



COURT OF APPEAL FOR ONTARIO

CITATION: Arcari v. Dawson, 2016 ONCA 715

DATE: 20160930

DOCKET: C61273

Hoy A.C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Lynda Arcari

Appellant

and

John A. Dawson

Respondent

Glenn Bogue, for the appellant

Dawn Phillips-Brown, for City of Kitchener and Region of
    Waterloo

Heard:  September 15, 2016

On appeal from the order of Justice Sloan of the Superior
    Court of Justice, dated October 2, 2015.

ENDORSEMENT

[1]

The appellant, Lynda Arcari, was injured when she was struck by a
    vehicle as she crossed the street. She sued the driver of the vehicle.  She moved
    to add the respondents, the City of Kitchener and the Regional Municipality of
    Waterloo, as defendants to the action.  The motion judge dismissed her motion on
    the basis that her claim against the respondents was statute-barred. She
    appeals, and also seeks leave to appeal the motion judges costs disposition.

[2]

For the reasons that follow, we dismiss the appeal of the motion judges
    order dismissing the appellants motion to add the respondents, but grant leave
    to appeal the costs disposition, allow the appeal as to costs, and fix costs of
    the motion below at $10,500, inclusive of HST and disbursements.

Background

[3]

On December 2, 2009, a car struck the appellant, Lynda Arcari, as she
    crossed the street in front of a hospital in the City of Kitchener, beside a
    crosswalk. The appellants original lawyer hired an accident reconstruction
    expert to produce a report about the cause of the accident. This engineer found
    that the drivers speed caused the accident. The appellant sued the driver in
    December of 2010 and her action was set to go to trial in September 2015.

[4]

However, the appellant hired a new lawyer. When he attended at the
    accident scene, it was 
obvious
to him, given what he asserted in oral argument to
    be his unique professional experience, that the design and safety features (or
    lack thereof) at the crosswalk were contributing factors to the 2009 accident.
    The appellant accordingly moved to add the respondents, the City of Kitchener
    and the Regional Municipality of Waterloo, as defendants.

[5]

The motion judge observed that the appellants expert attended at the
    accident scene within one year where all of the design features or deficiencies
    were there to be seen, noted and reported on.  The motion judge found that the
    respondents alleged negligence was as close to within the actual knowledge
    of the [appellants] lawyer and engineer as it can come. In his view, it was
    not a case in which discoverability and due diligence could play a role in
    extending the limitation period. He concluded that the appellant ought to have
    known that an act or omission of one of the respondents had contributed to her
    injuries. He awarded the respondents costs, calculated on a substantial
    indemnity scale, in the amount of $14,000.

The Legal Context

[6]

Before addressing the appellants arguments on appeal, it is useful to
    briefly set out the legislative and jurisprudential framework.

[7]

Pursuant to s. 21 of the
Limitations Act
, S.O. 2002, c. 24,
    Schedule B, the clear expiration of a limitation period is an absolute bar to
    the addition of a party to an already existing action:
Joseph v. Paramount
    Canadas Wonderland
, 2008 ONCS 469, at paras. 26-28. Subject to the
    statutory exceptions from the general rule, none of which are at issue in this
    case, that bar arises immediately after the second anniversary of the day the
    claim was discovered (s. 4).

[8]

Section 5 of the
Limitations Act, 2002
, provides as follows:

5.  (1)  A claim is discovered on the earlier of,

(a)     the day on which the person with the claim
    first knew,

(i)      that the injury, loss or damage had
    occurred,

(ii)      that the injury, loss or damage was caused
    by or contributed to by an act or omission,

(iii)     that the act or omission was that of the
    person against whom the claim is made, and

(iv)     that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b)     the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).  2002, c. 24, Sched. B, s.
    5 (1).

Presumption

(2)  A person with a claim shall be presumed to have
    known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is
    proved.  2002, c. 24, Sched. B, s. 5 (2).

[9]

When a reasonable person with the abilities and in the circumstances of
    the person with the claim ought to have known of the matters described in
    clause 5(1)(a) is a question of fact:
Lima v. Moya
, 2015 ONSC 324, at
    para. 76, affd on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.

