Ontario: evidentiary considerations in a motion to add after the limitation period’s presumptive expiry

Ali v. City of Toronto is a good example of an issue with the law of adding a party to a proceeding after the presumptive expiry of the limitation period.

The Court held that there are circumstances where a plaintiff has a positive obligation to make inquiries or risk the court finding that the failure to do shows a lack of due diligence:

[22]              More recent case law has clarified that the principles in Madrid do not release plaintiffs or their counsel from their obligations to make any inquiries at all (Cote v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588 at para. 33). There are circumstances where a plaintiff is expected to make inquiries or risk that the court may find that their failure to do so constitutes a lack of due diligence causing their motion to fail (Cote at paras 33 and 35Laurent-Hippolyte v. Blasse, 2018 ONSC 940 at paras. 26-27).  In recent cases, the courts have consistently held that requiring plaintiffs injured in slip and falls and other accidents involving snow and ice to inquire into the possible existence of winter maintenance contractors does not constitute a “pro forma” letter as described in MadridFurther, a plaintiff’s failure to make these inquiries has been consistently found to constitute a lack of reasonable diligence ultimately leading to the denial of leave to amend.

This reasoning is not uncommon, as the citations indicate, but I think it’s fundamentally flawed.  Essentially, the reasoning is this: a reasonable person would have asked a question the plaintiff did not, and therefore a reasonable person would have discovered the claim earlier than the plaintiff.

The problem is that it’s not the question which matters, but the answer—specifically, whether the answer would have provided the plaintiff with knowledge of the discovery matters.  Had the reasonable person asked the question on some earlier date would it have resulted in discovery of the claim? Without evidence of the date and content of the answer had the question been asked, the court can’t make the findings necessary to determine discovery, and whether asking the question would have resulted in discovery is purely speculative.  And so the court risks finding a proceeding statute-barred for want of due diligence per se, not because a reasonable person would have asked the question and, having done so, discovered the claim earlier than the plaintiff discovered it.

The court made this point explicitly in Ledoux v. Lee:

40.            Uber also argued that Mr. Ledoux’s lawyer should have served Co-operators with a formal notice of his claim against Mr. Lee after getting the police report. Mr. Giugaru contended that this is a standard practice because it allows a plaintiff to claim pre-judgement interest from the date of the notice.  Had Mr. Ledoux’s counsel put Co-Operators on formal notice of a potential claim, he argued, the insurer might have advised the plaintiff of the coverage issue and disclosed Mr. Lee’s activity as an Uber driver.

41.            This argument is speculative.  I could not conclude, on the evidence before me, that it is standard practice for plaintiff’s counsel in MVA claims to formally notify the defendant motorist’s insurer of a potential claim. Even if I had been able to, I could not infer that a formal notice letter to Co-Operators would have yielded information about its position on coverage.  Mr. Ledoux’s lawyers were in communication with Co-Operators from September 2017 forward, providing it with a copy of the police report and Mr. Ledoux’s hospital record.  There is no evidence that, in the course of this correspondence, the adjuster ever so much as hinted that it might deny coverage or disclosed that Mr. Lee was participating in the gig economy, even though it notified the insured of its denial of coverage on this basis two weeks after the accident.

The interesting complication is that when moving to add a party after the presumptive expiry of the limitation period, the plaintiff needs to show enough due diligence to found a prima facie discovery argument.  The courts consistently find that this can require sending letters of enquiry, a point the court made explicitly:

[30]              I also reject the Plaintiff’s argument that there is no guarantee that she would have received a response from the City had she made these inquires. The relevant issue is the absence of evidence demonstrating effort and diligence on the part of the Plaintiff, not speculation as to the likelihood of a response. As the courts have held in previous cases, had the Plaintiff asked and not received a response, the efforts would have been evidence of diligence.

I think the plaintiff’s argument was correct for the purposes of a s. 5 analysis: absent any evidence as to the response to the inquiry, whether it would have resulted in discovery is speculative. But in the context of a motion where the plaintiff had an obligation to show evidence of due diligence, the failure to make the inquiry was fatal.  From a limitations perspective, the plaintiff probably would have been better suing the City in a new action where its evidentiary argument might have prevailed.

