



COURT OF APPEAL FOR ONTARIO

CITATION: Azzeh v. Legendre, 2017 ONCA 385

DATE: 20170512

DOCKET: C62433

Weiler, Benotto and Roberts JJ.A.

BETWEEN

Bayden
    Zachary Azzeh, (represented by his Litigation Guardian,

Ingrid
    Nancy Dion
)

Plaintiff (Respondent)

and

Roger Legendre and Susan Legendre

Defendants

and

Julia Neville

Third-Party

Stuart Zacharias and Nadia Marotta, for the appellant
    the City of Greater Sudbury

Gary Mazin, Supriya Sharma, Iman Ahsan and Herman Tse,
    for the respondent Bayden Zachary Azzeh

William G. Scott, for the proposed defendant, Wallbridge,
    Wallbridge

Heard: January 23, 2017

On appeal from the order of Justice Patricia C. Hennessy
    of the Superior Court of Justice, dated July 14, 2016, with reasons dated June
    16, 2016 and reported at 2016 ONSC 3937, 52 M.P.L.R. (5th) 173, and
    supplementary reasons dated July 14, 2016.

Weiler J.A.:

A.

Overview

[1]

Bayden Azzeh suffered brain injuries in a car accident in Sudbury on
    September 7, 2007. Bayden was 17 days old. His mother, Julia Neville, was
    driving the car. In 2014, Neville issued a statement of claim on Baydens
    behalf. The claim named the driver and the owner of the other vehicle involved
    in the accident as defendants.

[2]

In 2015, Baydens lawyers brought a motion to amend the pleadings to add
    the City of Sudbury, among others, as a defendant and to increase the amount of
    damages sought. The City unsuccessfully opposed the motion on two grounds:
    first, the claim against the City was statute-barred, as the two-year
    limitation period under the
Limitations Act, 2002
, S.O. 2002, c. 24,
    had elapsed; and second, the claim was barred because Bayden failed to give the
    City notice within ten days of the accident, as required under s. 44(10) of the
Municipal Act, 2001
, S.O. 2001, c. 25.

[3]

The City now appeals to this court.

[4]

For the reasons that follow, I would dismiss the Citys first ground of
    appeal and give effect to the second. Accordingly, I would allow the appeal,
    set aside the motion judges order, and order that the claim against the City be
    dismissed.

B.

background FACTS

[5]

Bayden and Neville were both injured in the car accident on September 7,
    2007. After the accident, Neville retained the firm of Wallbridge, Wallbridge
    to act on her and Baydens behalf. The contingency fee agreement is for both
    mother and son from the same accident.

[6]

Wallbridge issued a statement of claim on Nevilles behalf in April
    2008, and that claim was settled in August 2011. In October 2011, Neville made
    an application for statutory accident benefits for her son and signed the
    application as his guardian.

[7]

In June 2014, Wallbridge issued a statement of claim only against the
    driver and the owner of the other car, Roger Legendre and Susan Legendre, respectively.
    The claim was styled as follows:

Bayden Azzeh

(represented by his Litigation Guardian, JULIA NEVILLE)

[8]

Rule 7.02(2) in the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, addresses the procedure applicable when a person brings a claim on behalf
    of a plaintiff with a disability. Rule 7.02(2)

states:

No person except the Childrens Lawyer or the Public
    Guardian and Trustee shall act as litigation guardian for a plaintiff or
    applicant who is under a disability until the person has filed an affidavit in
    which the person,

.

(g) states that he or she has no interest in the
    proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of
    his or her liability to pay personally any costs awarded against him or her or
    against the person under disability.

[9]

Julia Neville did not swear the affidavit required to be sworn by a
    litigation guardian as required by r. 7.02(2).
[1]


[10]

On May 25, 2015, Bayden changed lawyers to Mazin and Associates. Ingrid Nancy
    Dion, Baydens grandmother, swore an affidavit as litigation guardian on May
    29, 2015. On May 31, 2015, seven years after the accident, she gave notice to
    the City of a potential claim against it. On October 30, 2015, a court order
    named Dion as Baydens litigation guardian. Bayden then moved to amend his
    statement of claim to increase the amount of damages sought and to add multiple
    defendants. He sought to add his previous counsel (individually and as a firm);
    his parents (Julia Neville, who was driving the car, and Ihab Azzeh, who owned
    it); and the City, which was responsible for the intersection where the
    accident had taken place. The City opposed the motion on the basis that the two-year
    limitation period and the ten-day period for giving notice to the City had
    expired.

C.

the motion judges decision

[11]

The motion judge held that there was no prejudice to the City caused by
    adding it as a party to the action, as Baydens claim was about road design
    issues, not maintenance or inspection. The City had destroyed its maintenance
    records, but not its road design records.

[12]

The motion judge rejected the Citys submission that the action against
    it was statute-barred. Under s. 6 of the
Limitations Act, 2002
, the
    limitation period does not begin to run on the claim of a minor until the minor
    is represented by a litigation guardian in relation to the claim. The motion
    judge found that Bayden was not represented by a litigation guardian until June
    11, 2014 at the earliest (when the statement of claim was issued on behalf of
    Bayden against the driver and the owner of the car), so that is when the two-year
    limitation period under the
Limitations Act, 2002
began to run. Bayden
    had filed his motion within this period, and the action against the City was
    therefore not statute-barred.

[13]

The City also argued that Baydens claim against it was barred by the
Municipal
    Act, 2001
.

