The Court of Appeal recently commented on limitation periods in claims for contribution and indemnify, clarifying that s. 18 of the Limitations Act imposes a two year limitation regardless if the claim is based in contract or tort.
In Canaccord Capital Corp. v. Roscoe, [2013] ONCA 378 (C.A.), the defendant was an investment advisor employed by the plaintiff, an investment dealer. The employment agreement provided that the defendant would indemnify the company for any claim arising out of his acts or omissions in the course of his employment. In 2008, two clients sued Canaccord and Roscoe for losses they sustained in an investment for which Roscoe was their advisor. Canaccord filed a joint defence and did not crossclaim against Roscoe for indemnity. The claim was settled in 2009 without Roscoe's involvement. Canaccord issued a claim for indemnity in 2011, more than three years after the initial claim. Roscoe brought a summary judgment motion on the basis that the limitation period had expired. The motions judge held that that s. 18 of the Limitations Act does not apply to indemnity claims arising out of contract. She held that the claim was not one for contribution and indemnity, but rather one of a breach of the employment contract. She held the limitation began to run from the settlement date.
Roscoe appealed and the Court of Appeal allowed the appeal. Section 18 refers to "wrongdoers", not just "tortfeasors" and so is broad enough to include claims arising out of contract. The limitation began to run when Canaccord was served with the claim, and accordingly, the action was out of time.
Tampilkan postingan dengan label Limitation Periods. Tampilkan semua postingan
Tampilkan postingan dengan label Limitation Periods. Tampilkan semua postingan
Rabu, 26 Juni 2013
Rabu, 15 Mei 2013
Limitation Periods in Duty to Defend or Indemnify Cases
When does the limitation period begin to run in duty to defend or duty to indemnify cases?
In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs. Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor. Georgian was added as an additional insured to the contractor's policy. The underlying claim was ultimately settled on the basis of the contractor's admission of liability.
One of the issues was when the limitation period began to run. Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.
Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement." Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.
Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.
In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs. Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor. Georgian was added as an additional insured to the contractor's policy. The underlying claim was ultimately settled on the basis of the contractor's admission of liability.
One of the issues was when the limitation period began to run. Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.
Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement." Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.
Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.
Rabu, 10 Oktober 2012
Motion to Add Municipal Defendant Dismissed
A motion to add a municipality as a defendant was recently dismissed.
In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment. The notes were ultimately received in 2010 when a follow up request was made. They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.
Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.
This decision is a good example of the maxim that limitation periods are not enacted to be ignored. The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.
In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment. The notes were ultimately received in 2010 when a follow up request was made. They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.
Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.
This decision is a good example of the maxim that limitation periods are not enacted to be ignored. The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.
Rabu, 03 Oktober 2012
Election of Arbitration or Court Proceeding
Gordyukova v. Certas Direct Insurance Company, 2012 ONCA 563 (C.A.)
The subject of this appeal is s. 281.1(1) of the Insurance Act, which provides that an insured shall commence a court proceeding or arbitration within two years of the insurer's refusal to pay benefits.
The plaintiff was in a motor vehicle accident in 2001. She applied for accident benefits and a dispute arose over certain medical benefits. After mediation failed, she issued a Statement of Claim in 2002. In 2005, the insurer advised her she had exhausted her non-catastrophic limits for medical and rehabilitation benefits. Her application for a catastrophic designation was rejected so she commenced an arbitration at FSCO in 2008. Certas brought a motion to stay the arbitration on the grounds that the CAT dispute should be added to the court action. The arbitrator ruled the plaintiff could not proceed with both the court action and the arbitration, but could proceed with arbitration if she discontinued the court action. The arbitrator ruled he was not ruling on the limitation issue. The plaintiff gave notice of her intention to discontinue the court action and proceed with arbitration, and the insurer brought a motion seeking a ruling on the limitation issue. The arbitrator ruled the plaintiff could add all of the matters pending before the Superior Court to the arbitration.
Certas appealed, arguing that the plaintiff could not re-elect the method of proceeding eight years after the court action was commenced. The matter was appealed to the Director 's Delegate then the Divisional Court.
The Court of Appeal held that the arbitration should be stayed. Section 281.1(1) of the Insurance Act requires an election between a court action and an arbitration. It provides that a proceeding shall be brought within two years. The insured has the choice of forum, but cannot switch forums after the expiry of the limitation period. Since the court proceeding included a claim for "continued accident benefits", it would necessarily include a determination of the CAT issue.
The subject of this appeal is s. 281.1(1) of the Insurance Act, which provides that an insured shall commence a court proceeding or arbitration within two years of the insurer's refusal to pay benefits.
The plaintiff was in a motor vehicle accident in 2001. She applied for accident benefits and a dispute arose over certain medical benefits. After mediation failed, she issued a Statement of Claim in 2002. In 2005, the insurer advised her she had exhausted her non-catastrophic limits for medical and rehabilitation benefits. Her application for a catastrophic designation was rejected so she commenced an arbitration at FSCO in 2008. Certas brought a motion to stay the arbitration on the grounds that the CAT dispute should be added to the court action. The arbitrator ruled the plaintiff could not proceed with both the court action and the arbitration, but could proceed with arbitration if she discontinued the court action. The arbitrator ruled he was not ruling on the limitation issue. The plaintiff gave notice of her intention to discontinue the court action and proceed with arbitration, and the insurer brought a motion seeking a ruling on the limitation issue. The arbitrator ruled the plaintiff could add all of the matters pending before the Superior Court to the arbitration.
