facts

[5] The following key facts are not in dispute:

(a) On May 7, 2020, a representative of Oakdale informed counsel to the Plaintiff via e-mail that the Plaintiff fell outside of the pharmacy and fell in the lobby area of the building. The representative indicated that they had e-mailed building management on the day of the incident, and provided contact information for a property manager with Avison Young;

(b) On August 20, 2020, the Plaintiff obtained a corporate search for each of Avison Young and for Bay International. A search was obtained on September 3, 2020 for Long & Morris;

(c) On May 25, 2021, counsel for the Plaintiff e-mailed the Toronto Civil Motions Scheduling Unit about booking a motion to amend the claim as against Bay International and Long & Morris;

(d) On May 26, 2021, the Plaintiff received confirmation that the motion was scheduled for July 19, 2021. However, the motion did not proceed and was vacated because counsel to the Plaintiff inadvertently did not serve Avison Young as a proposed defendant in the motion;

(e) On April 28, 2022, counsel to the Plaintiff e-mailed the Toronto Civil Motions Scheduling Unit about booking the motion to amend the statement of claim against all three proposed defendants;

(f) On May 5, 2022, court staff confirmed that the motion was scheduled for February 1, 2023;

(g) None of the proposed defendants were consulted by the Plaintiff regarding the filing of the requisition to schedule the motion or the scheduling of the motion;

(h) On December 5, 2022, counsel to the Plaintiff sent a letter to each of the proposed defendants that notified them of the intention to commence an action against them as a result of the incident on September 6, 2018. The letters did not refer to the pending motion; and

(i) On January 11, 2023, counsel to the Plaintiff sent the motion record to Avison Young and Bay International by regular mail, and by e-mail to the insurance adjuster for Long & Morris. [1]

[6] I have confirmed with the court file that the Plaintiff’s motion record was filed with the court on January 19, 2023.

Issue

[7] The parties agree that at any stage of the proceeding the court may add a party, and 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. [2]

[8] The only prejudice argued by Avison Young is the expiry of a limitation period. The law is clear that the expiry of a limitation period is a form of non-compensable prejudice. [3]

[9] As a result, the only issue that must be determined on this motion is whether the Plaintiff brought her motion to amend the statement of claim to add the proposed defendants within the applicable limitation period.

Analysis

[10] Generally, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. [4]

[11] A proceeding is commenced through the issuance of, among other things, a statement of claim, notice of action, or notice of application. [5]

[12] Where a plaintiff wishes to add a new defendant to the proceeding, the generally accepted procedure is to bring a motion to add under subrule 5.04(2) of the Rules of Civil Procedure as opposed to commencing a second action and having the two actions consolidated. [6]

[13] Subsection 21(1) of the Limitations Act, 2002 provides that 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. [7]

[14] On the issue of discoverability of the claim as against Avison Young, the Plaintiff, through counsel, was first notified of Avison Young’s identity as the property manager for the premises through the e-mail from Oakdale on May 7, 2020.

[15] The Plaintiff argues that the claims were discoverable on August 20, 2020 as against Avison Young and Bay International, and on September 3, 2020 for Long & Morris, which are the dates the Plaintiff obtained the corporate searches for the proposed defendants.

[16] The parties agree that the running of limitation periods was suspended from March 16, 2020 to September 13, 2020 due to the COVID-19 pandemic.

[17] Avison Young does not argue for an earlier discoverability date than September 14, 2020, being the date that limitation periods began to run again in Ontario.

[18] Avison Young argues that the Plaintiff’s motion was commenced after the expiry of the limitation period on September 14, 2022.