Under s. 44(10), no action shall be brought against a
    municipality for failure to keep a highway in a reasonable state of repair
    unless notice is given to the municipality within ten days of the occurrence of
    the injury. Under s. 44(12), lack of notice is no bar if there is a reasonable
    excuse and no prejudice to the municipality.

[14]

The motion judge held that the notice period under the
Municipal Act,
    2001
also did not run while Bayden was not represented by a litigation
    guardian. She then held that there was no evidence Neville had been appointed
    to do anything other than bring a claim against the named defendants; Neville
    was not obliged to consider other claims, for example against the City.
    Therefore, the ten-day notice period did not run during Nevilles appointment.
    The affidavit of appointment for Dion, however, granted broad authority to act
    in this action. The motion judge held that the ten-day notice period therefore
    began to run with Dions appointment. Dion had given timely notice to the City,
    so the notice requirement was satisfied. In the alternative, the motion judge
    noted that Baydens being a minor was a reasonable excuse under s. 44(12) of
    the
Municipal Act, 2001
.

[15]

On July 14, 2016, the motion judge issued supplementary reasons in
    response to an inquiry from counsel for the City as to whether she intended to
    make final determinations with respect to whether Baydens claim against the
    City was barred by the
Limitations Act, 2002
or the
Municipal Act,
    2001.
As no order had yet been taken out, the motion judge held that she
    still had jurisdiction to entertain counsels request for clarification. In
    effect, she held that her order was final.

[16]

The order issued and taken out on July 14, 2016 goes beyond amending the
    statement of claim to add the City as a party and increasing the prayer for
    relief. It grants declaratory relief and states:

THIS COURT ORDERS AND DECLARES that the Plaintiffs proposed
    claim, in the form attached here as Schedule A, is not barred by either the
Limitations
    Act, 2002
or the
Municipal Act, 2001
.

[Citations
    omitted.]

D.

positions of the parties

[17]

On appeal, the Citys primary argument is that the motion judge erred in
    holding that the claim against it was not statute-barred. It submits that, under
    the
Limitations Act, 2002
, a minor is represented in relation to a
    claim as soon as someone takes steps on the minors behalf in relation to the
    claim, not when a statement of claim is issued. The City submits that Bayden
    was represented far earlier than 2014. Neville was representing him when she
    signed the contingency fee agreement with the law firm Wallbridge and when she
    signed the application for statutory accident benefits on Baydens behalf. The
    limitation period had therefore expired by the time of this motion.

[18]

The City also argues that the motion judge erred in failing to apply a
    discoverability analysis. Section 8 of the
Limitations Act, 2002
provides that the limitation period begins to run against a minor when the
    litigation guardian knew or ought to have known sufficient facts on which to
    base allegations against a potential defendant.

[19]

Finally, the City argues the ten-day notice period under the
Municipal
    Act, 2001
began, at the latest, in June 2014 when Wallbridge issued a
    statement of claim in which Neville held herself out as Baydens litigation
    guardian; there is no basis for finding that it began only when Dion was
    appointed as litigation guardian. Bayden was represented by counsel, so there
    was no reasonable excuse for the delay.

[20]

Bayden and Wallbridge argue that a minor is not represented in relation
    to a claim until the representative has complied with the requirements of r. 7.02(2)
    of the
Rules of Civil Procedure
by swearing an affidavit consenting to
    act as litigation guardian. Because there is no evidence that Neville filed the
    affidavit required by r. 7.02(2), they argue she was not Baydens litigation
    guardian at all. Bayden was not represented by a litigation guardian until Dion
    was appointed in 2015. Neither the limitation period nor the notice period
    began to run until that time. In the alternative, they argue Bayden has a
    reasonable excuse for not giving notice within the ten days required under the
Municipal
    Act, 2001
,

as he was a minor.

E.

Issues

1.

Did the motion judge err in finding that the two-year limitation period
    under the
Limitations Act, 2002
did not bar the claim against the
    City?

2.

Did the motion judge err in finding that notice had been given to the City
    within the ten-day period set out in s. 44 of the
Municipal Act, 2001
?

3.

Did the motion judge err in finding that there was no prejudice to the
    City?

F.

jurisdiction

[21]

Before turning to the issues on appeal, a few comments respecting
    jurisdiction must be made.

[22]

Paragraph 1 of the order appealed from grants leave to amend the statement
    of claim to add the City and others as defendants. Granting leave to add party
    defendants is interlocutory:
Hunter v. Richardson
, 2013 ONCA 731,
    [2013] O.J. No. 5896.

[23]

Paragraph 2 of the order grants leave to increase the prayer for relief
    and make other amendments consistent with the addition of the defendants. Paragraph
    2 is also an interlocutory order:
Merling v. Southam Inc., et al.
(2000), 128 O.A.C. 261.

[24]

The declaration that the action is not statute-barred in paragraph 3 of
    the order deprives the defendants of substantive defences and is therefore
    final:
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[25]

In general, where an order has both final and interlocutory aspects, the
    appeal lies to this court only from the final portion of the order:
Cole v.
    Hamilton (City)
(2002), 60 O.R. (3d) 284 (C.A.). Leave to appeal from the
    interlocutory portion must be obtained from the Divisional Court, at which
    point the appellant may move to have the appeals heard together in this court.

