



COURT OF APPEAL FOR ONTARIO

CITATION:
Taylor
    v. Mayes, 2022 ONCA 297

DATE:  20220413

DOCKET: C69434

MacPherson, Paciocco and George JJ.A.

BETWEEN

George Taylor

Plaintiff

and

Sean Mayes and Diana Story

Defendants (Respondents)

and

Her Majesty the Queen, in Right of the Province
    of Ontario, Represented by the Ministry of Transportation of Ontario

Third Party

Robert Moss and Anna Dylewski, for the proposed third party
    (appellant), Cruickshank Construction Limited

R. Steven Baldwin, for the respondents

Casey Dorey, for George Taylor
[1]

Andrew Choi, for Her Majesty the Queen, in Right of
    Ontario, Represented by the Ministry of Transportation of Ontario
[2]

Heard: April 6, 2022

On appeal from the order
    of Justice Kristin Muszynski of the Superior Court of Justice, dated March 24,
    2021, with reasons at 2021 ONSC 2239.

REASONS FOR DECISION

[1]

Sean Mayes vehicle rear-ended George Taylors vehicle on Highway 401 in
    February 2013. Taylor commenced a lawsuit against the defendants.

[2]

The defendants, in turn, filed a Statement of Defence in which they
    blamed the accident on the condition of snow and slush on Highway 401 owned by
    Her Majesty the Queen, in Right of the Province of Ontario, as Represented by
    the Ministry of Transportation of Ontario (MTO). The defendants issued a
    third-party claim against MTO on November 10, 2016.

[3]

MTO refused to attend examinations for discovery or deliver productions
    after initially agreeing to do so. On October 1, 2019, the defendants obtained
    an order from Justice Ryan Bell of the Superior Court of Justice compelling MTO
    to attend discoveries and deliver productions.

[4]

During the examination for discovery of MTO on November 19, 2019, MTO
    identified Cruickshank Construction Limited (Cruickshank) as the contractor responsible
    for the relevant winter maintenance of the section of Highway 401 where the
    accident occurred.

[5]

The defendants brought a motion to add Cruickshank as a party.
    Cruickshank and MTO opposed the motion on the basis that the proposed claim
    against Cruickshank was statute barred by virtue of the
Limitations Act
    2002
, S.O. 2002, c. 24, Sch. B.

[6]

The motion judge dismissed the motion. She applied the two-stage test,
    essentially mirroring the wording of sections 5(1)(a) and 5(1)(b) of the
Limitations
    Act
, enunciated by this court in
Morrison v. Barzo
, 2018 ONCA
    979, at paras. 31-32:

The evidentiary burden on a plaintiff seeking to add a
    defendant to an action after the apparent expiry of a limitation period is two-fold.
    First, the plaintiff must overcome the presumption in s. 5(2) that he or she
    knew of the matters referred to in s. 5(1)(a) on the day the act or omission on
    which the claim is based took place, by leading evidence as to the date the
    claim was actually discovered (which evidence can be tested and contradicted by
    the proposed defendant). The presumption is displaced by the courts finding as
    to when the plaintiff subjectively knew he had a claim against the defendants.
    To overcome the presumption, the plaintiff needs to prove only that the actual
    discovery of the claim was not on the date the events giving rise to the claim
    took place. It is therefore wrong to say that a plaintiff has an onus to show
    due diligence to rebut the presumption under s. 5(2).

Second, the plaintiff must offer a reasonable explanation on
    proper evidence as to why the claim could not have been discovered through the
    exercise of reasonable diligence. The evidentiary threshold here is low, and
    the plaintiffs explanation should be given a generous reading, and
    considered in the context of the claim. [Citation omitted.]

[7]

Against the backdrop of this test, the motion judge carefully reviewed
    the factual background involving all the parties and reached this two-part
    conclusion:

I find that the defendants third party claim against
    Cruickshank is not statute barred by virtue of the
Limitations Act
.
    Consequently, Cruickshank is not at liberty to plead a limitation defence to
    the third party claim.