Certas appealed, arguing that the plaintiff could not re-elect the method of proceeding eight years after the court action was commenced. The matter was appealed to the Director 's Delegate then the Divisional Court.
The Court of Appeal held that the arbitration should be stayed. Section 281.1(1) of the Insurance Act requires an election between a court action and an arbitration. It provides that a proceeding shall be brought within two years. The insured has the choice of forum, but cannot switch forums after the expiry of the limitation period. Since the court proceeding included a claim for "continued accident benefits", it would necessarily include a determination of the CAT issue.
Rabu, 25 Juli 2012
Limitation Periods in Actions Under the OPCF
Roque v. Pilot Insurance Company, 2012 ONCA 311 (C.A.)
The plaintiff was injured in an automobile accident in 1996. He commenced an action against the defendant driver in 1998 for $1.75 million. He commenced an action against his own insurer in 2002. Section 17 of the OPCF provides an.action against one's own insurer under the underinsured provisions of the policy must be commenced within one year from when the claimant knew or ought to have known the quantum of claims exceeds the defendant's motor vehicle liability limits. The plaintiff argued the limitation did not begin to run until his damages were quantified by settlement or judgment. This interpretation had previously been accepted in Hampton v. Traders General Insurance Company (1996), 27 O.R. (3d) 285 (Gen. Div). On the insurer's motion for summary judgment, the motion judge dismissed the action. The Court of Appeal dismissed the appeal, overruling Hampton. Justice Juriansz preferred the reasoning of Master Dash in McCook v. Subramaniam (2008), 172 A.C.W.S. (3d) 344 (S.C.) at para. 5:
Roque had a DAC, medical reports and an economic loss report going back to 1998 and more than two years passed after he knew or ought to have known his claims exceeded $200,000. As a result, the action was statute barred.
The Court did not accept the plaintiff`s submission that applying s. 17 would amount to a multiplicity of proceedings, since s. 258.4 of the Insurance Act requires an insurer to advise of the defendant`s policy limits. Where an insurer fails to comply, the Court stated it would be prudent for a plaintiff to commence an action against its own insurer.
This decision should help to provide greater certainty with respect to the timing for claims under the underinsured provisions of the motor vehicle policy.
The plaintiff was injured in an automobile accident in 1996. He commenced an action against the defendant driver in 1998 for $1.75 million. He commenced an action against his own insurer in 2002. Section 17 of the OPCF provides an.action against one's own insurer under the underinsured provisions of the policy must be commenced within one year from when the claimant knew or ought to have known the quantum of claims exceeds the defendant's motor vehicle liability limits. The plaintiff argued the limitation did not begin to run until his damages were quantified by settlement or judgment. This interpretation had previously been accepted in Hampton v. Traders General Insurance Company (1996), 27 O.R. (3d) 285 (Gen. Div). On the insurer's motion for summary judgment, the motion judge dismissed the action. The Court of Appeal dismissed the appeal, overruling Hampton. Justice Juriansz preferred the reasoning of Master Dash in McCook v. Subramaniam (2008), 172 A.C.W.S. (3d) 344 (S.C.) at para. 5:
The plaintiff’s case runs from when he has a body of evidence accumulated that would give him a “reasonable chance” of persuading a judge that his claims would exceed $200,000.
Roque had a DAC, medical reports and an economic loss report going back to 1998 and more than two years passed after he knew or ought to have known his claims exceeded $200,000. As a result, the action was statute barred.
The Court did not accept the plaintiff`s submission that applying s. 17 would amount to a multiplicity of proceedings, since s. 258.4 of the Insurance Act requires an insurer to advise of the defendant`s policy limits. Where an insurer fails to comply, the Court stated it would be prudent for a plaintiff to commence an action against its own insurer.
This decision should help to provide greater certainty with respect to the timing for claims under the underinsured provisions of the motor vehicle policy.
Rabu, 25 April 2012
Actions by Insured against Insurer – Limitation Period not always Certain
Shaver v. Co-operators General Insurance Co. [2011] AJ No. 1411
Mr. Shaver was injured in a three vehicle accident on July 14, 2000 with one other identified driver. The Motor Vehicle Accident Claims Fund accepted liability for the accident and consented to a partial judgement in Mr. Shaver’s favour for $100,000.00. This judgement was entered on January 19, 2010.
Mr. Shaver found this compensation to be inadequate and issued a claim against his insurer, the Co-operators, on July 29, 2010 based on the SEF 44 endorsement in his policy:
Every action...against the insurer...under this endorsement shall be commenced [within 2 years] from the date upon which the eligible claimant...knew or ought to have known that the quantum of the claims with respect to an insured person exceed the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred.
The Co-operators brought a summary judgment motion in Alberta arguing that Mr. Shaver was out of time as more than 10 years had passed since the claim arose. Mr. Shaver argued that his claim against the Co-operators arose only on January 19, 2010.
The court held that the limitation period in this endorsement allowed an injured person to sue later than the ultimate 10 year statutory limitation period in cases where the insured learned of inadequate insurance or of total claims exceeding the insurance limits after the expiry of that limitation period. The Co-operators appealed this decision to the Alberta Court of Appeal.
The Alberta Court of Appeal upheld the lower court’s decision, citing the principle provided by the Alberta Court of Appeal in Wawanesa Mutual Insurance Co., [1994] AJ No. 126:
An insured’s claim against his own insurer arises not at the time of the accident, but when he knows, or should have known, that the tortfeasor’s coverage will be inadequate to cover the insured’s damages.