[26]

However, in
Lax v. Lax
(2004), 70 O.R. (3d) 520 (C.A.), the
    court heard the appeal from both the final and interlocutory aspects of an
    order where because the two issues are so interrelated  once the first issue
    was before this court, leave would inevitably have been granted on the second.
    That is the case here. Whether the City was properly added as a defendant
    depends on whether the action against it is statute-barred. Therefore, both
    aspects of the appeal were heard by this court.

[27]

I would just add that having regard to
Fram Elgin Mills 90 Inc. v.
    Romandale Farms Ltd.,
2016 ONCA 404, 131 O.R. (3d) 455, the motion judge
    did not have the power to make a final order on the motion to amend the
    pleading.

G.

RELEVANT STATUTORY PROVISIONS

(1)

Limitations Act, 2002

4. 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.

6. The limitation period established by section 4
    does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in
    relation to the claim.

8.
If a person is represented by a
    litigation guardian in relation to the claim, section 5 [relating to
    discoverability of the claim] applies as if the litigation guardian were the
    person with the claim.

(2)

Municipal Act,

2001

44. (1) The municipality that has jurisdiction over a
    highway or bridge shall keep it in a state of repair that is reasonable in the
    circumstances, including the character and location of the highway or bridge.

(2)
A municipality that
    defaults in complying with subsection (1) is, subject to the
Negligence Act
,
    liable for all damages any person sustains because of the default.



(10)
No action shall be
    brought for the recovery of damages under subsection (2) unless, within 10 days
    after the occurrence of the injury, written notice of the claim and of the
    injury complained of has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or

(b) if the claim is against two or more
    municipalities jointly responsible for the repair of the highway or bridge, the
    clerk of each of the municipalities.

(11)
Failure to give notice
    is not a bar to the action in the case of the death of the injured person as a
    result of the injury.

(12)
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.

H.

Analysis

(1)

Did the motion judge err in finding that the two-year limitation period
    in the
Limitations Act, 2002
did not bar the claim against the City?

[28]

The motion judge held that Bayden was not represented by a litigation
    guardian until June 11, 2014 at the earliest, and that is when the two-year
    limitation period began to run. I would agree with her.

[29]

On appeal, the Citys primary argument is that the motion judge erred in
    finding that the claim against it was not statute-barred under the
Limitations
    Act, 2002
. The City submits a minor is represented in relation to a claim
    as soon as someone takes steps on the minors behalf in relation to the claim,
    not when a statement of claim is issued. Neville was representing Bayden when
    she signed the contingency fee agreement or, in any event, when she signed the
    application for statutory accident benefits in 2011. Neville knew, or ought to
    have known, of the claims against the City in 2011 at the latest. Thus, the
    City submits the limitation period had expired by the time this motion was
    brought.

[30]

I would reject the Citys submission. The
Limitations Act, 2002
contemplates a person with a claim and a person against whom the claim is made.
    Where the person with a claim is a minor, the Act requires that the minor be
    represented by a litigation guardian in relation to the claim. The word
    represented signifies that the litigation guardian may do anything in a
    proceeding that the party under a disability would ordinarily be required or
    authorized to do (r. 7.05(1)).
[2]
Where the litigation guardian enters into a solicitor and client relationship,
    the solicitor is the agent of the litigation guardian. The solicitor owes a
    fiduciary duty to the litigation guardian and acts on her behalf. The solicitor
    is therefore an extension of the litigation guardian  they are one and the
    same and allied in interest. This conclusion is supported by the requirement in
    rr. 7.05(3) and 15.01(1) of the
Rules of Civil Procedure
that a
    litigation guardian other than the Childrens Lawyer or the Public Guardian and
    Trustee must be represented by a lawyer.

[31]

Thus, Nevilles contingency fee agreement with Wallbridge did not result
    in Bayden being represented by a litigation guardian in relation to the claim.
    At that time, there had been no representation on behalf of Neville to anyone
    other than her solicitor.

[32]

In relation to the statutory accident benefits application, Neville
    simply signed as guardian, not as litigation guardian. She could equally have
    been signing as Baydens substitute decision maker or guardian under the
Substitute
    Decisions Act, 1992
, S.O. 1992, c. 30, or using the word guardian
    colloquially, as she is Baydens mother.

[33]

I would also reject Bayden and Wallbridges position that Bayden was not
    represented by a litigation guardian in relation to the claim when the
    statement of claim against the Legendre defendants was issued in June 2014.

[34]

Neville clearly held herself out or represented herself as Baydens
    litigation guardian to the Legendre defendants, who were the driver of the car and
    the owner of the car with whom she was involved in the accident. The fact that Neville
    did not file the affidavit a litigation guardian is required to file under
    r. 7.02(2) makes the proceeding an irregularity and not a nullity:
Gauthier
    v. Gauthier,
(1947) O.W.N. 1053; [1947] O.J. No. 342 (Ont. H.C.); see also
Salisbury v. Sun Life Assurance Co. of Canada
, 2013 ONCA 182, [2013]
    O.J. No. 1310. It would not make sense for the limitation period to be tolled
    simply because the person holding herself out as the litigation guardian had
    not filed the required affidavit under the Rules. It is within the litigation
    guardians power to file the affidavit or not. To allow the limitation period
    to toll on that basis would effectively make the limitation period unlimited
    because the litigation guardian could indefinitely delay filing the affidavit.

