MOTION HEARD: February 9, 2026
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Hirmiz George, Plaintiff -AND- John Doe, et al., Defendants
BEFORE: Associate Justice Abrams
COUNSEL: A. Chopra, counsel for the plaintiff H. Motevalli/A. Mirski, counsel for the proposed defendants, Co-operators General Insurance Company, George Sadek and Suzan Hanaro
REASONS FOR DECISION
1The plaintiff seeks leave to amend his statement of claim to add two persons (George Sadek and Suzan Hanaro) and one insurer (Co-operators General Insurance Company: “Co-operators”), as parties defendant.
2The litigation arises out of an October 2019 motor vehicle accident. The plaintiff was a passenger in a vehicle alleged to have been “cut off” by an unidentified vehicle, causing the host vehicle to lose control and hit a light post.
3Relying on, inter alia, RR. 26.01 and 5.03 of the Rules of Civil Procedure, those whom the plaintiff now seeks to add to his claim are the driver, owner and insurer of the vehicle in which he was a passenger. The plaintiff does not rely on R. 5.04 and does not seek to substitute the proposed defendants for the Doe defendants but relies, rather, on the discretionary rule that permits the court to require the plaintiff to add as a party “any person who ought to have been joined…or whose presence as a party is necessary to enable the court to adjudicate effectively on the issues in the proceeding”. I note, parenthetically, that the necessity of adding the proposed parties (as opposed to the desirability of doing so) is here not explained by the plaintiff and has not been argued. In not seeking to substitute Mr. Sadak and Ms. Hanaro for the Doe defendants, the plaintiff is in essence acknowledging that his claims, brought within two years of the accident, were made (as at then) against the owner and operator of the unknown vehicle and his own insurer, only.
4For their part, the proposed defendants say that the plaintiff knew or ought to have known, as at the time of the accident (or, at least, shortly thereafter), that he had a potential claim against some or all of them and, yet, it was not until 2023 that they were advised, for the first time, that the plaintiff would be looking to add them as parties defendant. They posit that the plaintiff’s proposed pleas are statute-barred--both presumptively and having regard to the doctrine of discoverability.
5Why do they say this? With the plaintiff’s position (on this motion) being that the claims against the proposed defendants were not discoverable until 2023, reference must be had to clause 5(1)(b) of the Limitations Act, 2002. The proposed defendants submit that the limitation period here began to run when a “reasonable person with the abilities and in the circumstances of the [plaintiff] first ought have known” that he was injured and that his injury was “caused or contributed to by an act or omission” of the person(s) against whom he intends to make claim. And where a limitation period against a person has expired, s. 21 of the Limitations Act, 2002 provides that “the [statute-barred] claim shall not be pursued by adding the person as a party to any existing proceeding”.
6The plaintiff’s action was commenced in October of 2021, some two years after the accident in question but within the presumptive limitation period. The evidentiary record before me as to what was done by the plaintiff to determine the identity of those now proposed to be added as defendants--from the time of the accident until this motion was first brought in the Spring of 2023--is, to quote the proposed defendants, “wholly deficient”.
7The plaintiff has not delivered an affidavit on the motion and neither has his counsel. Instead, a law clerk in plaintiff’s counsel’s office, someone who does not address their involvement in the proceeding, their familiarity with the plaintiff, and/or how it is they came to know of the circumstances giving rise to this motion, has sworn an affidavit.
8The law clerk states that, as at the time that the claim was first issued, the plaintiff did not know the identity of the driver or owner of the vehicle “that caused the accident”. How does the law clerk know that this is so? What is the source of that information? In any event, the law clerk does not say that the plaintiff did not know (or know the identity of) the driver or owner of the vehicle in which he was a passenger. Did he? What was his relationship with the driver and/or owner of the host vehicle? How is it that, as a passenger, he did not know or couldn’t, with reasonable dispatch, determine who either or both were? If he didn’t know either or both, did he ask for the driver’s name, the owner’s name, the insurance details of the driver and/or of the owner following the accident? If not, why not? Did he conduct an MTO search of the licence plate of the host vehicle? Did he engage the services of an investigator? The law clerk does not address any of these questions, even tangentially.
9And while plaintiff’s counsel shared for the first time, during the hearing of the motion, that a police report had been requested by his office (to no avail), how is it that one of the proposed defendants was able to secure a police report in a timely way, but not the plaintiff? Were inquiries made of the police service in Peel, with the plaintiff knowing and alleging in his statement of claim that the accident at issue took place on Dundas Street, near Highway 427, i.e. in Mississauga? If not, why not? I note, parenthetically, that no request for a police report is in the record filed by the plaintiff on this motion.