[19] It relies on Becerra v. Ronchin, where Master Albert held, in the context of a motion for leave to amend a pleading under the Construction Lien Act, that “the limitations clock does not stop running until a proceeding is launched. In the case of a motion to amend a pleading, the proceeding is launched either when the motion record is served (arguably) or more correctly when the motion record is filed with the court. This is akin to the issuance of an action or application stopping the limitations clock where a plaintiff is launching a fresh proceeding. Service of an intention to issue a proceeding prior to issuance does not initiate the proceeding. Similarly, service of a notice of motion together with a without prejudice letter and without a motion record does not constitute the launching of a proceeding to amend a pleading in an existing action.” [8]

[20] Avison Young also relies on Moss v. Joseph Brant Memorial Hospital, where Justice Corbett held, in the context of a motion to add a new defendant in a medical malpractice action, that “the effective date of commencement of proceedings against Dr. Calzonetti is November 17, 2003, the date of delivery of the motion materials to add her as a defendant”. [9]

[21] I directed the parties to take into consideration the recent decision of Justice Bordin in Shaker v. Lovo Corp et al., where the Court held that on a motion to add Katie Miller as a defendant in an action, “the rights of the plaintiff and Ms. Miller are determined as of the date the motion to add her as a defendant was served, not the date the motion is heard.” [10] Justice Bordin relied on the Divisional Court’s holding in Philippine v. Portugal that “the law is clear that the parties’ rights are determined as of the date of service of the motion.” [11]

[22] Counsel for the Plaintiff was unable to direct me to any decision that holds that the scheduling of the motion itself constituted commencing a proceeding as against the party to be added to the action through a motion.

[23] As the date of discoverability is accepted to be September 14, 2020, the Plaintiff was required to commence a proceeding against Avison Young by September 12, 2022. Based on the authorities cited above, the motion was commenced on either January 11, 2023 (date the motion record was sent out for mailing), January 18, 2023 (the date the motion record was effectively served on Avison Young pursuant to subrule 16.06(2)), or January 19, 2023 (the date the motion record was filed with the Court). All of these dates are after September 14, 2022. Even the date relied on by the Plaintiff, being December 5, 2022 (date of the notice letter), was still almost two months after the expiry of the limitation period.

[24] The Plaintiff’s motion is clearly out of time and was commenced beyond the two-year limitation period set out in section 4 of the Limitations Act, 2002. As a result, pursuant to section 21, the claim cannot be pursued by adding Avison Young to the existing proceeding.

[25] Counsel for the Plaintiff argues that the motion should still be granted, because Avison Young has not argued that it is prejudiced by the motion, that the Plaintiff has preserved relevant evidence, that examinations for discovery have yet to take place, and that Avison Young learned of the proceeding and motion less than four (4) months after the expiry of the limitation period. Counsel also notes that she took carriage of the action on behalf of the Plaintiff in November 2022 because of the untimely death of prior counsel.

[26] The Plaintiff essentially argues that the Court has discretion to extend a limitation period in special circumstances. It relies on the Court of Appeal’s decision in Chiarelli v. Wiens. However, that decision was rendered in February 2000, before the enactment of the current Limitations Act, 2002. The Plaintiff also relies on Dufferin Communications Inc. v. Ducic & Fleming Fitness Inc., which dealt with a motion brought to validate service of a statement of claim more than four years following the attempted service.

[27] The Court of Appeal dealt with the application of the special circumstances’ doctrine under the Limitations Act, 2002 in Joseph v. Paramount Canada's Wonderland. In that case, the Court of Appeal held that the Legislature did not intend to preserve the court’s common law discretion to extend limitation periods under the Limitations Act, 2002. [12]

[28] The Court of Appeal noted that the late addition of parties to an existing action was one of the main situations where the doctrine of special circumstances was traditionally applied at common law. [13] The Court of Appeal held that no specific provision of the statute refers to the doctrine of special circumstances or allows a court to extend or suspend the running of the limitation period based on special circumstances. To the contrary, section 21 of the statute specifically precludes the addition of parties to an existing action after the expiry of a limitation period. [14]

[29] With respect to the Dufferin Communications case, it is distinguishable, as it does not deal with a limitation issue. There was no argument that the plaintiff had commenced the action outside the applicable limitation period. The issue was that the plaintiff was unable to effect personal service within six months of the issuance of the claim, and sought an order validating service by email that had occurred less than seven months after the claim had been issued. The issue also was that the motion to validate was not brought until almost four years after email service. [15] The principles of that decision have no application to a motion to amend a claim to add a party.