[35]

It appears Bayden may have both a claim against the Legendre defendants and
    a claim for negligence against Neville as the driver of the vehicle in which he
    was a passenger.
Thus, Neville has a conflict of interest in
    relation to those potential claims. Any benefit gained by Bayden in having a
    litigation guardian act for him would be detrimental to Nevilles case and vice
    versa. Neville could be forced to choose between her own interests and, as litigation
    guardian, those of Bayden.
As a result, Neville has a conflict of
    interest that would bar her from acting as Baydens litigation guardian in the
    context of his claims against the Legendre defendants and Neville herself (rr.
    7.02(2)(g) and 7.03(10)(i)(iii)).
[3]


[36]

However, Neville has no conflict of interest in relation to Baydens
    claim against the City.
Neville has no interest adverse to
    Baydens having a litigation guardian act for him against the City. In that
    context, unlike in his claims against her and the Legendre defendants, Neville
    would not be forced to choose between her own interests and those of Bayden. There
    was therefore nothing preventing her from carrying out her duties as his litigation
    guardian. N
evilles conflict of interest does not prevent the running of
    the two-year limitation period nor does it absolve her from discharging her
    responsibilities towards Bayden in his claim against the City. Further, Neville
    ought to have taken steps to have someone else act or be appointed as litigation
    guardian when the conflict in the other claims became apparent: see
Socha
    v. Peninsula Towing & Recovery Inc.,
2015 ONSC 5076, 127 O.R. (3d) 57,
    at para. 25.

[37]

I would also reject the submission that Neville only represented herself
    as Baydens litigation guardian to the Legendre defendants and that, as a
    result, time did not begin to run in respect of the claim against the City. The
    statement of claim is a public document. I also note that s. 6 of the
Limitations
    Act, 2002
does not speak to representation in relation to specific
    defendants; the representation by a litigation guardian is in relation to the
    claim. Time began to run under the
Limitations Act, 2002
on June 11,
    2014.

[38]

The limitation period ended on June 11, 2016. Bayden filed his motion to
    add parties, including the City, on September 15, 2015. Thus, I would agree
    with the motion judge that the motion was not statute-barred under the
Limitations
    Act, 2002.

(2)

Did the motion judge err in her application of the
Municipal Act,
    2001
?

[39]

Section 44(10) of the
Municipal Act, 2001
provides that
    no action shall be brought against a municipality for failure to keep a highway
    in a reasonable state of repair unless notice is given to the municipality
    within ten days of the occurrence of the injury. The notice requirement in s.
    44(10) is similar in character to a limitation period, although it is not
    strictly speaking a limitation period:
Patrick v. South West Middlesex
    (Municipality)
, 2017 ONSC 17,
[2017] O.J. No. 7, at para. 81. However, under s. 44(12), the action is not
    barred if there is a reasonable excuse for not giving notice and the
    municipality is not prejudiced in its defence.

[40]

I would hold that the ten-day notice period did not begin to run until
    Bayden had a litigation guardian, or, alternatively, that he had a reasonable
    excuse for not bringing the action until he had a litigation guardian
[4]
.
    However, as I have indicated above in discussing the
Limitations Act, 2002
issue, once Neville issued
    the statement of claim on Baydens behalf on June 11, 2014, time began to run
    and the motion judge erred in holding that it did not run because Neville
    failed to file the affidavit required under the
Rules of Civil Procedure
.

[41]

I now turn to the motion judges alternative holding that if
    Neville, as Baydens litigation guardian, was required to give notice to the
    City, she had a reasonable excuse for not doing so because Bayden was a minor
    and the policy of the law is to protect minors.

[42]

The plaintiff bears the onus of establishing a reasonable excuse:
Argue
    v. Tay (Township)
, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal
    refused [2013] S.C.C.A. No. 246. The words reasonable excuse are to be given
    a liberal interpretation because the municipality is protected by the
    requirement that it not be prejudiced in its defence.

[43]

In determining what constitutes a reasonable excuse, the words should be
    given their plain and ordinary meaning, and the court should consider all of
    the circumstances: see
Crinson
, at paras. 20-23; and
Seif
,
at paras. 26, 47. Those circumstances
    would include,
among other things
:
    whether the plaintiff was capable of forming the intention to sue the
    municipality within the notice period under s. 44(10), or had a representative
    whose responsibility it was to retain a lawyer and pursue all claims; the
    length of the delay before notice was given; and any explanation of the reason
    for the delay. Lack of awareness of the notice requirement, standing alone,
    does not constitute a reasonable excuse, but when considered in combination
    with other extenuating circumstances, a court may conclude a reasonable excuse
    exists: see
Crinson
, at para. 38; and
Seif
,

at para. 29 (per Hoy A.C.J.O., partly in
    dissent but not on this point).

[44]

Bayden had a representative  Neville  who was capable of forming the
    intention to sue the municipality within the notice period, and she had
    retained a lawyer to pursue claims on his behalf. It was improper for the motion
    judge to ignore the effect of that circumstance. A litigation guardian is the
    legal representative of the person under a disability and, pursuant to r. 7.05(2),
    shall diligently attend to the interests of the person under disability and
    take all steps necessary for the protection of those interests. Further
, as I have indicated above in relation to the limitation period
    issue, Neville had no conflict of interest with respect to any lawsuit brought
    by Bayden against the City. Indeed, the success of such an action would reduce
    or eliminate Nevilles own liability. Thus, the motion judge erred in holding
    that Baydens right to bring an action against the City needed further protection
    and that this provided a reasonable excuse for not giving timely notice to the
    City.