In the case at hand, both parties agreed that it was not until January 19, 2010 that Mr. Shaver knew that the torfeasor’s coverage would not be sufficient.
- Kristen Dearlove, Student-at-Law
Mr. Shaver was injured in a three vehicle accident on July 14, 2000 with one other identified driver. The Motor Vehicle Accident Claims Fund accepted liability for the accident and consented to a partial judgement in Mr. Shaver’s favour for $100,000.00. This judgement was entered on January 19, 2010.
Mr. Shaver found this compensation to be inadequate and issued a claim against his insurer, the Co-operators, on July 29, 2010 based on the SEF 44 endorsement in his policy:
Every action...against the insurer...under this endorsement shall be commenced [within 2 years] from the date upon which the eligible claimant...knew or ought to have known that the quantum of the claims with respect to an insured person exceed the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred.
The Co-operators brought a summary judgment motion in Alberta arguing that Mr. Shaver was out of time as more than 10 years had passed since the claim arose. Mr. Shaver argued that his claim against the Co-operators arose only on January 19, 2010.
The court held that the limitation period in this endorsement allowed an injured person to sue later than the ultimate 10 year statutory limitation period in cases where the insured learned of inadequate insurance or of total claims exceeding the insurance limits after the expiry of that limitation period. The Co-operators appealed this decision to the Alberta Court of Appeal.
The Alberta Court of Appeal upheld the lower court’s decision, citing the principle provided by the Alberta Court of Appeal in Wawanesa Mutual Insurance Co., [1994] AJ No. 126:
An insured’s claim against his own insurer arises not at the time of the accident, but when he knows, or should have known, that the tortfeasor’s coverage will be inadequate to cover the insured’s damages.
In the case at hand, both parties agreed that it was not until January 19, 2010 that Mr. Shaver knew that the torfeasor’s coverage would not be sufficient.
- Kristen Dearlove, Student-at-Law
Rabu, 25 Januari 2012
Advancing a claim for Contribution and Indemnity as Equitable Set-off
Goma v. Raghunanan [2011] O.J. No. 4916
Motion to amend Statement of Defence
This was a very clever motion by defendant’s counsel to add a claim for contribution and indemnity where the limitation period to start a counterclaim had passed.
This case involves a motor vehicle accident where there were two injured plaintiffs, the driver and a passenger. The defendants pleaded contributory negligence against the driver but neglected to counterclaim for contribution and indemnity against the passenger for her injuries.
When they realized the oversight, the plaintiff’s refused to consent to adding a counterclaim; the limitation period to counterclaim had passed.
The defendants decided to bring a motion to amend the statement of defence to add a claim for equitable set-off against the plaintiff. They assert that the s.18(1) Limitations Act limitation period does not apply.
Master Dash was bound by the decisive statements of a superior court, which held that claims for equitable set-off are not subject to limitation periods. See Canada Trustco Mortgage Co. v. Pierce Estate, [2005] O.J. No. 1886, 197 O.A.C. (C.A.) and Spiral Aviation Training Co. v. Attorney General of Canada, 2010 ONSC 2581.
However, after examining the test for equitable set-off and the case law presented by counsel, Master Dash held that the defendant’s could not meet the test. Specifically, the claim for contribution does not go to the root of the plaintiff’s claim for damages.
He concluded that a defendant cannot claim contribution and indemnity against one plaintiff for damages awarded to another plaintiff by pleading equitable set-off in the statement of defence; this must be done by counterclaim, and the defendants were out of time to advance a counterclaim.
Rule 26.01 allows for amendments that are “legally tenable”. Amendments must be granted “unless the claim is clearly impossible of success”. Master Dash determined that because the claim for equitable set-off cannot succeed, the motion must be denied.
- Alison McBurney
Motion to amend Statement of Defence
This was a very clever motion by defendant’s counsel to add a claim for contribution and indemnity where the limitation period to start a counterclaim had passed.
This case involves a motor vehicle accident where there were two injured plaintiffs, the driver and a passenger. The defendants pleaded contributory negligence against the driver but neglected to counterclaim for contribution and indemnity against the passenger for her injuries.
When they realized the oversight, the plaintiff’s refused to consent to adding a counterclaim; the limitation period to counterclaim had passed.
The defendants decided to bring a motion to amend the statement of defence to add a claim for equitable set-off against the plaintiff. They assert that the s.18(1) Limitations Act limitation period does not apply.
Master Dash was bound by the decisive statements of a superior court, which held that claims for equitable set-off are not subject to limitation periods. See Canada Trustco Mortgage Co. v. Pierce Estate, [2005] O.J. No. 1886, 197 O.A.C. (C.A.) and Spiral Aviation Training Co. v. Attorney General of Canada, 2010 ONSC 2581.
However, after examining the test for equitable set-off and the case law presented by counsel, Master Dash held that the defendant’s could not meet the test. Specifically, the claim for contribution does not go to the root of the plaintiff’s claim for damages.
He concluded that a defendant cannot claim contribution and indemnity against one plaintiff for damages awarded to another plaintiff by pleading equitable set-off in the statement of defence; this must be done by counterclaim, and the defendants were out of time to advance a counterclaim.
Rule 26.01 allows for amendments that are “legally tenable”. Amendments must be granted “unless the claim is clearly impossible of success”. Master Dash determined that because the claim for equitable set-off cannot succeed, the motion must be denied.