The takeaway is twofold: first, personal injury lawyers should always send pro forma letters of this kind to avoid these arguments; and second, this is an area of limitations law that could use a little rationalising. It’s probably my least favourite corner of the limitations scheme, but plainly I’m due to give it more consideration.

 

Ontario: unusual misnomer motions

Here’s an interesting question: can you add a defendant to a proceeding with leave to plead a limitations defence and then move to correct the misnaming of that defendant as a John Doe (and avoid the limitations defence)?  Yes, held the court in Janet Campagiorni et al. v. Lyne Legare et al.

The plaintiffs obtained leave to add a defendant to their proceeding with leave to the defendant to plead a limitations defence.  The added defendant moved for judgment on the limitations defence; in response, the plaintiffs moved to correct the misnaming of the defendant as John Doe (that is, they had originally named John Doe as a defendant to the proceeding, and took the position that John Doe was actually the defendant they had added).  The defendant opposed the misnomer motion as an abuse of process: it was an “improper attack” on the court’s order adding the defendant. The court rejected the argument:

[43]      The plaintiff brings a cross motion for misnomer on the basis that the pleadings be corrected to accurately reflect the correct name of a party identified but misnamed in the litigation from the outset. Dr. Bednar argues this motion should be dismissed as an abuse of process and is nothing more than an improper attack on the previous order of this court to add Dr. Bednar as a defendant on the condition that a limitation defence was still a live issue at a later date.

[44]      The courts have made it abundantly clear that litigants may not have endless opportunities to seek the same remedy using different legal arguments in front of different triers of fact. See Alberta v. Pocklington Foods Inc., 1995 ABCA 111, at para. 8.

[45]      I am of the view this is a different situation even though the issue may become moot depending on the decision of the trial judge on the issue of discoverability regarding the appropriate limitation period.

[46]      I prefer the reasoning in Loy-English v. Fournier2018 ONSC 6212. In that medical malpractice case John Doe was in the claim as a defendant for various allegations of negligence. When the names of the doctors were eventually discovered the presumptive limitation period had expired, and a summary judgment motion was brought. The court concluded that a misnomer motion could have been brought at the same time as the summary judgment motion, putting all issues and all remedies clearly before the court. The court found that the suggestion that the failure to bring a misnomer motion was an abuse of process, was not valid and stated at para. 14, “the plaintiff is entitled to take all reasonable steps to preserve her rights against the expiry of a limitation period”.
[47]      The court further added “taking various parallel prophylactic steps to avoid the application of the Limitations Act was not an abuse of process or in any event was not worthy of an extreme sanction such as a stay of proceedings.” See: Loy-English v. The Ottawa Hospital et. al., 2019 ONSC 6075, at para. 28. Further the court stated at para. 14, “Even if the manner in which this litigation has been pursued is characterized as abusive, the response should be proportionate and does not follow that loss of the right to litigate is a proportionate remedy.” I agree and any sanction required can ultimately be dealt with by way of costs.
[48]      I further conclude that the issue of misnomer, if it becomes relevant, can best be dealt with by the trial judge hearing all of the evidence on the limitation defence and such other evidence as counsel feel is appropriate on the misnomer issue.

Ontario: don’t rely on a lawyer’s affidavit to establish discovery

The Superior Court decision in 1365 California Ltd. v. Moss Property Management Inc. is an appeal from a master’s decision granting leave to add a proposed defendant.  It provides two important reminders: a lawyer’s affidavit is a lousy way of rebutting presumptive discovery and sometimes lawyers get cross-examined on their affidavits.

The court held that the master’s determination of when the plaintiffs subjectively discovered their claim was in error.  The plaintiffs had not filed any evidence of when they discovered their claims.  They had filed only a lawyer’s affidavit that did say when discovery occurred.  On cross-examination by the proposed defendants, the lawyer admitted that he didn’t know what the plaintiffs knew, and that he hadn’t spoken with them.  Accordingly, for want of evidence the plaintiffs couldn’t rebut the presumption that subjective discovery occurred on the date of the act or omission giving rise to the claim .

