Master reiterates the importance of due diligence in the context of discoverability

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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. The plaintiff issued her statement of claim against the City on December 19, 2013. On July 4, 2014, the plaintiff printed an article published in the Toronto Star, which stated that “after selling its street lights to Toronto Hydro in 2005 to raise $60 million, the City of Toronto will pay more than $420 million over the next 30 years to rent the lights back, the contract agreement shows.” Despite having this article in hand as early as July 2014, the plaintiff argued that she first knew of the claim against Toronto Hydro when the City produced the asset purchase agreement dated 2005 as part of its Affidavit of Documents, which was served on her in May 2017. The plaintiff therefore argued that her claim against Toronto Hydro began to run from May 2017.

The Master found that the plaintiff failed to provide any reasonable explanation on proper evidence as to why, with reasonable due diligence, the information was not obtainable sooner. In particular, the plaintiff failed to explain why she did not take any steps after the Toronto Star article was printed in 2014 to add Toronto Hydro as a defendant. As a result, there was no triable issue and the motion to add Toronto Hydro as a defendant was dismissed.

Congratulations to my colleague, Ara Basmadjian, who successfully resisted the motion on behalf of Toronto Hydro.