{"id":603,"date":"2017-06-29T18:15:00","date_gmt":"2017-06-29T22:15:00","guid":{"rendered":"http:\/\/limitations.ca\/?p=603"},"modified":"2017-06-29T18:16:37","modified_gmt":"2017-06-29T22:16:37","slug":"ontario-ca-on-adding-a-party-outside-of-presumptive-limitation-period","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=603","title":{"rendered":"Ontario: CA on adding a party outside of presumptive limitation period"},"content":{"rendered":"

We overlooked this 2016 Court of Appeal decision in Arcari v. Dawson<\/em><\/a>\u00a0that considers\u00a0adding a party to a proceeding after the presumptive expiry of the limitation period.<\/p>\n

The Court described the relevant principles:<\/p>\n

\n

[<\/a>10]\u00a0\u00a0 \u00a0\u00a0 When a plaintiff\u2019s 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\u2019s motion (Pepper v. Zellers Inc. <\/em>(2006)<\/span><\/em>, 2006 CanLII 42355 (ON CA)<\/a>, 83 O.R. (3d) 648 (C.A.)<\/span>, at paras. 18, 19, 24).<\/p>\n

[…]<\/p>\n

[<\/a>15]\u00a0\u00a0 \u00a0\u00a0 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<\/em>, 2d ed. (Markham, Ont.: LexisNexis, 2014), at para. 2.284: \u201cit 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.\u201d We also reject the appellant\u2019s submission that merely retaining an engineer was sufficient to discharge the due diligence responsibility and postpone the limitation period indefinitely.<\/p>\n<\/blockquote>\n

Two facts are noteworthy:<\/p>\n

    \n
  1. The Court left open the possibility that it will revisit the rule in favour of committing the issue of discoverability to trial:<\/li>\n<\/ol>\n

    [<\/a>17]\u00a0\u00a0 \u00a0\u00a0 Although a motion to add defendants is not a motion for summary judgment, the goal of \u201ca fair process that results in just adjudication of disputes\u201d that is \u201cproportionate, timely and affordable\u201d is relevant in this context as well: Hryniak v. Mauldin<\/em>, 2014 SCC 7<\/span> (CanLII)<\/a>, [2014] 1 S.C.R. 87<\/span>, at para. 28<\/span>. It may well be that this court should interpret Pepper<\/em> <\/i>in light of Hryniak<\/em> <\/i>and re-evaluate the suggestion that Pepper<\/em> <\/i>sets a strong default rule in favour of committing the issue of discoverability to trial. \u00a0We leave that matter for another day.<\/p>\n

    2. \u00a0The 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.\u00a0 This engineer found that the driver’s speed was the cause.\u00a0 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.\u00a0 The Court rejected the plaintiff’s submission that merely retaining an engineer to determine the cause was sufficient to discharge the due diligence responsibility.\u00a0 Arguably, this heightens the responsibility.<\/p>\n","protected":false},"excerpt":{"rendered":"

    We overlooked this 2016 Court of Appeal decision in Arcari v. Dawson\u00a0that considers\u00a0adding a party to a proceeding after the presumptive expiry of the limitation period. The Court described the relevant principles: [10]\u00a0\u00a0 \u00a0\u00a0 When a plaintiff\u2019s motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge … Continue reading Ontario: CA on adding a party outside of presumptive limitation period<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[124,57,43,359],"class_list":["post-603","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-party","tag-due-diligence","tag-ontario-court-of-appeal","tag-why-do-people-wait-so-long-to-sue"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/603","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=603"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/603\/revisions"}],"predecessor-version":[{"id":605,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/603\/revisions\/605"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=603"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=603"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=603"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}