These are the material paragraphs:

[19]           With respect, the Master’s finding that the Respondents did not have actual knowledge of the claims against the Proposed Defendants until they received the Second Report is not supported by the evidence.

 [20]           In support of their motion for leave to amend, the Respondents relied upon the affidavit of Mark Russell (the “Russell Affidavit”), an associate at the firm representing the Respondents in this litigation but who is not involved in the file.  The Russell Affidavit gives a chronology of the steps in the proceeding, as described above.  It does not state when the Respondents had actual knowledge of the facts underlying the New Claims against the Proposed Defendants.  Nor does the Russell Affidavit state that the Respondents did not know that they had claims against the Proposed Defendants until the Second Report was received, or at any time before December 16, 2016.  The affidavit is silent as to what the Respondents knew and when they knew it.
 [21]           On cross-examination, Mr. Russell admitted that he did not know what the Respondents knew, and that he did not know whether they knew more or less than he did.  Mr. Russell stated that he had not spoken to the Respondents and repeatedly stated that he did not have carriage of the file.
 [22]           Since the Respondents bear the burden of showing that they lacked the requisite knowledge as of two years before the motion was brought, the “critical issue” is “what the plaintiff or its agents (chiefly its lawyers) knew or ought to have known about the facts underlying the [proposed claim.]”  Sealed Air, at para. 18.

[24]           In determining whether the Respondents rebutted the statutory presumption, the issue was not, as the Master stated, whether the Respondents had actual knowledge as of the date of the First Report, but whether they had actual knowledge at any time before December 16, 2016.  At no time did the Respondents state that they did not know facts underlying the New Claims when the acts took place.  The Respondents adduced no evidence as to when they knew those facts.  The lack of any “suggestion” that the Respondents knew of the claims when they occurred was not sufficient to rebut the presumption.  In the absence of any evidence from the Respondents as to when they had actual knowledge, the Master committed a palpable and overriding error in finding that they had no knowledge until they received the Second Report.

[25]           Without any evidence on the Respondents’ knowledge, it could not be inferred that the Respondents did not have actual knowledge until they received the Second Report.  A chronology of steps taken in the litigation, without more, is insufficient to draw any inference as to the state of the Respondents’ knowledge in this case.
[26]           The Respondents’ failure to rebut the statutory presumption of knowledge under s. 5(2), means that, pursuant to s. 5(1)(a), the claim was discoverable when the act or omission took place.  The two-year limitation period would run from that date.  The allegations in the Statement of Claim end in November 2011.  Other than to give the chronology leading up to the delivery of the Second Report, the Amended Statement of Claim does not allege specific acts or dates in relation to the Proposed Defendants.  Accordingly, the limitation period expired in November 2013.  Pursuant to s. 21(1) of the Limitations Act, 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.

Ontario: special circumstances apply to construction lien actions

In Pryers Construction Ltd. v. MVMB Holdings Inc., the Divisional Court holds that the special circumstances doctrine is not available to a plaintiff in an action to enforce a construction lien.

[14]           In the present case, Riverside was an “owner” within the meaning of s. 1 of the CLA. As a result, Pryers was entitled to a lien on Riverside’s interest in the premises. As that interest was leasehold, Pryers’ ultimate remedy under the Act would have been a sale of the remaining term of the lease, if any. However, Pryers failed to preserve its lien against Riverside’s interest, and as a result, it expired in July 2016.

