Obtaining a motor vehcile accident report is not in all circumstances sufficient due diligence in identifying a potential defendant. In Harold v. Quigley, Justice Broad held that there was no evidence to suggest that the police officer who completed the MVAR had investigated whether the proposed defendant had maintained and kept the highway in repair as the plaintiff proposed to plead. The plaintiff was not entitled to assume that the officer had done so. These are the relevant paragraphs:
[17] There is nothing in the motion material which would suggest that the plaintiff’s abilities and circumstances affected her ability to investigate and understand the facts upon which the claim might be based.
[18] The affidavit of George B. Dietrich, the managing lawyer at the Dietrich Law Office, did not disclose any steps taken by the plaintiff or her lawyers to discover the identity of all responsible parties within the two-year limitation period following the accident other than to obtain the MVAR. The plaintiff argues that nothing further was required in the exercise of due diligence. Mr. Dietrich stated that his firm relied upon the MVAR which reported that the defendant Quigley hit an icy spot, left the road into the median and flipped over and that he was driving too fast for the conditions. No enquiries were initiated on behalf of the plaintiff respecting the nature and extent of the winter road maintenance carried out by the Crown and Carillion in the period leading up to the accident.
[19] The plaintiff relies upon the Court of Appeal decision in Lingard v. Milne-McIssac (2015), 2015 ONCA 213 (CanLII), 125 O.R. (3d) 118 (C.A.) for the proposition that “reliance on the information contained in a motor vehicle accident report is reasonable and sufficient and constitutes due diligence.” She also points to the case of Todhunter v. Owles, 2015 ONSC 5656 (CanLII), 2015 ONSC 5656 (S.C.J.) in which Tausendfreund, J. referred to Linguard and rejected the proposition that “each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants to address the standard of care regarding winter maintenance.”
[20] The Crown and Carillion argue that the plaintiff’s motion material does not contain evidence of any due diligence to displace the presumption in s. 5(2) of the Limitations Act, 2002. They say that certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement for discoverability, citing the case of Kowal v. Shyiak, 2012 ONCA 512 (CanLII), 2012 ONCA 512 (C.A.) at para. 18-19, and that neither is knowledge of the standard of care or whether conduct fell below it, citing Cassidy v. Belleville (Police Service), 2015 ONCA 794 (CanLII), 2015 ONCA 794 (C.A.) at para. 13.
[21] In my view the Lingard and Todhunter decisions are not determinative of the question as to whether the plaintiff has provided a reasonable explanation as to why information was not obtainable with respect to the possible claims against the Crown and Carillion within the limitation period. The Court of Appeal in Pepper v. Zellers Inc. 2006 CanLII 42355 (ON CA), [2006] O.J. No. 5042 (C.A.) at para. 14 confirmed that a motion under rule 5.04(2) to add parties after the apparent expiration of a limitation period is discretionary and involves a fact-based inquiry. The court observed that, while the threshold of such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.
[22] Lingard dealt with information set forth on a MVAR with respect to insurance coverage of the defendant driver, holding that it was reasonable for the plaintiff to assume that the police officer who completed the report asked the defendant for proof of insurance and that the plaintiff was justified in relying upon the motor vehicle accident report for that information.
[23] In the present case, there is nothing to suggest that the police officer who completed the MVAR conducted an investigation into whether the Ministry of Transportation and its contractor had maintained and kept the highway in repair, nor that the plaintiff was entitled to assume that the police officer had done so. Although the MVAC identified that the road was icy, it did not comment on whether the icy condition was connected to a failure of the Ministry and its contractor to keep the highway in a reasonable state of repair.
[24] Teusendfreund, J. in Todhunter was considering a motion for leave to appeal to the Divisional Court from a decision of Tranmer, J. to grant leave to the plaintiff to amend to add two municipalities as defendants. Tranmer, J. found that the plaintiff had demonstrated due diligence in determining the parties liable for the accident by obtaining the MVAR, by moving to discovery and in bringing the motion shortly thereafter. He found that the MVAR did not suggest negligence on the part of either municipality with regard to road maintenance and it was not until the defendant’s examination for discovery that any issue with respect to the existence of black ice was identified.
[25] As indicated above, Teusendfreund, J. rejected the proposition that each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants. However, he did not hold that plaintiffs should be relieved in all circumstances from any obligation to carry out due diligence on whether the relevant authority had failed to maintain and keep the subject highway or road in repair, particularly when she or he is in possession of information that such may be the case.
[26] In the present case the MVAR noted that the road was icy. The plaintiff has led no evidence that, armed with this information, she took any steps to attempt to ascertain whether the icy condition may have been a result of a failure of the authority having responsibility to maintain and repair the highway to the requisite standard. As indicated by the Court of Appeal in Kowal at para. 18, certainty of a party’s responsibility for an act or omission that caused or contributed to the loss is not a requirement and that it is enough to have prima facie grounds to infer that the acts or omissions were caused or contributed to by the party or parties identified. In Cassidy, at para. 13, the Court of Appeal held that discovery of sufficient material facts to trigger the commencement of a limitation period does not depend on precise knowledge of the applicable standard of care and whether the party’s conduct fell below it.
[27] In contrast the situation in Todhunter, the plaintiff in the present case had knowledge of the existence of an icy road surface which contributed to the accident. In her application for statutory accident benefits dated February 27, 2014, the plaintiff described the mechanism of the accident as involving the vehicle hitting black ice on Highway 11. As indicated above, the MVAR, received by the plaintiff’s counsel on January 9, 2015, had noted the presence of black ice on the highway.
[28] It is noteworthy that counsel for the plaintiff requested the consent of Crown and Carillion to the amendment to add them as defendants prior to receipt of any documentation or records from their counsel respecting maintenance of the highway during the relevant time period. No new facts were discovered by counsel for the plaintiff prior to making the determination to amend her pleading.
[29] In Wong v Adler, 2004 CanLII 8228 (ON SC), [2004] O.J. No. 1575 (Master) aff’d 2004 CanLII 73251 (ON SCDC), [2005] O.J. No. 1400 (Div. Ct.) Master Dash stated, at para. 45, that if the court determines that there is an issue of fact or credibility on a discoverability allegation the defendant should be added with leave to plead a limitations defence, whereas, if there is no such issue, the motion should be refused. In my view there is no issue of credibility on the question of whether simply obtaining the MVAR constituted sufficient due diligence on the part of the plaintiff in the circumstances. The court on this motion is in as good a position to determine that issue as would a judge on a summary judgment motion or at trial.
[30] In my view the plaintiff has failed to discharge the onus on her show, by evidence, that discoverability delayed the commencement of the running of the limitation period. Her motion to amend the Statement of Claim to add the Crown and Carillion as defendants must therefore be dismissed.