- Alison McBurney
Rabu, 18 Januari 2012
Limitation Period Expired – Discoverability Principle Not Applicable
In Muirhead v. Coulas [2011] OJ No. 4908 (S.C.J.), the defendants moved for summary judgment dismissing the action as statute barred. The action arose from a slip and fall in July 2005 and a claim was not commenced until July 2010.
The plaintiffs took the position that the limitation period did not begin to run until June or November 2009 when two medical opinions were received following another slip and fall in February 2006 when the plaintiff injured her same knee. They claimed that it was not until they received these reports that they discovered the 2005 injuries were ongoing and permanent.
The defendants took the position that there was no issue with respect to discoverability as the plaintiff knew she hurt her knee and she underwent surgery on her knee three days later and was unable to work for several months following.
Justice Mackinnon held that the defendants met their initial burden as they had led evidence that the plaintiff knew of her injury, it was serious enough to require surgery, she could not walk for two months after, she still had pain and restriction in movement six months later and had not been able to return to work by then. Justice Mackinnon also relied on section 5(2) of the Limitations Act , 2002 which sets out a presumption that a plaintiff has the requisite knowledge as of the day the act took place, “unless the contrary is proved”.
Addressing the plaintiffs’ submission that a proceeding would not have been an appropriate means to remedy the injury sustained as the plaintiff believed her injuries were resolving and would not be permanent, Justice Mackinnon stated that section 5(1)(a)(iv) “does not amount to a bar to an action for recovery in tort” and held that the cause of action was complete, even if the complete extent of damages was not fully known.
Justice Mackinnon agreed with the plaintiffs’ submission that an individual should not be required to commence an action where there is no reasonable prospect of recovery, but found there to be no such facts in the case at hand.
In response to the plaintiffs’ submission that the true nature of the loss from the 2005 slip and fall was not knowable until after the second incident, Justice Mackinnon held that the plaintiff clearly had a claim arising from the first incident and “the facts learned subsequently that the injury was permanent and contributed to her current severe condition may have been a basis to increase the quantum of damages sought but is not a new or different claim”.
Lastly, the plaintiffs attempted to rely on cases that extended the running of the limitation period because a medical opinion was required in order to know whether a cause of action existed. Justice Mackinnon pointed out that in all of these cases, the court had referred to the requirement that the plaintiff acted with due diligence in acquiring facts in order to be fully apprised of all material facts upon which a negligence claim can be based, including being diligent in requesting and receiving a medical opinion, if required. The plaintiffs in this case did not provide evidence as to why they did not seek out the medical reports sooner that were ultimately obtained in 2009. Also, there was evidence to suggest that there was an operative report available in March of 2007 that the plaintiffs did not request until later.
It was held that there was no genuine issue requiring a trial.
- Kristen Dearlove, Student-at-Law
The plaintiffs took the position that the limitation period did not begin to run until June or November 2009 when two medical opinions were received following another slip and fall in February 2006 when the plaintiff injured her same knee. They claimed that it was not until they received these reports that they discovered the 2005 injuries were ongoing and permanent.
The defendants took the position that there was no issue with respect to discoverability as the plaintiff knew she hurt her knee and she underwent surgery on her knee three days later and was unable to work for several months following.
Justice Mackinnon held that the defendants met their initial burden as they had led evidence that the plaintiff knew of her injury, it was serious enough to require surgery, she could not walk for two months after, she still had pain and restriction in movement six months later and had not been able to return to work by then. Justice Mackinnon also relied on section 5(2) of the Limitations Act , 2002 which sets out a presumption that a plaintiff has the requisite knowledge as of the day the act took place, “unless the contrary is proved”.
Addressing the plaintiffs’ submission that a proceeding would not have been an appropriate means to remedy the injury sustained as the plaintiff believed her injuries were resolving and would not be permanent, Justice Mackinnon stated that section 5(1)(a)(iv) “does not amount to a bar to an action for recovery in tort” and held that the cause of action was complete, even if the complete extent of damages was not fully known.
Justice Mackinnon agreed with the plaintiffs’ submission that an individual should not be required to commence an action where there is no reasonable prospect of recovery, but found there to be no such facts in the case at hand.
In response to the plaintiffs’ submission that the true nature of the loss from the 2005 slip and fall was not knowable until after the second incident, Justice Mackinnon held that the plaintiff clearly had a claim arising from the first incident and “the facts learned subsequently that the injury was permanent and contributed to her current severe condition may have been a basis to increase the quantum of damages sought but is not a new or different claim”.
Lastly, the plaintiffs attempted to rely on cases that extended the running of the limitation period because a medical opinion was required in order to know whether a cause of action existed. Justice Mackinnon pointed out that in all of these cases, the court had referred to the requirement that the plaintiff acted with due diligence in acquiring facts in order to be fully apprised of all material facts upon which a negligence claim can be based, including being diligent in requesting and receiving a medical opinion, if required. The plaintiffs in this case did not provide evidence as to why they did not seek out the medical reports sooner that were ultimately obtained in 2009. Also, there was evidence to suggest that there was an operative report available in March of 2007 that the plaintiffs did not request until later.
It was held that there was no genuine issue requiring a trial.
- Kristen Dearlove, Student-at-Law
Rabu, 09 November 2011
Sheikh v. Pinheiro 2011 ONSC 6143
We thank M. Edward Key of O’Donnell, Robertson & Sanfilippo for this contribution to our blog.