 [15]           The trial judge held, and Pryers argues, that the “special circumstances” doctrine was available, that such circumstances existed, and that as a result, Pryers was entitled to enforce its lien against Riverside as an “owner” of the property. This was an error of law.
 [16]           Where the “special circumstances” doctrine is available, the court has discretion to add new parties or new causes of action, following the expiry of a limitation period. With respect to actions governed by the LA2002, this doctrine was abolished by s. 21 of that statute: Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 301 (C.A.), at paras. 16 and 25. However, with respect to actions where the applicable limitation period is prescribed by a statute other than the LA2002, the “special circumstances” doctrine may remain available: Bikur Cholim Jewish Volunteer Services v. Langston (2009), 2009 ONCA 196 (CanLII)94 O.R. (3d) 401 (C.A.), at para. 51.
 [17]           Relying upon Bikur Cholim, Pryers argues that the “special circumstances” doctrine is available to a plaintiff in a construction lien action, and that the trial judge was therefore correct in allowing Riverside to be added as a party defendant, for the purpose of enforcing a lien against it as an “owner”, notwithstanding that the lien was neither preserved nor perfected. I disagree for the following reasons.
 [18]           It does not follow from the decision in Bikur Cholim that all limitation or other time periods, contained in statutes other than the LA2002, may be extended based upon the “special circumstances” doctrine. In that case, the court referred to its decision in Swain Estate v. Lake of the Woods District Hospital (1992), 1992 CanLII 7601 (ON CA)9 O.R. (3d) 74 (C.A.) where the doctrine was held to apply to an action governed by s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23, and went on to say that the doctrine survived in relation to such actions, despite the fact that it had been abolished for cases governed by the LA2002. However, the doctrine has never been held to apply in an action to enforce a construction lien.
 [19]           In Delview Construction Ltd. v. Meringolo (2004), 2004 CanLII 11188 (ON CA)71 O.R. (3d) 1 (C.A.), at para. 11, the court said the following:
 [T]he courts have noted that unlike limitation periods where there is a discretion to extend under the Basarsky v. Quinlan, 1971 CanLII 5 (SCC)[1972] S.C.R. 380 line of cases, the time limits set out in the CLA are prescribed by statute and “[leave] no room for judicial discretion”.

Basarsky is one of the sources of the “special circumstances” doctrine.

[20]           In K.H. Custom Homes Ltd. v. Smiley, 2015 ONSC 6037 (Div. Ct.), at paras. 4f, this court said the following about the statutory deadlines in the CLA:

 These requirements are statutory. They are mandatory. The court has no discretion to relieve from them. The language of the CLA is clear on this point, as is consistent appellate authority.

This conclusion is consistent with the scheme of the CLA. The first two requirements [time limits for preservation and perfection of liens] are essential to the timely flow of funds on construction sites: persons advancing money to pay for construction may rely upon the state of title before making an advance. This reliance would be compromised if late liens could be placed on title as a result of the court’s exercise of discretion after-the-fact. [Footnotes omitted.]

[21]           The CLA does not contain a limitation period applicable to claims for breach of contract joined with actions to enforce claims for lien, and there is no conflict between the provisions of the CLA and the LA2002 in relation to such claims. Accordingly, the two-year limitation period under the LA2002 applies to contractual claims joined with lien claims: see LA2002, s. 19. In the present case, that limitation period had expired in March of 2018, approximately eight months before the motion to add Riverside was made.

Ontario: adding a plaintiff to a proceeding after the limitation period’s presumptive expiry

 

The Superior Court decision in Scalabrini v. Khan holds that the test for adding a plaintiff to a proceeding after the presumptive expiry of the limitation period is the same as adding a defendant:

[8]               The respondents argued that the test in Morrison is not applicable to a case such as this one where it is a plaintiff rather than defendant for whom leave is sought to be added. I see no basis for applying a different limitations test for leave to add a plaintiff than for leave to add a defendant. However, I do see a difference in the required findings and proof that would be needed to support a decision to deny leave to add a plaintiff (or defendant) on limitation grounds than would be needed to grant leave in the face of a limitations argument. If the master in this case had decided that Cinzia’s claims were statute barred and could not proceed, the Court of Appeal’s directive in Morrison that there be a finding that her claims had been discovered more than two years before the motion was brought makes sense because that decision would put an end to her claims.