[45]

The question before the motion judge was whether it was reasonable for
    Bayden, through his litigation guardian, not to have given notice until May 31,
    2015  almost a year after the date that Bayden was first represented by a
    litigation guardian. The lengthy period of delay affects both the
    reasonableness of the excuse and whether the municipality is prejudiced. It is
    a circumstance the motion judge was required to consider: see
Argue v. Tay
    (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, at para. 51, affirmed
    2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal refused [2013] S.C.C.A.
    No. 246; and
Bramer v. Hamilton (City)
, 2015 ONSC 713, 40 M.P.L.R.
    (5th) 150, at para. 101. She did not do so.

[46]

There is nothing in the record to suggest that by the time Neville acted
    as Baydens litigation guardian, on June 11, 2014, the extent of his injuries
    were unknown.

[47]

The City asserts in its factum, at para. 18:

There is no evidence that, at any time during the retainer of
    Wallbridge, any steps were taken to investigate a potential claim against the
    City. As Ms. Neville, testified, this never came up.

[48]

Wallbridges factum simply denies this paragraph.

[49]

Even if we were to accept the Citys assertion as a fact, it
    does not help Bayden. One possible explanation why suing the City never came up
    may be because, at the time, Neville made no complaint about the condition of
    the intersection as being a cause of the accident, and the City was not
    considered to be a proper defendant. On the other hand, if the City is a proper
    defendant, and Wallbridge, as the solicitor for the litigation guardian, either
    through ignorance or negligence failed to communicate the notice requirement to
    Neville and allowed the notice period to expire, then Wallbridge would likely
    have been negligent: see
Halsburys Laws of Canada
, Negligence and
    other Torts, (Toronto: LexisNexis Canada, 2016 Reissue), at HTO 95-96 and
    cases cited therein, including the statement that allowing the limitation
    period of a meritorious action to expire is solicitors negligence. See also:
614128
    Ontario Ltd. (O/A Trisan Construction) v. Bianchi
, 2016 ONSC 2450,
[2016] O.J. No. 1819,
    at para. 116,
Bates v. Ewachniuk
,
    2001 BCSC 71,

[2001] B.C.J. No.
92,

in relation to the statutory notice period under the
Municipal Act,
R.S.B.C.
    1979, c. 290;
Bourassa v. Temiskaming Shores (City)
, 2016 ONSC 1211,
    49 M.P.L.R. (5th) 226, at para. 65; and, more generally,
Jarbeau v. McLean
,
    2017 ONCA 115, [2017] O.J. No. 717, respecting suing a solicitor for loss of a
    chance.

[50]

The knowledge of an agent is ordinarily imputed to the principal because
    it is the duty of the agent to communicate that knowledge:
Durbin v.
    Monserat Investments Ltd.
(1978), 20 O.R. (2d) 181 (C.A.); and
Vescio
    v. Peterman
(1999), 45 O.R. (3d) 613

(C.A.).

See also by analogy s. 12(2) of the
Limitations Act,
    2002
, which states that a principal is deemed to have knowledge of any
    matter that an agent knew or ought to have known. As indicated above, even if
    solicitors negligence were to be established, that circumstance alone would
    not suffice to extend the statutory notice period

[51]

In summary, Bayden had a litigation guardian, Neville; she had no
    conflict of interest in relation to suing the City, and she had a good reason
    to try to limit her own potential liability by suing the City. The law firm which
    she retained to pursue claims on Baydens behalf, Wallbridge, did not sue the
    City. The only explanation in the record for not doing so is Nevilles evidence
    that, this never came up.

[52]

When there was a change of solicitors and a new litigation guardian, a
    motion was quickly brought to add the City as a party. However, almost a year
    had elapsed since the time Bayden first had a litigation guardian representing
    him. In all the circumstances, the notice to the City given by Baydens current
    litigation guardian, Dion, was out of time, and there was no reasonable excuse
    for the delay.

[53]

Having regard to my conclusion, it is not strictly necessary to deal
    with the issue of prejudice to the City for the purpose of disposing of this
    appeal. However, I will make some limited comments with a view to providing
    guidance in this regard.

[54]

The motion judge held that although the City had destroyed its
    maintenance records due to the passage of time, there was no prejudice to the
    City caused by adding it as a party to the action because Baydens claim was
    about road design issues, not maintenance or inspection. The City had not
    destroyed its road design records.

[55]

I would respectfully disagree that Baydens claim does not include
    maintenance or repair issues. In
The Queen v. Jennings et al.,
[1966]
    S.C.R. 532, the Supreme Court held that a municipalitys duty of repair
    includes erecting and maintaining proper signs. Baydens statement of claim against
    the City includes claims of failure or neglect to have adequate signs and
    lighting at the intersection; failure to warn motorists of the lack of illumination;
    and a claim that the City allowed the area to become an area of danger when
    they could have prevented same by the exercise of reasonable care and
    diligence, including modifications to the road and/or signs and/or lights. Just
    as the alleged failure to have proper signage is considered a repair issue, as
    it was in
Jennings,
so too it seems to me is a failure to have proper
    illumination. Thus, the claims against the City include claims for failing to
    keep the intersection in a reasonable state of repair.

[56]

While the passage of time is also a consideration with respect to
    prejudice, there is some indication in the record that the signage and lighting
    of the intersection are basically unchanged since the date of the accident. As
    it is unnecessary for me to resolve the issue of prejudice, I do not propose to
    comment further.

