The Plaintiff, Meaghan McGuire (“the plaintiff”), brought a motion for leave to amend the statement of claim to add the proposed defendant, CRH Canada Group Inc. C.O.B. Dufferin Construction Company (“CRH”). CRH opposed the motion on the basis that the plaintiff’s claim against CRH was statute barred.
Facts
On February 17, 2019, the plaintiff slipped and fell. On March 6, 2020, the statement of claim was issued. On December 22, 2021, plaintiff counsel and defence counsel had a conference call. During the call, defence counsel advised that there was video footage of the slip and fall. The quality of the video was poor and it was unclear whether the plaintiff fell on the municipal roadway and not the sidewalk. This was the first time that plaintiff counsel was advised of any video footage. The municipal roadway, located in the City of Toronto, was maintained during the winter months by CRH. CRH was put on notice of the claim on January 20, 2022. The motion to add CRH was served on April 28, 2023.
It was the plaintiff’s position that because the fall may have occurred on the municipal roadway, the winter maintenance company responsible for maintaining the road became a necessary party.
For the purpose of this motion, the presumption in section 5(2) of the Limitations Act, 2002, S.O. 2022, c. 24, Sched. B (“the Act”) was displaced. The plaintiff and CRH agreed that the plaintiff did not have actual knowledge of a claim against CRH until January 20, 2022.
Issue
The issue on this motion was whether the plaintiff had a reasonable explanation on proper evidence as to why the claim against CRH could not have been discovered through the exercise of reasonable diligence prior to January 20, 2022, or prior to two years before bringing the motion.
Decision
Associate Justice B. McAfee relied on the case of Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 when deciding this motion. Specifically, where it was indicated that a plaintiff’s failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time. Instead, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under section 5(1)(b) of the Act. Where the issue on the motion to add a defendant is due diligence, the motion judge will not be in a position to dismiss the plaintiff’s motion in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgement.
Associate Justice B. McAfee highlighted that the evidentiary threshold on this type of motion is low and that the plaintiff’s explanation should be given a generous contextual reading.
CRH provided no evidence of reasonable steps that the plaintiff could have taken to ascertain a claim against CRH earlier and by when the plaintiff could have obtained such information. Associate Justice B. McAfee determined that there was no evidence of any earlier “trigger” that would have caused the plaintiff to make enquires of the involvement of other possible parties. Pursuant to the low evidentiary threshold and giving a generous contextual reading to the evidence, Associate Justice B. McAfee was satisfied of the reasonable explanation of the plaintiff for lack of efforts.
Conclusion
Associate Justice B. McAfee held that the plaintiff was granted leave to amend the statement of claim and add CRH as a defendant, that the plaintiff serve the amended statement of claim within 60 days, that CRH was at liberty to plead a limitation period defence at trial and that the costs of the motion were fixed on a partial indemnity basis in the all-inclusive amount of $5,000 payable by CRH to the plaintiff.
