





CITATION:
Sloan v. Ultramar
          Limited, 2011 ONCA 91



DATE: 20110203



DOCKET: C52501



COURT OF APPEAL FOR ONTARIO



Armstrong, Epstein and Karakatsanis JJ.A.



BETWEEN



Audrey Sloan



Plaintiff (Appellant)



and



Ultramar
          Limited and Sauve Heating Limited
Rick Brown
          and R.T. Brown Trucking Ltd.




Defendants (Respondents)



Alexandra White, for the appellant, Audrey Sloan



Mitchell K. Kitagawa, for the respondents, Rick Brown and R.T.
          Brown Trucking Ltd.



Heard:
January 27, 2011



On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice, dated July 7,
          2010.



ENDORSEMENT



[1]

We agree with the appeal judge that the Master erred in
    finding that the evidence filed on behalf of the plaintiff raised an issue of
    fact or credibility on the discoverability issue that would merit consideration
    at a summary judgment motion or a trial.

[2]

The oil spill that forms the basis of this action took
    place on February 23, 2004.  The action
    was commenced February 22, 2006.  The triggering
    event in terms of the discovery of a potential claim against the proposed
    defendants was the delivery, on August 9, 2006, of the statement of defence of
    the defendant, Ultramar Limited, which, in clear terms indicated the
    involvement of an independent contractor that actually delivered the fuel.

[3]

Counsel for the plaintiff failed to act on this
    information until eight months later at the discovery of a representative of
    Ultramar, when she asked questions about the truck driver and the independent
    contractor. Only the name of an independent contractor was provided  a name
    that turned out to be erroneous. The undertakings given on this discovery, several
    of which related to the independent contractor and the truck driver, remained
    outstanding until April 30, 2009.  The
    motion to add the truck driver and independent contractor was brought November
    13, 2009.

[4]

On this record, in
    the two years following the triggering event, the only step the plaintiff took
    to pursue the possibility of a potential claim against the proposed defendants
    was to question the representative of Ultramar on discovery about the truck
    driver and independent contractor.

[5]

While the threshold on a motion to add a party is low,
    it was not open to the Master on the available evidence to find that the
    plaintiff had provided a reasonable explanation as to why the proposed
    defendants were not identifiable and therefore not named as parties prior to
    the expiry of the limitation period under s. 4 of the
Limitations Act, 2002.

[6]

As a result, the appeal judge did not err in setting
    aside the Masters order.

[7]

However, it is unclear why the appeal judge ordered
    that the costs awarded by the Master be paid, resulting in a net costs award of
    $500 payable by the proposed defendants to the plaintiff. Costs should have
    reflected the proposed defendants success on the issue.

[8]

As a result, the appeal is dismissed except as it
    relates to costs. The appeal judges order is varied to make the costs on the
    motion before the Master payable by the plaintiff to the proposed defendants,
    fixed in the amount of $5,500.

[9]

Costs of this appeal are payable to the respondents,
    fixed in the amount of $2,500 all-inclusive.

R.
    Armstrong J.A.

G.
    J. Epstein J.A.


A. Karakatsanis J.A


