When it comes to claims brought by family members pursuant to s. 61 of the Family Law Act, RSO 1990, c. F.3. (“FLA”), the latest word from an Ontario court indicates that the two year limitation period applies to those claims as separate causes of action. In Malik v. Nikbakht, 2019 ONSC 3118, the defendant appealed a Master’s order that permitted the plaintiff to amend the statement of claim to add a claim pursuant to s. 61 of the FLA after the expiry of the limitation period. Section 61 allows family members of a party injured or killed by the fault or neglect of another to recover pecuniary losses that flow from a family member’s death or injury.
In a recent unreported decision in Cooper v. City of Toronto, (9 April 2019), Toronto CV-13-495260 (Ont. SCJ) the Master rejected the plaintiff’s attempt to add Toronto Hydro as a third party to the action, five years after it knew or ought to have known about the claim. This decision highlights the well-known principle that a plaintiff is required to act with due diligence in determining if she has a claim, and a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate.
The incident occurred on December 31, 2011, when the plaintiff allegedly walked into a light pole on a city sidewalk in Toronto.
In negligence-based actions, defendants routinely issue third party claims for contribution and indemnity to reduce their liability exposure. As a result, the plaintiff can commence a claim believing certain defendants to have caused the plaintiff’s loss, but, after successive third party claims, learn that several other persons might have contributed to the loss. To increase the prospect of recovery, the plaintiff often moves to add these third parties as defendants, long-after the impugned act or omission took place.
In these circumstances, third parties should consider whether to oppose a motion to be added as a defendant pursuant to section 21(1) of the Limitations Act, 2002:
21 (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
In Prescott & Russell (United Counties) v David S. Laflamme, 2018 ONCA 495, the Court of Appeal for Ontario held that interlocutory motions requiring a finding in respect of a limitations issue does not, in fact, mean that the motions judge has made a final and binding finding on that limitations issue. Accordingly, the issue is still to be determined at trial.
The plaintiff brought a motion under Rule 5.04(2) for an order adding WSP Canada Inc. (“WSP”) as a defendant in an ongoing action. WSP argued that the 2-year limitation period had already expired. The motions judge held that the plaintiff could add WSP as a defendant to the action because of the discoverability principle.
Cote v Ivanhoe Cambridge I Inc., 2018 ONSC 5588 is a slip and fall case (in a mall) in which the plaintiff sought to add a new defendant, Paragon Protection Ltd., the company responsible for security at the mall. The incident occurred on June 12, 2015. The issue was whether the plaintiff’s claim against Paragon ought to have been discovered with due diligence prior to June 26, 2017, the date when the plaintiff was advised of Paragon’s responsibility for mall safety by the defendants.
The court noted that a motion under r. 5.04(2) of the Rules of Civil Procedure is discretionary. The court reviewed the applicable test to add a defendant after the expiry of a limitation period: a motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation; if there is such issue, the defendant should be added with leave to plead a limitations defence; if the issue is due diligence rather than actual knowledge, this is more likely to involve issues of credibility requiring a trial or summary judgment motion.
In Mancinelli v. Royal Bank of Canada,2018 ONCA 544, the plaintiffs brought a motion under rule 5.04(2) and rule 26.01 to add the defendants to the action. The defendants opposed the motion on the basis that the claim against them was barred by the Limitations Act, 2002. The motion judge dismissed the motion on the basis that the plaintiff adduced insufficient evidence to establish that they behaved as reasonable persons in the same or similar circumstances to identify the proposed defendants as conspirators and the evidence rather establishes that their identity could have been established with reasonable diligence before the expiry of the limitation period.
In Abrahamovitz v. Berens, 2018 ONCA 252, the Court of Appeal for Ontario allowed a motion that added a party to an action where the limitation period under s.4 of the Limitations Act, 2002 had expired.
The plaintiffs were shareholders in a holding company that owned a commercial real estate property. In September 2011, they began an action to recover a portion of the property’s revenue held back by one of the defendants, Megapro Property Management Ltd. Megapro held back these revenues due to a claim by the estate of a deceased former property manager. The estate was initially not a party to the action.