By Nick Todorovic and Avery Kavanaugh
The ONSC grants a motion to add a Defendant in the face of a discoverability issue.
Background
The Plaintiff brought a motion for leave to amend the statement of claim to add the proposed defendant, CRH, as a defendant. On February 17, 2019, the plaintiff slipped and fell. On March 6, 2020, the statement of claim was issued. The motion to add CRH as a defendant was served on April 28, 2023.
CRH opposed the motion on the basis that the plaintiff’s claim against CRH is statute barred pursuant to the Limitations Act.
Associate Justice McAfee concluded that the plaintiff was successful, and that a ruling of whether the applicable limitation period had expired was an issue for summary judgment or trial. Given the low evidentiary threshold on this motion, the Court was satisfied that the plaintiff had a reasonable explanation for not discovering the claim against CRH sooner.
The Applicable Law
The applicable Rules of Civil Procedure on a motion for leave to amend a pleading where a defendant is sought to be added are Rules 1.04(1), 26.01, 5.03, and 5.04. Sections 4, 5, and 21 of the Limitations Act, 2022 (“the Act”), are also applicable. Under section 4 of the Act, claims must generally be filed within two years from its discovery date – in this case, February 17, 2019.
Section 5(2) of the Act states that a claimant will be presumed to have known of the issues giving rise to a claim on the day that the act or omission on which the claim is based took place unless the contrary is proven.
Associate Justice McAfee found that a lack of steps to ascertain a possible claim against CRH will not be fatal (see also Mancinelli v. Royal Bank of Canada, 2018 ONCA 544), and that the evidentiary threshold on this motion is low. As such, the plaintiff’s explanation for not discovering the claim earlier should be given a generous and contextual reading.
The Evidence
Evidence on the motion showed that on December 22, 2021, plaintiff’s counsel was advised during a conference call that video footage of the slip and fall existed. The video footage potentially indicated that the fall occurred on a municipal roadway. This was the first time he had been advised of any video footage.
CRH argued that the claim against it was discoverable at the earliest on April 17, 2019. However, CRH provided no evidence of reasonable steps that the plaintiff could have taken to ascertain a claim against CRH earlier, or by when the plaintiff could have obtained such information. No further evidence of any earlier “trigger” that would have caused the plaintiff to make enquiries of the involvement of other possible parties was presented.
Given the low evidentiary threshold and giving a generous contextual reading to the evidence, the Court was satisfied of a reasonable explanation for a lack of efforts. Associate Justice McAfee concluded that the issues 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.
As such, the plaintiff was successful, and leave was granted to add CRH as a defendant subject to CRH’s right to plead a limitation period defense. The plaintiff was granted partial indemnity costs of $5,000, payable by CRH.