We overlooked this 2016 Court of Appeal decision in Arcari v. Dawson that considers adding a party to a proceeding after the presumptive expiry of the limitation period.
The Court described the relevant principles:
[10] When a plaintiff’s 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 plaintiff’s motion (Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).
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[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 appellant’s submission that merely retaining an engineer was sufficient to discharge the due diligence responsibility and postpone the limitation period indefinitely.
Two facts are noteworthy:
- The Court left open the possibility that it will revisit the rule in favour of committing the issue of discoverability to 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 (CanLII), [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.
2. The plaintiff claimed based on injuries resulting from being hit by a car. The plaintiff retained an accident reconstruction expert to produce a report about the cause of the accident. This engineer found that the driver’s speed was the cause. The plaintiff subsequently learned that the design of the crosswalk where she was hit may also have contributed to her accident and sought to sue the parties who owned it. The Court rejected the plaintiff’s submission that merely retaining an engineer to determine the cause was sufficient to discharge the due diligence responsibility. Arguably, this heightens the responsibility.