I.

Disposition

[57]

Accordingly, I would allow the appeal, set aside the order of the motion
    judge and order that the claim against the City be and is hereby dismissed.

J.

Costs

[58]

The City is entitled to its costs against the respondent before the
    motion judge and before us. The costs of the appeal are fixed by agreement of
    counsel at $15,000 inclusive of disbursements and all applicable taxes.

Karen M. Weiler J.A.

I agree. M.L. Benotto J.A


Roberts J.A.: (dissenting in part)

A.

Overview

[59]

I agree with my colleagues conclusion that the motion
    judges order should be set aside.  The respondent did not seek a declaration
    but only an interlocutory order to amend his pleadings, adding the City, among
    other parties, as a defendant.

[60]

I
    respectfully disagree, however, with my colleagues conclusion that the
    question of whether the City ought to be added as defendant requires a final
    determination of the limitation period issue under
s. 4 of the
Limitations
    Act
,
2002
, S.O. 2002, c. 24, or of the
notice period issue under ss. 44(10)
    and (12) of the
Municipal Act,
    2001
,
S.O.
    2001, c. 25.

[61]

As I
    shall explain, the respondent has met the low onus placed on him on a motion to
    amend a pleading.  The motion judge did not otherwise err in the exercise of
    her discretion by adding the City as a defendant. The limitation and notice
    period issues raised by the City ought to be left for final determination on a
    motion for that purpose or at trial.

[62]

Although
    I have determined that both the limitation and notice period issues should be
    left for future adjudication, I consider that the notice period issue is most
    obviously the one that ought to be decided on a fuller record after the
    exchange of pleadings. There is relatively limited jurisprudence as to what
    constitutes reasonable excuse. Moreover, the determination of reasonable
    excuse is more fact specific and not as clearly defined as the provisions
    under the
Limitations Act, 2002
.

[63]

Accordingly, I would allow the Citys appeal to the extent that I would
    grant it leave to plead the limitation and notice period defences under the
Limitations
    Act, 2002
, and the
Municipal Act, 2001
. I would otherwise dismiss
    the Citys appeal.

B.

Analysis

[64]

The motion judge erred in making a final
    determination with respect to the limitation and notice period issues under the
Limitations Act
, 2002
and the
Municipal Act, 2001
. This
    was a pleadings motion brought under rr. 26.01 and 5.04(2) of the
Rules of
    Civil Procedure
. This was not a motion to determine an issue of law before
    trial, nor was it a summary judgment motion.  No declaratory relief was
    requested. There was no trial of an issue. There were, however, credibility and
    factual issues that should have been left for final determination on a summary
    judgment motion or at trial.

[65]

On an amendment motion, the motion judge is not to decide the merits of
    the underlying action and proposed amendments:
Fram Elgin Mills 90 Inc. v.
    Romandale Farms Limited
, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 36. 
    As my colleague observes, an order adding a party defendant is ordinarily meant
    to be an interlocutory order that does not affect the parties substantive
    rights, because the litigation continues:
Fram
, at para. 28.

[66]

The motion judges conclusion that the respondents claim was not
    statute-barred by s. 4 of the
Limitations Act, 2002
, or s. 44(10) of the
Municipal Act, 2001
,
was made in the context of an amendment
    motion. It was therefore an error for the motion judge to make a final
    determination of the limitation and notice period issues.

[67]

In the present case, a rejection of the arguments put forward for
    not allowing the proposed amendments does not convert the overall nature of the
    respondents motion from an amendment motion into a r. 21.01(1)(a) motion:
Fram
,
    at para. 38.
[5]
The amendments are to be granted unless they would have been struck out under
    r. 21.01(1)(b) as disclosing no reasonable cause of action:
Fram
, at
    para. 31.  In allowing the amendment motion, the motion judge was only
    empowered to make a preliminary assessment about the tenability of the
    amendments:
Fram
, at para. 39.

[68]

The motion judge erred in effectively addressing the limitation
    and notice period issues as if this were not a pleadings motion but rather a
    motion for judgment on the limitation and notice period defences, which had not
    yet been pleaded:
Tran v. University of Western Ontario
, 2016 ONCA
    978, [2016] O.J. No. 6645, at para. 21.

[69]

This court has cautioned against the practice of challenging a
    claim based on a limitation defence where the proposed defendant has yet to
    deliver a statement of defence, because a court cannot gain a complete picture
    of the issues in a case without reading all of the pleadings. The claimant is
    entitled to reply to a statement of defence and to put before the court further
    facts, for example, on the question of the discoverability of the claim.  It
    would only be at that point that the issue of discoverability would be fully
    joined.  (See:
Tran
, at paras. 19 to 21;
Metropolitan Toronto
    Condominium Corporation No. 1352 v. Newport Beach Development Inc.
, 2012
    ONCA 850, 113 O.R. (3d) 673, at para. 115;
Greatrek Trust S.A./Inc. v.
    Aurelian Resources Inc.
, [2009] O.J. No. 611 (S.C.J.), at
    para. 18.)


[70]

Parties on an amendment motion are not expected to put their best foot
    forward, as they would on a motion for summary judgment. As a result, the
    evidentiary burden on the moving party in an amendment motion, even to add
    parties after the expiry of a limitation period, is low:
Pepper v. Zellers
    Inc.
(2006),
83 O.R. (3d) 648
(C.A.),
    at para. 14.

