The decision in Laurent-Hippolyte v. Blasse et al. is a reminder that on a motion to add a party after the presumptive expiry of the limitation period, the plaintiff needs to file evidence of due diligence:
[21] TWD argues that the motion must be dismissed because the Plaintiff nor any other affiant has provided any evidence as to discoverability during the relevant time period – that being the two-year period after the date of loss. TWD asserts that the absence of any such evidence is fatal to the motion.
[22] I agree with TWD. There is absolutely no evidence in this case as to what occurred between the date of loss and the time that the Statement of Claim was issued. While I accept that Plaintiffs should not be required to send pro forma letters and that the expectations placed on unrepresented Plaintiffs to identify tortfeasors should be low, this does not mean that a Plaintiff can succeed on these motions with absolutely no evidence on the issue.
[23] At the very least the Plaintiff, or other affiant, could have explained what was happening in the relevant two-year period and/or describe the abilities that the Plaintiff did or did not have in pursuing the Claim. Without any evidence to this effect, a Court cannot determine, as stated in section 5(1)(b), “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).” I was provided with no evidence on the Plaintiff’s abilities or circumstances. I have no evidence of diligence or an explanation for any lack of diligence. When was counsel retained? What steps did counsel take if counsel was retained? If no steps were taken, why not?