Ontario: some pedantry in response to the Court of Appeal decision in Rumsam

The Court of Appeal’s decision in Rumsam v. Pakes overturned the motion judge’s order granting the plaintiff leave to add a doctor as a defendant to the proceeding.  The doctor had opposed the motion on the basis of an expired limitation period.  The motion judge found the proceeding timely.

The Court’s conclusion seems right to me, but it contains some statements of law that are problematic and require comment.

First, there is this description of s. 5(1)(b):

[30]      As of August 29, 2013, Ms. Rumsam was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(b) [sic] of the Limitations Act that a “cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence” (emphasis added): Lawless, at para. 22.

This is not an accurate description of s. 5(1)(b).  That section provides that discovery occurs “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)”.

What paragraph 30 describes is common law discovery.  Discovery as codified in s. 5(1)(b) differs from common law discovery in two material ways.  First, the knowledge required by s. 5(1)(b) isn’t the material facts of a cause of action, but the four discovery matters in s. 5(1)(a); while these may accord generally with some causes of action, they don’t accord with many others (like breach of contract, which doesn’t have “injury, loss or damage” as a material fact.  Second, the knowledge is modified-objective, not purely objective; it’s the knowledge of a reasonable person with the abilities and in the circumstances of the plaintiff.

It’s unfortunate that the Court of Appeal continues to treat common law discovery as the same as statutory discovery.  Relatively recent Court of Appeal jurisprudence distinguishing the “claim” form the “cause of action” has been promising (see Apotex and Gillham Bay), but apparently without the impact one might have hoped for.

Then there is this summary of conclusions:

[33] In conclusion:

1. A claim must be brought within two years of a claim being “discovered”.

2. A claim is discovered when the claimant first knew the injury occurred, that it was caused by an act or omission, that the act or omission was caused by the person against whom the claim is made, and that there was loss.

3. The injury was sustained on July 11, 2007, so normally the limitation period would have expired on July 11, 2009.

4. Given that Ms. Rumsam did not turn 18 until June 4, 2010, the presumptive limitation period did not begin to run until that date.

5. The limitation period would have expired on June 4, 2012, but for the discoverability principle.

6. By August 29, 2013 at the latest, Ms. Rumsam knew all of the material facts except the name of the “second clinic physician” in question.

7. By August 29, 2013 at the latest, she was required to exercise reasonable diligence to get the name within the two-year period as she knew she likely had a claim against this person for her injuries, and August 29, 2013 was “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” as set out in s. 5(1)(b) of the Limitations Act.

8. The onus to prove reasonable diligence is on Ms. Rumsam.

9. She failed to exercise reasonable diligence as no steps were taken for at least a year.

10. As such, as the court held in Safai, there is no basis to extend the limitation period for more than two years as, from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a position to ascertain the name by reasonable diligence.

Let’s go through the issues.

  1. A claim must be brought before the expiry of the limitation period, not within two years of discovery. Discovery causes the limitation period to commence, but it’s not determinative of its expiry.  There are multiple circumstances in which the limitation period will stop running—for a example a tolling agreement—so that it will expire more than two years from its commencement.
  2. Discovery does not require knowledge that an injury has occurred and that there was a loss, because for limitations purposes in injury and loss are effectively the same thing. There Limitations Act always refers to “injury, loss or damage”; “injury” never has a separate function from “loss” (which prompts the question why the act uses this language–I suspect it was intended by the drafters to signal that the act applies to all causes of action regardless of whether they require damage to be actionable).  In any event, all that discovery requires with respect to damage is knowledge that “injury, loss or damage” has occurred, so knowledge of injury or loss alone will suffice.
  3. There is no presumptive limitation period. There is basic limitation period in s. 4 that commences presumptively on the date of the act or omission that gives rise to the claim pursuant to s. 5(2). This is because of the “discoverability principle”, not despite it.  Section 5(2) creates a presumption that discovery occurs on the date of the act or omission, which the plaintiff can rebut.  The s. 5 discovery provisions always determine the commencement of the basic limitation period.