[10]

When
    a plaintiffs motion to add a defendant is opposed on the basis that her claim
    is statute-barred, the motion judge is entitled to assess the record to
    determine whether, as a question of fact, there is a reasonable explanation on
    proper evidence as to why she could not have discovered the claim through the
    exercise of reasonable diligence. If the plaintiff does not raise any
    credibility issue or issue of fact that would merit consideration on a summary
    judgment motion or at trial and there is no reasonable explanation on the evidence
    as to why the plaintiff could not have discovered the claim through the
    exercise of reasonable diligence, the motion judge may deny the plaintiffs motion
    (
Pepper v. Zellers Inc.
(2006)
,
    83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

The Appellants Position Regarding the Discoverability Issue

[11]

The
    appellant argues that the motion judge erred in concluding that she ought to
    have known that an act or omission of the respondents contributed to her
    injuries. She submits that she has a reasonable explanation as to why she could
    not have discovered her claim against the respondents through the exercise of
    reasonable diligence. She hired an expert engineer who did not identify the
    respondents as having contributed to her injuries. Counsel argues that hiring
    the engineer was sufficient due diligence to postpone the limitation date. He
    does not suggest that her expert was negligent. Rather, counsel says that the
    issue was so complex that that it was not even obvious to the engineer,
    although it was to him.

[12]

In
    her factum (but not in her oral submissions), the appellant further argues that
    the motion judge failed to take into account the full extent of her injury in
    assessing discoverability.

Analysis

[13]

We
    reject these arguments.

[14]

There
    is no basis to interfere with the motion judges finding of fact that the
    appellant ought to have known that an act or omission of one of the respondents
    had contributed to her injuries. As we have indicated, counsels submission was
    that it was 
obvious
    to him
when he attended the site in 2015
, again, given his unique experience,
that the design and safety features (or lack thereof) at the crosswalk were
    contributing factors to the 2009 accident. He submits that the issue was so
    complex that it was not even obvious to the engineer, although it was to him
    upon a site visit following the accident.

[15]

There
    is no evidence to support this submission, such as evidence from the engineer
    explaining why the issue was not clear to him. As is stated in Paul M. Perell
    & John W. Morden,
The Law of Civil Procedure in Ontario
, 2d ed.
    (Markham, Ont.: LexisNexis, 2014), at para. 2.284: it is incumbent upon the
    plaintiff to lead some evidence of the steps he or she took to ascertain the
    identity of the responsible party and provide some explanation as to why the
    information was not obtainable with due diligence before the expiry of the
    limitations period. We also reject the appellants submission that merely
    retaining an engineer was sufficient to discharge the due diligence
    responsibility and postpone the limitation period indefinitely.

[16]

The
    appellant raised no credibility issue or issue of fact relevant to
    discoverability that would merit consideration on a summary judgment motion or
    at trial.

[17]

Although
    a motion to add defendants is not a motion for summary judgment, the goal of a
    fair process that results in just adjudication of disputes that is
    proportionate, timely and affordable is relevant in this context as well:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28. It may well be
    that this court should interpret
Pepper

in light of
Hryniak

and re-evaluate the suggestion that
Pepper

sets a strong
    default rule in favour of committing the issue of discoverability to trial.  We
    leave that matter for another day.

[18]

The
    motion judge did not err by not considering the full extent of the appellants injury
    in assessing discoverability. In 2010, the appellant commenced her action
    against the driver, claiming significant injuries to her neck and shoulder.
    Further, she pleaded impairment of her ability to work. It is clear that, at
    that time, she understood that she had damages warranting a lawsuit and that
    her injuries did not impair her ability to appreciate the matters referred to
    in s. 5(1)(a). The fact that she later discovered that her injuries were more
    extensive did not extend the limitation period against the respondents.

Costs Below

[19]

The
    motion judge awarded the respondents costs on a substantial indemnity scale
    throughout. The respondents concede that the appellant did not engage in
    conduct warranting an award of costs against her on a substantial indemnity
    scale. Therefore, we grant leave to and allow the appellants appeal on costs. The
    respondents are entitled to costs on a substantial indemnity scale only from
    the date of their settlement offer.

Disposition

[20]

We
    dismiss the appeal of the motion judges order dismissing the appellants
    motion to add the respondents, but grant leave to appeal the costs disposition,
    allow the appeal as to costs, and reduce the costs of the motion below awarded
    by the motion judge to $10,500, inclusive of HST and disbursements. The
    respondent shall be entitled to costs of the appeal, fixed in the amount of $5,500,
    inclusive of HST and disbursements.

Hoy A.C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.