[71]

In
Collins
, at paras. 8-9, this court reviewed the case law
    dealing with amendments to a statement of claim where it was alleged that the
    limitation period had expired. This court concluded that, for the most part,
    the decisions canvassed stand for the principle that a motion to add a new
    party after the alleged expiry of a limitation period should in the normal
    course be considered based on the allegations in the proposed amended pleading
    without the need to consider an evidentiary record on the limitation issue.
    This court went on to explain that this is different from a motion for summary
    judgment to dismiss a claim based on the expiry of a limitation period. In the
    latter case, the court is making a final rather than an interlocutory decision.

[72]

As I noted earlier, the notice period issue under the
Municipal Act
,
    2001
gives rise to myriad credibility issues and issues of fact.
    Specifically, pursuant to s. 44(12) of the Act, the questions as to whether the
    respondent had reasonable excuse for the delay in giving the requisite ten-day
    notice under s. 44(10) of the Act, and whether the City has suffered prejudice
    in its defence, require determination on a summary judgment motion or at trial.

[73]

It is noteworthy in that regard that the City argues that it cannot be
    predicted at this early stage that the Citys duly purged records could have no
    relevance to the issue of prejudice. I agree. The Citys submission
    demonstrates that the issue of prejudice requires determination on a summary
    judgment motion or at a trial.

[74]

The same is true with respect to the issue of whether the respondent has
    a reasonable excuse for the delay in giving notice to the City. I disagree with
    the Citys assertion that there was nothing on the record that could be
    considered for the purpose of determining whether there were live issues that
    merit consideration on a summary judgment motion or at trial with respect to
    the issue of reasonable excuse.

[75]

What constitutes reasonable excuse for not giving the required ten-day
    notice is to be given a broad and liberal interpretation and, where the City is
    not prejudiced by the delay, a modest excuse may be sufficient to justify the
    late notice:
Fremeau v. Toronto (City)
,
    [2009] O.J. No. 2391 (S.C.J.), at para. 24
.  The court should consider
    all of the circumstances: see
Crinson v. Toronto
(City)
, 2010 ONCA 44
, 100 O.R. (3d) 366, at paras.
    20-23;
Seif v. Toronto (City)
, 2015 ONCA 321, 125 O.R. (3d) 481, at
    paras. 26 and 47. It is also important to note that the types of circumstances
    that will amount to a reasonable excuse have not been exhaustively defined or
    catalogued.

[76]

While the motion judge emphasized the absolute need to give primacy to
    the protection of minors as part of the reasonable excuse for not giving notice,
    she also indicated that this was not the only factor on which she determined that
    there was a reasonable excuse. In her view, it was one factor among other
    things that could constitute a reasonable excuse. I agree with the motion
    judge that it is of significance to the issue of reasonable excuse that the
    complex circumstances of this case involve a catastrophically impaired infant
    who was entirely dependent on others to properly assert his claims and that
    they may not have adequately represented him. As a result, it is all the more
    important that Baydens potential claims not be foreclosed prematurely,
    especially in the absence of settled pleadings and a full record.

[77]

I am satisfied that there are issues of fact and credibility relevant to
    the questions of reasonable excuse and prejudice that remain to be determined. 
    Some of these issues, which may be expanded upon, include the following:

i.

Whether
    the respondent was capable of forming the intention to sue the municipality
    within the notice period under s. 44(10) of the
Municipal Act, 2001
.
    Relevant to this issue are the catastrophic injuries suffered by the respondent
    and his very young age.

ii.

Whether the respondent
    had a representative whose responsibility it was to retain a lawyer and pursue
    all possible claims. First, given her own injuries, could Ms. Neville properly
    represent Bayden? She had herself suffered a brain injury as a result of the
    accident and was experiencing pain and struggling when she originally retained
    a solicitor.  Second, could she properly represent Bayden because of her
    conflict of interest?  From the outset, Baydens mother was in a conflict
    position with respect to her sons claims because she was the driver of the
    vehicle in which Bayden was injured.  Moreover, could she meet the requirements
    of r. 7.02(2)(g) of the
Rules of Civil Procedure
that she had no
    interest in the proceeding adverse to that of the person under disability or
    could act as litigation guardian for all of Baydens claims, including the
    claim against the City, given that his claims would be against her, as well as
    against the City? These questions raise issues that are still to be determined.

iii.

The alleged negligence of
    Wallbridge gives rise to the following issues: whether the law firm failed to
    consider and advise Ms. Neville of Baydens potential claims, including a
    possible claim against the City; whether the law firm was in a conflict of
    interest in purporting to represent both Bayden and his mother; and whether the
    law firm was negligent in the settlement of Ms. Nevilles claim.

iv.

As already mentioned, whether the
    Citys duly purged records could have relevance to the issue that it suffered
    prejudice to its defence.

v.

Whether the respondent
    will be able to rebut the presumption of prejudice caused by the delay in this
    case because of the Citys ability to access other sources of information about
    the accidents circumstances, such as, timely photographs of the scene.

vi.

Whether there will be an
    explanation for the long delay in giving notice, evidence of which was not
    advanced on the pleadings motion because it was a pleadings motion. Additional
    explanations may be forthcoming should a summary judgment motion be brought or
    at trial.