 

Ontario: special circumstances applies to Construction Act limitation periods

Pryers Construction LTD. v. MVMB is a reminder that parties in a lien action may be added after the 90 day limitation period in the Construction Act at any stage of the proceeding if there are special circumstances.

Update: this was overturned by the Divisional Court.

Ontario: limitations issues that shouldn’t need deciding

There is a category of limitations jurisprudence that decides issues which shouldn’t need deciding. Three decisions recently expanded it.

Having commenced a proceeding by notice of action within the limitation period, can a plaintiff add defendants to the proceeding outside the limitation period by naming them as defendant in the statement of claim? No, obviously, the court held in Bercovici v. Attorney General of Canada:

[13]           The plaintiff’s action was commenced by notice of action.  Under rules 14.03(1)(a) and (2), where a plaintiff commences an action by notice of action, the notice of action, and not the statement of claim, is the originating process.  Under rule 14.06(1), the originating process shall contain “a title of the proceeding setting out the names of all the parties”.  Therefore, where the originating process is a notice of action, it is the title of proceeding in the notice of action that identifies the parties to the action.

[14]           The plaintiff relies on rule 14.03(2), which provides that a notice of action contain “a short statement of the nature of the claim” [emphasis added] and rule 14.03(5), which provides that “in an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action”.  The plaintiff argues that these two rules read together allow the plaintiff to add to the statement of claim both claims and parties not included in the notice of action.  Specifically, the plaintiff submits that where the notice of action referred to the conduct of “responsible officials”, it was open to her to name those officials as defendants in the statement of claim as an extension of the claim in the notice of action.

[15]           Rules 14.03(1) and (2) and 14.03(5) must be interpreted in the context of the rules as a whole, which include rule 5.04(2).

[16]           Rules 14.03(1) and 14.06(1) read together provide that the parties to an action, which include the defendants, be named in the originating process, which in this case was the notice of action.  Rule 5.04(2) provides the means by which parties may be added to an action: “[T]he court may by order add, delete or substitute a party . . .” [emphasis added].  However, there is no provision in rule 14.03 that allows parties to be added to a proceeding commenced by notice of action simply by including them in the statement of claim.  In the face of the specific provision in rule 5.04(2) requiring a court order to add parties, the fact that rule 14.03(5) allows a plaintiff who has issued a notice of action to “alter or extend the claim” when filing her statement of claim does not enable that plaintiff to add new defendants simply by including them in the statement of claim.

[17]           Rule 14.03(2) enables a plaintiff to comply with a limitation period by commencing an action by notice of action “where there is insufficient time to prepare a statement of claim”.  The notice of action is therefore intended to be a document that can be prepared and issued quickly before the limitation period expires.  However, in order to defeat the operation of the limitation period, the plaintiff must still name all defendants within the limitation period, subject to the considerations discussed below.

[18]           If a plaintiff wishes to add defendants to an action commenced by notice of action, she must, as concluded above, do so by way of a motion under rule 5.04(2).  The registrar was therefore correct in refusing to accept for filing the statement of claim naming five new defendants.

Can you object to a request for documents on the basis that they are dated prior to the limitation period? No. A thousand times no! The court in Nanton v. Julien had no trouble dismissing this bizarre argument:

The defendants object to a number of requests for documents on the basis of the Limitations Act.  Limitations apply to bar claims, not requests for documentary production.  So long as the claim is properly pleaded and has not been dismissed by reason of a limitations defence, the parties are obliged to produce relevant documents, even if those documents date back to a time beyond the limitations period.

Does the limitation period for a claim arising from an auto accident commence on the date of the accident if the plaintiff can’t reasonably know the identity of the auto’s owner at that time? Also no, as the court in Miano v. Campos  held (while sighing, I imagine):

[30]         The Defendant’s position that the limitation period for a claim for damages arising from an automobile accident commences to run on the date of the accident even if the plaintiff does not know and cannot reasonably discover the identity of the owner and operator of the automobile on the date of the accident is misguided. It ignores the plain language of s. 5(1)(a)(iii) and 5(1)(b) and renders those provisions meaningless.   Given these provisions, it is unnecessary to commence a claim against “Jane Doe” in order to “preserve” a limitation period, as the limitation period does not commence to run until the identity of the owner or operator, as the case may be, is known or ought to have been known.  Such an approach adds nothing of value, clutters the record and, if Jane Doe was later identified, would then necessitate an unnecessary step in this proceeding to remove Jane Doe as a defendant and add the identified defendant.