10What the plaintiff has filed with the court are a few emails evidencing limited communication with the plaintiff’s own insurer--the insurer having been named as a defendant herein. There is nothing in those emails or, indeed, in the affidavit filed in support of this motion, as to any efforts made by or on behalf of the plaintiff to determine whether he had a cause of action against others and who those others might be. It was the plaintiff’s insurer that, in February of 2023, did “some digging” (Exhibit “F” to the affidavit of Emanuel Achim, sworn April 12/23).
11It bears noting, too, that plaintiff’s counsel proceeded at an exceedingly slow pace in communicating with the plaintiff’s insurer. In January of 2023, the insurer’s claims representative wrote variously: “Our office has been trying to get in touch with you since November 2021 [seeking information about the accident]” and “I continue to await the courtesy of a response from your office regarding this matter”. When, finally, plaintiff’s counsel was responsive, the information that now informs this motion was shared by the insurer defendant, i.e. information as to the identity of the three proposed defendants.
12Having failed to act with alacrity or with any sense of urgency before he made claim and, even, thereafter, and having failed to explain why or how it is that the information that his own insurer was able to unearth could not have been unearthed by him at any time before early 2023, the plaintiff now argues, relying on the principle of discoverability, that the limitation period is tolled. Further, he says, there is no actual prejudice to any proposed party because he can produce a police report and documents in respect of his damages claim. With both arguments now made by the plaintiff, I disagree.
13A plaintiff is required to act with due diligence in determining whether he has a claim. “A limitation period will not be tolled while a plaintiff sits idle and fails to investigate the matters referenced in…” clause 5(1)(a) of the Limitations Act, 2002 (Longo v. McLaren Art Centre, 2014 ONCA 526, at para. 42). That said, I accept that my role is to examine the evidentiary record to determine if there is an issue of fact or of credibility on the notion of discoverability, here invoked by the plaintiff. As the Court of Appeal opined in Pepper v. Zellers Inc., 2006 42355 (OCA), at para. 19, in doing so I am “…entitled to assess the record to determine, as a question of fact, whether there was ‘a reasonable explanation’ on the evidence demonstrating why [the identity of the three proposed defendants] could not have been determined through the exercise of reasonable diligence” before the expiry of the presumptive limitation period or, even, before this motion was brought. I have done so.
14As in Pepper v. Zellers Inc., ibid, at para. 20, and for the reasons stated in paragraphs 7-9, above, ‘[a]n examination of the evidentiary record in this case shows that the [plaintiff’s] material fail[s] entirely to address whether [the plaintiff] ought to have known [of the proposed defendants’] identity and what, if any steps, [the plaintiff] took to determine that identity”. The law clerk who swore the affidavit in support of this motion deposes, simply, that on February 7/23, the plaintiff’s own insurer wrote “…providing all the details she had found pertaining to th[e] motor vehicle accident”. That is not enough. In a decision upheld on appeal, Lockett v. Boutin, 2011 ONSC 2098, at para. 36; aff’d 2011 ONCA 809, the motions judge reasoned that “…waiting for someone to inform you [as here was done] does not satisfy due diligence”. The plaintiff’s failings in this case are exacerbated by the glacial pace of communication between plaintiff’s counsel and the plaintiff’s insurer (as referenced in paragraph 11, supra). In all of the circumstances and recognizing that the evidentiary threshold to be met by the plaintiff on this motion is low, the plaintiff has failed to demonstrate due diligence as to efforts made to determine the identity and potential liability of the proposed defendants or to raise any issue of fact or credibility on the question of discoverability.
15On the issue of prejudice, of which the plaintiffs’ counsel’s law clerk says there is none, I acknowledge that the plaintiff has or can get documentation in respect of damages1; but, can the same be said for him and the proposed defendants in respect of liability? Are there witness statements? Photographs? As Co-operators posits, by the time that it had been alerted to the plaintiff’s potential claims, the ability to canvass for witnesses, review street camera footage and/or perform a forensic analysis of the host vehicle was no longer possible. The plaintiff is silent on these issues. Then too, there can be no question but that memories will have faded, particularly with there being no evidence before me of the potential defendants having been put on notice of the possibility that a claim against them might be asserted, at any time before this motion was brought (i.e. before 2023--with the accident having taken place in 2019).
16The plaintiff’s motion is thus denied. Unless, by May 25/26, I am advised that the parties wish to make submissions on costs, I will treat the issue of costs as having been settled.
May 1, 2026
Original Signed by Associate Justice Abrams
Footnotes
- I note that, even on the issue of documentation relating to damages, the evidence is weak--with the law clerk who swore an affidavit on the merits of the motion deposing, without more, that “the relevant documents” have been preserved, and with the nature of those documents being addressed in the plaintiff’s factum, only.