The plaintiff was going westbound in her vehicle and the defendant taxi driver was travelling northbound in his taxi. They collided at an intersection. The defendant taxi then went on to collide with a southbound vehicle. That southbound vehicle did not collide with the plaintiff’s vehicle.
None of the drivers appeared to be hurt. They all went to the same Collision Reporting Center and filled out very detailed collision reports. There was no question who was driving what vehicle.
On the second anniversary of the collision, the plaintiff brought an action against the driver of the southbound vehicle, believing that he was the taxi driver. Essentially, the plaintiff got the other two drivers confused.
Two years after that (i.e. four years after the collision), the plaintiff commenced a separate action against the real taxi driver after realizing the mistake.
The taxi driver brought a motion for summary judgment on the basis that the action was limitation barred.
The plaintiff argued that there was a genuine issue regarding when the plaintiff knew or ought to have known the true identity of the driver that hit her vehicle. The motion judge made short work of that argument. In particular, for strategic reasons, the plaintiff did not swear an affidavit regarding the state of her personal knowledge of the issues, and the motion materials only included affidavits from their lawyers. The judge determined that the information was readily available in the form of the Self Collision Reports.
Alternatively, the plaintiff argued that there was a genuine issue for trial on the basis that she could not "discover" that her injuries were likely to satisfy the Insurance Act threshold until 2 years before she started the second action.
The motions judge rejected the plaintiff's argument. The trial judge considered that the medical evidence was clear that it was "reasonably discoverable" that the plaintiff's injuries met the threshold more than two years before the second action was commenced.
The motion judge looked not only at medical reports, but also relied on the fact that the first Statement of Claim (issued exactly 2 years after the accident) alleged that she sustained "serious and permanent injuries." The motion judge stated at paragraph 47 of his reasons that, "While this action was mistakenly directed against the wrong defendant, this assertion by the plaintiff in the Statement of Claim is akin to an admission that, by at least that time, if not earlier, the plaintiff viewed her injuries from the accident as serious and permanent, and that they had thereby discovered their potential cause of action."
The plaintiff was going westbound in her vehicle and the defendant taxi driver was travelling northbound in his taxi. They collided at an intersection. The defendant taxi then went on to collide with a southbound vehicle. That southbound vehicle did not collide with the plaintiff’s vehicle.
None of the drivers appeared to be hurt. They all went to the same Collision Reporting Center and filled out very detailed collision reports. There was no question who was driving what vehicle.
On the second anniversary of the collision, the plaintiff brought an action against the driver of the southbound vehicle, believing that he was the taxi driver. Essentially, the plaintiff got the other two drivers confused.
Two years after that (i.e. four years after the collision), the plaintiff commenced a separate action against the real taxi driver after realizing the mistake.
The taxi driver brought a motion for summary judgment on the basis that the action was limitation barred.
The plaintiff argued that there was a genuine issue regarding when the plaintiff knew or ought to have known the true identity of the driver that hit her vehicle. The motion judge made short work of that argument. In particular, for strategic reasons, the plaintiff did not swear an affidavit regarding the state of her personal knowledge of the issues, and the motion materials only included affidavits from their lawyers. The judge determined that the information was readily available in the form of the Self Collision Reports.
Alternatively, the plaintiff argued that there was a genuine issue for trial on the basis that she could not "discover" that her injuries were likely to satisfy the Insurance Act threshold until 2 years before she started the second action.
The motions judge rejected the plaintiff's argument. The trial judge considered that the medical evidence was clear that it was "reasonably discoverable" that the plaintiff's injuries met the threshold more than two years before the second action was commenced.
The motion judge looked not only at medical reports, but also relied on the fact that the first Statement of Claim (issued exactly 2 years after the accident) alleged that she sustained "serious and permanent injuries." The motion judge stated at paragraph 47 of his reasons that, "While this action was mistakenly directed against the wrong defendant, this assertion by the plaintiff in the Statement of Claim is akin to an admission that, by at least that time, if not earlier, the plaintiff viewed her injuries from the accident as serious and permanent, and that they had thereby discovered their potential cause of action."
Rabu, 10 Agustus 2011
Discoverability - Identity of Vehicle Owner
After determining vehicle ownership, is counsel required to continue looking for contrary information?
Velasco v. North York Chevrolet Oldsmobile Ltd., [2011] ONCA 522 (C.A.), involves a car accident that occurred in 2005. The appellant’s vehicle was struck by two other vehicles. The ownership of the one vehicle (the “Denyer vehicle”) is the subject of this appeal.
The appellant issued a statement of claim in 2006. Counsel relied on a statement in the police report to determine that Denyer was the owner of the Denyer vehicle. This belief was confirmed later that year by way of the pleadings delivered by Denyer’s insurer stating that Denyer was the owner of the vehicle.
Early in 2007, counsel for the appellant received a 732 page Crown Brief that contained a license plate search which showed that Denyer was not in fact the owner of the vehicle. This search did not come to the attention of counsel until two years later when preparing for discoveries. At that time, a statement of claim was issued against the respondents on the basis of their ownership.
The respondents brought a motion to dismiss the claim against them on the basis that the limitation period had expired. The motion judge held that counsel for the appellant should not have closed their minds to the ownership issue and should have reviewed the Crown Brief promptly to settle that issue.
The Court of Appeal disagreed with the motion judge and held that counsel had acted with reasonable diligence in continuing to rely on the initial information they had received “until contrary information actually came to their attention”. The court did not find a duty on counsel to positively search for contradictory information after they were satisfied as to the ownership.
