On Dec. 14, 2015, Justice JF Diamond of the Ontario Superior Court of Justice released a decision in Attayee v Pickering.1 The decision was released without much fanfare or commentary, but it has important implications for plaintiff’s counsel seeking to add defendants late in the day.

Background

On December 8, 2012, the plaintiff was involved in a serious motor vehicle accident on Valley Farm Road in the City of Pickering, Ontario. The plaintiff suffered various fractures and other serious injuries. Within weeks the plaintiff retained counsel.  Plaintiff’s counsel only ordered a copy of the Motor Vehicle Accident Report some 17 months after the accident.  That Accident Report stated that "the collision location was slick with what appeared to be some type of spilled liquid." On the eve of expiry of the 2 year limitation date, on December 5, 2014, the plaintiff commenced the “First Action” against the Regional Municipality of Durham and the driver of the other vehicle involved in the accident. Within a few weeks Durham advised counsel for the plaintiff that the subject road was under the jurisdiction of Pickering. Four months later, on April 8, 2015, the plaintiff commenced the subject proceeding, the “Second Action”, against the City of Pickering for the same relief sought in the First Action.

The defendant City of Pickering brought a summary judgment motion dismissing the Second Action, claiming the action was statute barred by the Limitations Act2 or in the alternative was an abuse of process.  In response the plaintiff did its best to claim it did not discover the claim against Pickering until it received the Accident Report. However, the Court was dissatisfied with the delay on the part of counsel for the plaintiff and the means by which he sought to involve the newly discovered defendant.

The Court Grants Summary Judgment

In granting summary judgment the court relied on the fact that the claim against Pickering was discoverable on the date of the accident. A claim is discovered on the earlier of the day that a reasonable person first ‘ought’ to have known that the loss had occurred and was contributed to by an act or omission of a person, and that a proceeding would be an appropriate means to seek to remedy it.

Section 5(2) of the Limitations Act has consistently been interpreted to mean that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved.  Rebutting the presumption requires the plaintiff to show that he or she has diligently pursued a claim: “No limitation period will be tolled while a plaintiff sits idle and takes no steps to investigate any of the matters referred to in section 5(1)(a) of the Act.”3

The court was not satisfied in this case that the plaintiff had acted diligently.  In particular, the court was not impressed that counsel for the plaintiff had waited 2 months to request medical records, delayed 17 months to request the Accident Report, and waited a further 5 months to issue the First Claim.  Counsel then delayed an additional 4 months to issue the Second Action once notified that Pickering was the proper defendant. Justice Diamond placed emphasis on the fact that it was or should have been clear from the outset that the accident took place in the City of Pickering.

Abuse of Process

Pickering also sought a dismissal under Rule 23.01(3)(d) of the Rules of Civil Procedure and argued that the Second Action was an abuse of process. The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute.4

Multiple legal proceedings are to be avoided, as provided by the Courts of Justice Act.5 Further, Rule 5.02(2) favours joinder of multiple defendants in the same proceeding when the claims made against them arise from the same transaction or occurrence.6  Rule 26.01 further obliges the court 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.

The proper process for the plaintiff in this case to take was under Rule 26.02(c), obtaining leave of the court to add a non-consenting party to the proceeding after pleadings have closed. Citing the case of Mayes v. Allen-Vanguard Technologies the court took issue with the commencement of the new overlapping action7:

By starting the New Action instead of moving to amend their pleadings in their existing actions to claim "enhanced relief" against the Added Defendants, the plaintiffs circumvented the court's jurisdiction to:

  1. assess whether the defendants would be prejudiced by an amendment and to determine whether that prejudice can be compensated for by costs;
  2. to impose costs in favour of the defendants for granting the amendment; and
  3. to impose other terms that are just.

By commencing the new action, the plaintiff shifts the burden to the new defendant who must then take proactive steps to strike a new action. The burden should be on the plaintiff to convince the court why leave to amend should be granted.

Conclusions

There are a number of lessons in this decision for all lawyers. An initial investigation and request for basic documents relating to an incident should not be delayed. Plaintiffs may find themselves out of time to add additional defendants if they fail to do so. Delay may also cause problems for Defence counsel if they need to add additional parties by way of third party claims. Further, if a plaintiff needs to add a new defendant to an ongoing action, especially if the relief requested is the same against the original and new defendants, they should seriously consider seeking court leave to amend the existing claim rather than simply commencing a new action.