[78]

As my colleague notes, the length
    of the delay is a relevant consideration when examining reasonable excuse:
Argue
    v. Tay (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, at para. 51,
    affirmed 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal refused [2013]
    S.C.C.A. No. 246
. However, it is important to
    keep in mind that the length of delay, by itself, is not necessarily
    dispositive of whether there is reasonable excuse for the delay. The amount of
    delay that is acceptable has not been firmly established by the courts but
    depends on all of the other relevant circumstances of the particular case:
Delahaye
    v. Toronto (City)
, 2011 ONSC 5031, [2011]
    O.J. No. 4006, at paras. 37-38.

[79]

While any of the factors enumerated above, taken individually, may not
    be sufficient to constitute reasonable excuse on a summary judgment motion or
    at trial, in combination they may be enough to overcome the lengthy delay in
    this case and serve as reasonable excuse for the respondents failure to give
    the City notice within ten days of the commencement of the action in 2014:
Crinson
,
    at paras. 19 and 38;
Seif
,

at paras. 26-27, and 29 (per Hoy
    A.C.J.O., partly in dissent but not on this point). These were not issues that
    the motion judge was required to finally decide. It is sufficient for the
    purposes of the amendment motion that these issues give rise to issues of fact
    and credibility, which merit consideration on a summary judgment motion or at
    trial.

[80]

The motion judge exercised her discretion under rr. 5.04(2) and 26.01 of
    the
Rules of Civil Procedure
to permit a pleadings amendment to add
    the City to the respondents action.  In making that determination, the motion
    judge could not finally decide the limitation and notice period issues in
    favour of the respondent. She could only assess whether the amendments are
    tenable, whether there is sufficient evidence on the notice period issue to
    permit the amendments at this preliminary stage of the litigation, and whether
    the record gives rise to credibility issues and issues of fact that merit
    consideration on a motion for summary judgment or at trial.

[81]

In my view, the low threshold was met in this case. I see no error in
    the motion judges exercise of her discretion to allow the amendments.

C.

Disposition

[82]

Accordingly, I would allow the appeal to the extent of granting leave to
    the appellant to plead limitation and notice period defences under the
Limitations
    Act, 2002
and the
Municipal Act, 2001
. The appeal should
    otherwise be dismissed.

D.

Costs

[83]

The City was successful in its alternative relief on appeal and is
    entitled to costs against the respondent in the amount of $7,500. I would not
    overturn the costs awarded to the respondent on the motion below because the
    City was not successful in the main focus of its appeal to overturn the order adding
    it as a party defendant.

Released: L.R. May 12, 2017

L.B. Roberts J.A.





[1]
Counsel before the motion judge and before this court argued on the basis that
    Julia Neville did not swear the affidavit required and the appeal is disposed
    of on that basis.



[2]
A litigation guardian is an officer of the court and is a representative of a
    party, but is not a party to the proceedings: see
Lucas v. Coupal
, [1931] 1 D.L.R. 391
    (Ont. H.C.); and
Poulin v. Nadon
,
    [1950] 2 D.L.R. 303 (Ont. C.A.).



[3]
This conflict of interest would also prevent the same lawyer from acting for
    both Neville and Bayden unless they provided fully informed and voluntary
    consent  likely after both Neville and Bayden (through a litigation guardian
    other than Neville) had obtained independent legal advice: Law Society of Upper
    Canada,
Rules of Professional Conduct
,

r. 3.4-2.



[4]

In interpreting a statute there is a presumption
    of reasonableness: see Ruth Sullivan,
Statutory Interpretation
, 3d ed.
    (Toronto: Irwin Law, 2016), at pp. 222, 236. It is also presumed that the
    legislature does not intend unjust or inequitable results to flow from its
    enactments, and judicial interpretations should be adopted which avoid such
    results:
Ontario v. Canadian Pacific Ltd.
, [1995] 2 S.C.R. 1031, at
    para. 65. An interpretation of the
Municipal Act, 2001
which ignores the
    suspension of time due to the incapacity of a minor would not be in harmony
    with the
Limitations Act, 2002
and would therefore be contrary to
"the principle of
    interpretation that presumes a harmony, coherence, and consistency between
    statutes dealing with the same subject matter":

R. v. Ulybel Enterprises Ltd.
,
2001 SCC 56, [2001] 2 S.C.R. 867
, at para.
    52.
In relation to the related
    issue of discoverability of an injury and the running of a notice period,

the
    Supreme Courts decision in
Montreal (City) v. Vaillancourt,
[1977] 2 S.C.R.
    849, at 856-57 is arguably authority for the proposition that the notice period
    does not begin to run until the date of discovery. That said, in Ontario, the
    issue of discoverability is dealt with under s. 44(12) as a question of
    reasonable excuse:
Crinson v. Toronto (City)
, 2010 ONCA 44, 100 O.R.
    (3d) 366;
Seif v. Toronto (City)
, 2015 ONCA 321, 125 O.R. (3d) 481
.



[5]
Interestingly, and in contrast to the present case, in
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.), a case referenced by this court in
Fram
,
    the parties had singled out the limitation period issue for resolution in a
    motion brought under r. 21.01(1)(a).  In
Ball
, the defendant had brought
    a motion under r. 21.01(1)(a) for the final determination before trial of the
    legal issue raised in the pleadings as to whether the limitation period had
    expired.  This court concluded that the motion judge had finally determined the
    issue in favour of the respondent plaintiff that the limitation period had not
    expired.