Thanks to our articling student, Kristen Dearlove, for this post.
Velasco v. North York Chevrolet Oldsmobile Ltd., [2011] ONCA 522 (C.A.), involves a car accident that occurred in 2005. The appellant’s vehicle was struck by two other vehicles. The ownership of the one vehicle (the “Denyer vehicle”) is the subject of this appeal.
The appellant issued a statement of claim in 2006. Counsel relied on a statement in the police report to determine that Denyer was the owner of the Denyer vehicle. This belief was confirmed later that year by way of the pleadings delivered by Denyer’s insurer stating that Denyer was the owner of the vehicle.
Early in 2007, counsel for the appellant received a 732 page Crown Brief that contained a license plate search which showed that Denyer was not in fact the owner of the vehicle. This search did not come to the attention of counsel until two years later when preparing for discoveries. At that time, a statement of claim was issued against the respondents on the basis of their ownership.
The respondents brought a motion to dismiss the claim against them on the basis that the limitation period had expired. The motion judge held that counsel for the appellant should not have closed their minds to the ownership issue and should have reviewed the Crown Brief promptly to settle that issue.
The Court of Appeal disagreed with the motion judge and held that counsel had acted with reasonable diligence in continuing to rely on the initial information they had received “until contrary information actually came to their attention”. The court did not find a duty on counsel to positively search for contradictory information after they were satisfied as to the ownership.
Thanks to our articling student, Kristen Dearlove, for this post.
Senin, 06 Juni 2011
Special Circumstances Doctrine
This is a case which comments on the Special Circumstances doctrine which we have been reviewing recently in our last two blog entries. This case was brought to our attention by Dana Paladino, legal counsel at the City of Windsor. Thanks Dana!
Wood Waste Solutions Canada Inc. v. Associated Paving Company, 2010 ONSC 6280 (CanLII). The court indicates that the special circumstances doctrine is potentially available where an old limitation period applies.
It is surprising that this wouldn’t have been mentioned in Chadowski.
Sabtu, 04 Juni 2011
This is further to our May 25th blog of last week on the Special Circumstances Doctrine.
Thanks to Edward Key of O'Donnell, Roberston & Sanfilippo, Toronto, for this comment:
My understanding is that “special circumstances” is still alive for causes of action that pre-date January 1, 2004.
For example, in Parent v. Janandee Management Inc. (2009) 82 C.P.C. (6th) 321 (Ont. Master), Master Short wrote:
[29] For cases dealing with events occurring after January 1, 2004, the Ontario
Court of Appeal has held in Joseph v. Paramount Canada's Wonderland (2008),
90 O.R. (3d) 401 (Ont. C.A.) (at paragraphs 27 and 28) that the equitable concept
of special circumstances permitting an extension of time for suit, no longer
applies in Ontario. As this case is based upon an occurrence that took place prior
to January 1, 2004, the Court of Appeal's decision in Meady v. Greyhound
Canada Transportation Corp., 2008 ONCA 468 (Ont. C.A.) does hold that the
doctrine of special circumstances may be available to the plaintiffs in this in
seeking the addition of a party to litigation after the expiry of the limitation
period.
Rabu, 25 Mei 2011
Revival of the Special Circumstances Doctrine?
Has the special circumstances doctrine been revived for limitation periods? We thought the Courts have been clear that under the new statute of limitations there is no exception for special circumstances. However, Wood J. recently held that special circumstances applied and granted an extension of time. In the case the plaintiff was trying to add defendants who were already third and fourth parties. Perhaps the exception will apply then only to when third and fourth parties are being added as defendants?
The case of Chodowski v. Huntsville Professional Building Inc., [2010] O.J. No. 3773, looks at the issue of joining parties after limitation periods have expired. In Chodowski, the motion is the result of plaintiff’s counsel, who had brought a timely motion seeking leave to join the third and fourth parties as defendants. It was not until the newly retained plaintiff’s counsel set the matter down for trial, that the omission was realized.
Justice T.M. Wood held that the test to be applied is a two part one in which the moving party must first satisfy the court that “no prejudice would result that cannot be compensated for by costs or an adjournment”. The second part, having been developed through the case law, requires that where a limitation period has expired, the moving party must demonstrate “special circumstances” which would justify extending the limitation period.
Justice Wood wrote that:
[I]t must be remembered that both defendants have been aware of their exposure since the day after the incident. Both were aware of the order allowing them to be joined as defendants in the main action, and both participated fully in discoveries as third and fourth parties.
The Judge found that plaintiff’s counsel’s prompt move for leave to amend, and the fact that plaintiff’s first counsel was a generalist “whose practice was not attuned to the requirements of tort litigation”, lends credibility to the argument that this was a sin of omission rather than commission.
The Court found that the failure to join the defendants in a timely fashion was fully explained.
Wood J. held that: The conduct of the proceedings as a whole and the nature of the mistake in that context are in my view special circumstances sufficient when coupled with the lack of real prejudice to the defendants, to justify an extension of time to issue and serve a new statement of claim on the defendant number company and Mid-North to March 1, 2010, the date of service.
Thanks to Alex Lacko for reviewing this case.
The case of Chodowski v. Huntsville Professional Building Inc., [2010] O.J. No. 3773, looks at the issue of joining parties after limitation periods have expired. In Chodowski, the motion is the result of plaintiff’s counsel, who had brought a timely motion seeking leave to join the third and fourth parties as defendants. It was not until the newly retained plaintiff’s counsel set the matter down for trial, that the omission was realized.