Ontario: Court of Appeal on adding a party after the presumptive expiry of the limitation period

The Court of Appeal decision in Morrison v. Barzo sets out in detail the test for adding a party to a proceeding after the presumptive expiry of the limitation period.  It’s now the leading decision on the subject.

To obtain leave, the plaintiff must first rebut the presumption in s. 5(2) of the Limitations Act by leading evidence as to the date of subjective discovery.  The plaintiff doesn’t need to show evidence of due diligence; due diligence is immaterial to subjective discovery:

[31]      The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court’s finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.

Second, the plaintiff must establish a prima facie discovery argument by leading evidence as to why the claim couldn’t have been discovered through reasonable diligence:

[32]      Second, the plaintiff must offer a “reasonable explanation on proper evidence” as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff’s explanation should be given a “generous reading”, and considered in the context of the claim: Mancinelli, at paras. 20 and 24.

This is not a due diligence analysis.  While a plaintiff’s due diligence is relevant to the finding under s. 5(1)(b), the absence of due diligence is a not a separate basis for dismissing a claim as statute-barred.  This is so whether the expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant.

When a claimant ought reasonably to have discovered a claim requires an evidentiary foundation.  The court can’t say merely that the claim was discoverable before the expiry of the limitation period without explaining why.  It may be that the court can only determine when discovery ought to have occurred at a later stage of the proceeding.  In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence:

[30]      Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable “before the expiry of the limitation period”, without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.

Conceptually, I recognise the distinction between the court assessing the plaintiff’s due diligence in investigating the claim against the proposed defendant, and the court assessing whether the plaintiff could through reasonable diligence have discovered the claim against that defendant.  However, in practice, I suspect this is a distinction without a difference.  In both cases, the plaintiff will lead evidence of the steps taken to investigate the claim—due diligence—and argue that she did what was reasonable to investigate the claim and still didn’t discover it.  The proposed defendant will lead evidence of some other step the plaintiff could have taken and argue that it was a reasonable step and would have led to discovery.  And so the adequacy of due diligence is always in issue.

The Court also make important points about the findings that are necessary in a limitations analysis.  The court must identify the claims in question, and then find when they were discovered.  This requires a specific finding of fact that answers the question asked by s. 5(1)(b):

[60]      Instead, the motion judge was required, after clearly defining the nature of the claims against the respondents on the evidence, and after finding no actual knowledge of the claims, to make a specific finding of fact as to when a reasonable person “with the abilities and in the circumstances” of the appellants “first ought to have known of the matters referred to in clause (a)”.

Ontario: The finality of motions to add defendants

The Court of Appeal in Prescott & Russell (United Counties) v. David S. Laflamme clarifies some interesting aspects of motions for to add a defendant after the presumptive expiry of the limitation period.

The motion judge held that the plaintiff could add the proposed defendant “as a party to the litigation since its actions to do so were within the limitation period” (presumably meaning that the plaintiff moved to add the proposed defendant within the limitation period).  Like me, you might think this was a finding of timeliness precluding a limitations defence.  Not so, held the Court of Appeal.  The Order was without any language declaring the timeliness of the claims against the proposed defendant, and, notwithstanding the foregoing, the reasons were apparently without any language suggesting that the motion judge made a final determination regarding the limitations defence.

Because the Order did not preclude a limitations defence, it was not a final determination of the proposed defendant’s rights and therefore interlocutory.

