Lee v. Castro et al., 2020 ONSC 1257

Full Decision

The decision of Lee v. Castro et al. serves as an important reminder on the strict application of limitation periods, particularly when it comes to the discoverability doctrine.

Facts

The Plaintiff was involved in a motor vehicle accident on January 25, 2017. She commenced an action on January 25, 2019. Months later, in November 2019, the Plaintiff sought to add Ford Credit Canada Company as a Defendant, as it was found to be an owner of the Defendant vehicle.

In advance of the second anniversary of the accident (and the presumptive expiry of the limitation period), the Plaintiff had been made aware that Ford owned the Defendant vehicle. The Plaintiff’s lawyer had received an e-mail from an adjuster at Aviva on October 29, 2018 indicating that the Defendant driver had been driving a vehicle leased from Ford. The e-mail goes on to recommend that the Plaintiff place Ford on notice for the accident.

Despite this information, Ford was not included as a named Defendant when the Statement of Claim was issued. As such, the Plaintiff brought a Motion seeking to add Ford as a named Defendant. The proposed Defendant, Ford, opposed the Motion.

Issue

The question to be decided was whether Ford could be added as a Defendant to the action two years after the date of the accident, which was the presumptive expiry of the limitation period.

Plaintiff’s Position

The Plaintiff argued that she had relied on an erroneous police report, which failed to identify the Ford as an owner of the leased Defendant vehicle. Although the Plaintiff conceded that an MTO search, which would have identified the owner of the vehicle, would have been prudent, she argued that she had demonstrated reasonable due diligence to rely on the police report.

The Plaintiff further argued that second anniversary date of January 25, 2019, when the action was commenced against the other Defendants, was not the limitation date. Instead, she argued that the date of the receipt of the e-mail from Aviva, October 28, 2018, was when the two-year limitation began to run to add Ford as a Defendant. She also argued that it could not have been known until October 29, 2018 that Ford was the owner of the vehicle and a likely Defendant in the action.

The Plaintiff argued, in the alternative, that the action was only discoverable when a medical assessment was received on May 23, 2018, revealing the severity of the injuries and therefore the viability of the action.

Law

Master Josefo pointed to sections 4 of the Limitations Act, which provides that “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.” He also pointed to section 5(1), which provides by when and how a claim is discovered, and to section 5(2), which specifies that a claimant “shall be presumed to have known of the matters… on the day the act or omission took place, unless the contrary is shown.” He ultimately noted that the Limitations Act permits a claimant to prove that he or she did not know that the injury, loss or damage occurred on the date that the act or omission took place, noting that the claimant bears the onus to displace, through proof, the above-noted presumption.

The Court further pointed to the case of Rojas v. Porto et al., 2019 ONSC 447, which states “[d]iscoverability is based on the exercise of reasonable diligence by a party”. It further states that a Plaintiff is obliged to investigate to determine the proper Defendants, and that “doing nothing is clearly not being duly diligent”. The case of Klein v. G4S Secure Solutions (Canada) Ltd., [2016] O.J. No. 2750 states that if a Plaintiff fails to make the requisite “simple inquiry”, the Plaintiff is not being duly diligent.

Master Josefo cited Kowal v. Shyiak, 2012 ONCA 512, which indicates that as long as there is ample evidence of the elements for a Plaintiff to have discovered her claim, this will suffice when it comes to determining when a limitation period begins to run. Further, in Peixeiro v. Haberman, [1997] 3 SCR 549, the Supreme Court of Canada found that “the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue”.

In Safi (Litigation Guardian of) v. Bruce N. Huntley Contracting Ltd., 2010 ONCA 545, it “defies common sense and is not what the discoverability rule is intended to accomplish” to have variability in the limitation period when the ownership of a vehicle is not immediately known. To allow this would undermine the stability and predictability intended within the Limitations Act.

Analysis

Contrary to the arguments made by the Plaintiff, Master Josefo found that an MTO search could have been done, which would have identified Ford as an owner. In fact, it was determined that the Plaintiff’s lawyer conducted these searches most of the time and that there was no explanation as to why one was not completed in this case. Master Josefo found that this lack of a good explanation why or how this was missed does not rebut the presumption. The Court found that the Plaintiff was not duly diligent and that there was no ground to add a newly discovered Defendant after the expiry of the limitation period.

Master Josefo disagreed with the Plaintiff’s alternative argument (that her cause of action did not arise until after a medical assessment in May 2019), finding that case law expressly contradicted this argument. The Plaintiff knew as of two years after the accident that she should sue the known Defendants. He noted that although her cause of action may have been uncertain, it was still sufficiently accrued for an action to be commenced. It was noted that the Plaintiff had actually commenced the action before that May 2019 date, begging the question as to why she would have done this if she truly believed that the limitation began to run after the May 2019 assessment.

Conclusion

Ultimately, the Court dismissed the Plaintiff’s Motion. The claim was fully discoverable within the presumptive two years from the date of the accident. The evidence revealed that the Plaintiff had all necessary information within the two-year limitation period after the accident, yet through inadvertence, failed to act on it.


Jessica Golosky
Written by

Jessica joined Gluckstein Lawyers as an articling student in 2017 and is a graduate of the J.D. program from the Faculty of Law at Western University. She graduated on the Dean’s Honour List and was awarded the Law Society of Ontario Prize for academic excellence.

As a law student, Jessica worked as a Research Student for Professor Richard H. McLaren and contributed to various corporate and commercial publications. Throughout her time in law school, she was actively involved in the Western Journal of Legal Studies as both a Managing Editor and Senior Editor and volunteered as an Associate Caseworker with the Family Law Team at Western’s Community Legal Services clinic. She also participated in an exchange program during her final year of law school at Stockholm University.

Prior to law school, Jessica graduated from the University of Toronto with an Honours Bachelor of Science degree with High Distinction in the areas of Psychology, Sociology, and Urban Studies.