Justice T.M. Wood held that the test to be applied is a two part one in which the moving party must first satisfy the court that “no prejudice would result that cannot be compensated for by costs or an adjournment”. The second part, having been developed through the case law, requires that where a limitation period has expired, the moving party must demonstrate “special circumstances” which would justify extending the limitation period.
Justice Wood wrote that:
[I]t must be remembered that both defendants have been aware of their exposure since the day after the incident. Both were aware of the order allowing them to be joined as defendants in the main action, and both participated fully in discoveries as third and fourth parties.
The Judge found that plaintiff’s counsel’s prompt move for leave to amend, and the fact that plaintiff’s first counsel was a generalist “whose practice was not attuned to the requirements of tort litigation”, lends credibility to the argument that this was a sin of omission rather than commission.
The Court found that the failure to join the defendants in a timely fashion was fully explained.
Wood J. held that: The conduct of the proceedings as a whole and the nature of the mistake in that context are in my view special circumstances sufficient when coupled with the lack of real prejudice to the defendants, to justify an extension of time to issue and serve a new statement of claim on the defendant number company and Mid-North to March 1, 2010, the date of service.
Thanks to Alex Lacko for reviewing this case.
Rabu, 13 April 2011
Motion to add defendants after limitation period dismissed
Higgins v. Barrie (City of), 2011 O.N.S.C. 2233 (S.C.J.)
This was a motion by the plaintiff to amend the Statement of Claim to add additional defendants after the expiry of the limitation period on the basis of discoverability.
The plaintiff slipped and fell on March 13, 2006 and alleged that the City of Barrie was negligent in failing to maintain the site of the slip and fall. Barrie’s defence was filed May 13, 2008. Examinations for Discovery took place August 5, 2010 and September 13, 2010. At the examination for discovery of the City representative, counsel advised that the proposed defendant had been contracted by the City to remove snow from the area where the plaintiff fell. The contractor had in turn subcontracted to the second proposed defendant. On November 25, 2010, Barrie’s counsel advised of the name of the subcontractor. Plaintiff’s counsel performed a corporate search on November 30, 2010 and brought a motion to add the proposed defendants December 14, 2010.
Justice DiTomaso dismissed the plaintiff’s motion. The court noted that the passing of the limitation period gives rise to a presumption of prejudice. There is a reverse onus and evidentiary burden on the plaintiff. In the circumstances, the plaintiff’s motion materials failed to disclose any evidence of pre-discovery diligence on the part of the plaintiff or his counsel to determine the identity of the proposed defendants. The motion materials failed to disclose any evidence of any reason why the plaintiff could not have taken any steps to discover the identity of the proposed defendants prior to the examination for discovery. Justice DiTomaso held that waiting 4 ½ years until the examination for discovery of a City representative to make inquiries about potential additional defendants did not amount to due diligent or reasonable efforts. The affidavit of the plaintiff’s legal assistant was totally deficient in providing evidence of due diligence or reasonable efforts made to ascertain the involvement of the proposed defendants or any other defendants. The plaintiff therefore had not met his onus and the motion was dismissed.
Justice DiTomaso’s decision is extremely useful for proposed defendants responding to a plaintiff’s motion to amend. There is a very helpful summary of the case law with respect to adding defendants and the due diligence requirement.
Thank you to Ted Key for bringing this case to our attention.
This was a motion by the plaintiff to amend the Statement of Claim to add additional defendants after the expiry of the limitation period on the basis of discoverability.
The plaintiff slipped and fell on March 13, 2006 and alleged that the City of Barrie was negligent in failing to maintain the site of the slip and fall. Barrie’s defence was filed May 13, 2008. Examinations for Discovery took place August 5, 2010 and September 13, 2010. At the examination for discovery of the City representative, counsel advised that the proposed defendant had been contracted by the City to remove snow from the area where the plaintiff fell. The contractor had in turn subcontracted to the second proposed defendant. On November 25, 2010, Barrie’s counsel advised of the name of the subcontractor. Plaintiff’s counsel performed a corporate search on November 30, 2010 and brought a motion to add the proposed defendants December 14, 2010.
Justice DiTomaso dismissed the plaintiff’s motion. The court noted that the passing of the limitation period gives rise to a presumption of prejudice. There is a reverse onus and evidentiary burden on the plaintiff. In the circumstances, the plaintiff’s motion materials failed to disclose any evidence of pre-discovery diligence on the part of the plaintiff or his counsel to determine the identity of the proposed defendants. The motion materials failed to disclose any evidence of any reason why the plaintiff could not have taken any steps to discover the identity of the proposed defendants prior to the examination for discovery. Justice DiTomaso held that waiting 4 ½ years until the examination for discovery of a City representative to make inquiries about potential additional defendants did not amount to due diligent or reasonable efforts. The affidavit of the plaintiff’s legal assistant was totally deficient in providing evidence of due diligence or reasonable efforts made to ascertain the involvement of the proposed defendants or any other defendants. The plaintiff therefore had not met his onus and the motion was dismissed.
Justice DiTomaso’s decision is extremely useful for proposed defendants responding to a plaintiff’s motion to amend. There is a very helpful summary of the case law with respect to adding defendants and the due diligence requirement.
Thank you to Ted Key for bringing this case to our attention.
Rabu, 30 Maret 2011
Action dismissed due to failure to comply with Municipal Act notice provision
Zogjani v. Toronto (City), [2011] O.J. No. 1002 (S.C.J.)