[30] As a result of the Court of Appeal’s decision, the Court does not have discretion to extend the limitation period with respect to a claim as against Avison Young.

Disposition and Costs

[31] Accordingly, the limitation period to add Avison Young as a defendant in this action had already expired when the Plaintiff commenced the motion against Avison Young, and thus the motion must be dismissed in accordance with subsection 21(1) of the Limitations Act, 2002.

[32] With respect to the unopposed proposed defendants Bay International and Long & Morris, I raised the issue of whether the relief should be granted as against them, since the same facts and legal analysis applies to them as well.

[33] Counsel to the Plaintiff stressed that these proposed defendants made a conscious decision not to oppose the motion. Additionally, counsel advised the Court that the Plaintiff had served a motion record against Bay International and Long & Morris by regular mail on July 5, 2021. This was the motion that was returnable on July 19, 2021 and which was vacated as it was not confirmed by the Plaintiff.

[34] Given the lack of opposition by Bay International and Long & Morris, and given that they were served with a motion record to add them as defendants within the two-year period following September 14, 2020 (even though that motion record appears to have not been filed with the Court and that motion did not proceed), I am prepared to grant the motion as against Bay International and Long & Morris. However, the granting of the motion is without prejudice to the right of Bay International and Long & Morris to plead a limitation defence in the action.

[35] With respect to costs, the Plaintiff submits that it would not have sought costs if it was successful on the motion, and that no costs should be awarded in favour of Avison Young.

[36] Avison Young submits that it is entitled to costs on a partial indemnity basis in the amount of $5,460.52 all inclusive.

[37] Costs of a step in a proceeding are in the discretion of the Court, as set out in section 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider, in addition to the result in the proceeding, in exercising such discretion. Those factors include “(0.a) the principle of indemnity” and “(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”

[38] The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances. [16] Additionally, depriving a successful party of costs is only done in rare circumstances. [17]

[39] In my view, Avison Young is entitled to its costs on this motion. It successfully defended the motion, and had a reasonable expectation that it would be awarded costs if successful. The amount sought by Avison Young is reasonable in the circumstances, especially given that there were multiple prior appearances in connection with this motion. There is no reason why costs should not be awarded to the successful party.

[40] As a result, I hereby fix costs payable by the Plaintiff to Avison Young in the all-inclusive amount of $5,000, payable within 30 days.

[41] The parties shall agree to a form of draft order and send it to my Assistant Trial Coordinator for my review.

Associate Justice Rappos
Date: March 28, 2025

Endnotes

[1] The motion was originally scheduled for February 1, 2023. It was subsequently adjourned to February 23, 2024, August 13, 2024, and eventually March 28, 2025.

[2] Subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[3] Klassen v. Beausoleil, 2019 ONCA 407, para. 26; Polla v. Croatian (Toronto) Credit Union Ltd., 2020 ONCA 818, para. 32.

[4] Section 4 of Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[5] Subrules 1.02 and 14.01 of the Rules.

[6] Attayee v. City of Pickering, 2015 ONSC 7701, para. 51.

[7] Subsection 21(1) of the Act.

[8] Becerra v. Ronchin, 2016 ONSC 4232, para. 41.

[9] Moss v. Joseph Brant Memorial Hospital, para. 38.

[10] Shaker v. Lovo Corp et al., 2025 ONSC 1549, para. 14.

[11] Philippine v. Portugal, 2010 ONSC 956 (Div Ct), para. 34.

[12] Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469, para. 13.

[13] Ibid., para. 16.