These are the relevant paragraphs:

[7]         The distinction between a final and interlocutory order for the purposes of determining the appropriate appellate forum is not always easy to make: see Salewski v. Lalonde2017 ONCA 515 (CanLII)Azzeh v. Legendre2017 ONCA 385 (CanLII).  In the present context, the order will be said to be final if it deprives WSP of a substantive defence.  If WSP can no longer rely on the Limitations Act defence, the order is final.  However, if WSP can raise the Limitations Act defence at trial, the order is not final. To determine whether the order is final or interlocutory, one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.

[8]         Looking first at the order itself, there is nothing in the language to suggest that any final determination was made on theLimitations Act issue.  The order, presumably drawn with the cooperation of counsel, makes no reference to the Limitations Act or any findings made in respect of that Act. The order simply allows the respondent to add WSP as a defendant.

[9]         The motion judge’s reasons contain no language suggesting that any finding made in respect of the application of the Limitations Act had application beyond the motion itself.  The motion judge did not purport to decide the issue for any purpose other than the determination of the motion to add WSP as a party.

[10]      The nature of the motion is also relevant to the nature of the order arising from the motion. Some motions tend to generate final orders. For example, orders made on r. 21 motions brought to determine a question of law, will generally apply to the litigation as a whole. Depending on the question of law decided, the order may well be final. Motions to add parties that are successful, however, do not as a rule generate findings that are binding in the rest of the litigation.

[11]      We also cannot accept the contention that because the motion judge was required to make a finding as to the application of the Limitations Act, her finding must be regarded as binding in the litigation and therefore final.  Section 21 of the Limitations Actforbids adding a party where the limitation period has expired. It does not foreclose adding a party absent an affirmative finding that the limitation period has not expired.

[12]      Having regard to the factors outlined above, we conclude that the trial judge’s determination that the action was brought within the limitation period was made for the purposes of the motion only. The motion judge was satisfied that, for the purposes of determining whether to add WSP as a party, the limitation period had not expired.

[13]      The order under appeal is interlocutory.  This court has no jurisdiction to hear the appeal.  WSP may, if so advised, seek leave to appeal in the Divisional Court, or it may raise the limitations argument at trial.

I confess that I’m not entirely persuaded by the Court’s reasoning.  It’s settled law (or at least was settled until this decision) that on a motion for leave to add a defendant, the court can determine the timeliness of the claim.  That is, the court can find that the plaintiff has established that it discovered its claim against the proposed defendant within the limitation period.  The court would then make the order denying the proposed defendant leave to plead a limitations defence.

I wonder whether the issue here was nothing more than the plaintiff neglecting to insist on such language in the order given the motion judge’s finding that the plaintiff brought the motion in time.

Lastly, I indulge some pedantry in regards of legal sloppiness:

[3]         On the motion, the respondent contended that its claim against WSP was not reasonably discoverable until a date within the two year limitation period.  WSP contended that the respondent had ample information upon which to base its claim years earlier.  The motion judge accepted the respondent’s position, concluding, at para. 38:

Consequently, I find that the United Counties [respondent] can add WSP as a party to the litigation since its actions to do so were within the limitation period.

[4]         WSP appeals claiming that the motion judge erred in concluding that the claim could not reasonably have been discovered at a point beyond the applicable time limit under the Act.  The respondent argues that the motion judge was correct in her analysis of the Limitations Act provisions.  The respondent also raises a preliminary jurisdictional point.  Counsel argues that the order under appeal is interlocutory and not final, meaning that any appeal lies with leave to the Divisional Court.

[5]         The respondent acknowledges that if the order is not final, the respondent cannot claim that the order is binding on the trial judge, meaning that WSP can re-litigate the limitation issue at trial.  Counsel has raised the issue, however, because in his submission, the jurisprudence from this court dictates that the order is interlocutory and cannot be appealed to this court.

A claim is not discoverable within a limitation period.  Pursuant to s. 4 of the Limitations Act, it is the discovery of a claim that causes the limitation period to run.

The proper question on these motions is whether the plaintiff discovered the claim within two years of the motion.  This isn’t because the limitation period runs retrospectively two years from the date of the motion.  Rather, it’s because discovery of the claim any earlier than two years from the motion means the limitation period commenced earlier than two years from the motion, and therefore expired before the motion.