[8]

Cruickshank appeals from both components of this conclusion.

(1)

The statute barred issue

[9]

Cruickshank concedes that the standard of review on this issue is
    palpable and overriding error. As expressed in its factum:

The Learned Judges finding of fact that the Defendants had a reasonable
    explanation as to why they could not have discovered the Appellants in the two
    years after service of the Statement of Claim is entitled to deference. This
    finding of fact
was not reasonably supported by the evidence and was a
    palpable an overriding error
. [Emphasis in original.]

[10]

Cruickshanks
    principal submission is that the motion judge erred by not concluding that the
    defendants ought to have known of the potential claim against Cruickshank once
    it was served with the Statement of Claim. After that happened, says Cruickshank,
    the defendants offered no evidence or explanation to articulate why it took no
    steps in the relevant (for limitation purposes) two-year period.

[11]

We
    do not accept this submission. The motion judge pointed out that MTOs defence
    to third party claim makes no mention of an independent contractor whatsoever.
    Moreover, MTO completely refused to participate in the proceedings for a very
    long period of time (for reasons not connected to the legal issues in this
    appeal). This led the motion judge to conclude:

By the time [MTO] delivered its defence to third party claim,
    on January 6, 2017, I find that it was reasonable for the defendants to assume
    that [MTO] was responsible for the winter maintenance of this section of
    Highway 401 at the material time.  The failure of [MTO] to plead any material
    facts regarding the involvement of an independent contractor should not be to
    the detriment of the defendants.



If [MTO] had made timely documentary disclosure in accordance
    with its obligations, the Defendants would have had an opportunity to inspect
    the patrol records and identify that an independent contractor was involved in
    maintaining this section of Highway 401 at the material time.  The failure of [MTO]
    to make timely and appropriate documentary disclosure and [MTOs] initial
    refusal to produce a representative for an examination for discovery should not
    be to the detriment of the defendants.

[12]

In
    our view, this is an entirely fair analysis and conclusion. In any event, it is
    far removed from the labels unreasonable and palpable and overriding error.
    Accordingly, we uphold the motion judges decision to add Cruickshank as a
    third party in the action.

(2)

The second kick at the can issue

[13]

If
    unsuccessful on the first issue (which we have found to be the case),
    Cruickshank submits that it should have been added to the action as a third
    party but with leave to plead a limitations defence. Accordingly, the motion
    judge erred by saying: Consequently, Cruickshank is not at liberty to plead a
    limitation defence to the third party claim.

[14]

We
    do not agree with this submission. The motion was brought under Rule 26.01 of
    the
Rules of Civil Procedure
, RRO 1990, Reg 194, which provides:

On motion at any stage of an action the court shall
    grant leave to amend a pleading
on such
    terms as are just
, unless prejudice would result that could not
    be compensated for by costs or an adjournment. [Emphasis added.]

[15]

In
    an appropriate case, a motion judge can make a final determination on a
    limitation issue: see
Azzeh (Litigation Guardian of) v. Legendre
, 2017
    ONCA 385, at para. 38. In our view, it was just for the motion judge to do so.
    The parties provided a comprehensive record and made full submissions on the
    limitation issue. The litigation is now on the cusp of being seven years old.
    The motion judges legal analysis in support of her decision to add Cruickshank
    as a third party is sound. Taking these points together, what this seven-year-old
    litigation does not need is a second round in the ring on the limitation issue.

[16]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $10,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

David M. Paciocco
    J.A.

J. George J.A.





[1]
George Taylor was not named as a respondent in this appeal. Counsel for Mr.
    Taylor appeared at the appeal hearing, but made no submissions.



[2]
Her Majesty the Queen, in Right of the Province of Ontario, Represented by the
    Ministry of Transportation of Ontario, was not named as a respondent in this
    appeal. Counsel for Her Majesty the Queen appeared at the appeal hearing, but
    made no submissions.