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
Rabu, 23 Februari 2011
The discoverability principle in third party claims
White v. Mannen, 2011 ONSC 1058 (S.C.J.)
This was a motion by the third party, Brant County, for summary judgment on the basis that the action against it was commenced out of time.
The main action arose out of a motor vehicle accident that occurred on May 22, 2004. The plaintiff was a passenger in the defendant's vehicle, which crested a hill and swerved to avoid a parked car, leaving the roadway and striking a tree. In the third party claim, the defendant alleged the road and hill obstructed his view.
The claim was issued December 2, 2005 and served on the defendant February 21, 2006. The third party claim was issued September 24, 2009. The defendant argued that it was only after examinations for discovery and receipt of an engineering opinion that he discovered he had a cause of action against the municipality.
Justice Gordon conducted a useful review of the case law with respect to discoverability, and specifically the due diligence required: a party must only learn of sufficient facts upon which to commence a claim and need not be in a position to prove it. Legal advice or an expert opinion is not necessarily required, and an examination for discovery may not be required. In resisting a motion for summary judgment, the responding party must address the due diligence requirement and provide full disclosure.
Justice Gordon held that the defendant knew at the time of the accident that there was restricted visibility on the hill. The failure of the defendant to tender evidence on due diligence was fatal to his position. The third party claim was well out of time and was dismissed.
This decision is a good review of the principles pertaining to discoverability and should be reviewed both by those pursuing third party claims and those defending them.
This was a motion by the third party, Brant County, for summary judgment on the basis that the action against it was commenced out of time.
The main action arose out of a motor vehicle accident that occurred on May 22, 2004. The plaintiff was a passenger in the defendant's vehicle, which crested a hill and swerved to avoid a parked car, leaving the roadway and striking a tree. In the third party claim, the defendant alleged the road and hill obstructed his view.
The claim was issued December 2, 2005 and served on the defendant February 21, 2006. The third party claim was issued September 24, 2009. The defendant argued that it was only after examinations for discovery and receipt of an engineering opinion that he discovered he had a cause of action against the municipality.
Justice Gordon conducted a useful review of the case law with respect to discoverability, and specifically the due diligence required: a party must only learn of sufficient facts upon which to commence a claim and need not be in a position to prove it. Legal advice or an expert opinion is not necessarily required, and an examination for discovery may not be required. In resisting a motion for summary judgment, the responding party must address the due diligence requirement and provide full disclosure.
Justice Gordon held that the defendant knew at the time of the accident that there was restricted visibility on the hill. The failure of the defendant to tender evidence on due diligence was fatal to his position. The third party claim was well out of time and was dismissed.
This decision is a good review of the principles pertaining to discoverability and should be reviewed both by those pursuing third party claims and those defending them.
Sabtu, 27 Februari 2010
Ignorance of the Law can be a Reasonable Excuse
The Court of Appeal for Ontario has held that the failure to give statutory notice within 10 days to the municipality, arising out of a slip and fall on an icy municipal sidewalk, is not a bar to an action where the injured person waited four months to give notice because (i) he had a serious injury, (ii) he didn't know about the law requiring him to give notice and (iii) he was depressed. He did not give notice to the City until he was contacted by a lawyer four months after the slip and fall.
At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."
Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."
The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.
The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.
At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."
Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."
The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.
The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.
Selasa, 02 Februari 2010
New Summary Judgment Rule Results in Dismissal of Claim
Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
Sabtu, 20 Juni 2009
Limitation Periods
Grewal v. Ivany, 2008 ONCA 687.
This is an interesting decision of the Court of Appeal of Ontario from last year. It addresses the issue of discoverability and when a limitation period starts running.
In Ontario, claimants normally have two years to commence an action. This however is subject to discoverability.
The injured parties were involved in a motor vehicle accident and waited three and a half years to commence an action. The motion judge dismissed the plaintiff's action as out of time.
The Court of Appeal held that the plaintiff's lack of prognosis, along with a medical notation in the family doctor's notes that the plaintiff's pain is chronic, were not enough to start the limitation period running.
Further the Court of Appeal said that there wasn't enough evidence to conclude that the plaintiff would meet the threshold or not, so he couldn't know if he should commence a claim or not. This was despite the fact that the plaintiff had admitted during cross examination that he was uncertain if his neck pain would go away at a time more than two years before he commenced the action. In other words, he knew he had pain and he knew he might not get better.
It is interesting that the threshold seems to have protected the plaintiff from the statute of limitations.
This is an interesting decision of the Court of Appeal of Ontario from last year. It addresses the issue of discoverability and when a limitation period starts running.
In Ontario, claimants normally have two years to commence an action. This however is subject to discoverability.
The injured parties were involved in a motor vehicle accident and waited three and a half years to commence an action. The motion judge dismissed the plaintiff's action as out of time.
The Court of Appeal held that the plaintiff's lack of prognosis, along with a medical notation in the family doctor's notes that the plaintiff's pain is chronic, were not enough to start the limitation period running.
Further the Court of Appeal said that there wasn't enough evidence to conclude that the plaintiff would meet the threshold or not, so he couldn't know if he should commence a claim or not. This was despite the fact that the plaintiff had admitted during cross examination that he was uncertain if his neck pain would go away at a time more than two years before he commenced the action. In other words, he knew he had pain and he knew he might not get better.
It is interesting that the threshold seems to have protected the plaintiff from the statute of limitations.
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