Posted: November 14, 2016
By: Steve Rastin

On November 23, 2011, Travis Todhunter was injured when a vehicle collided with the car in which he was traveling as a passenger.  A few months later, Mr. Todhunter received the accident report, which contained the following information detailing the circumstances of the accident: the vehicle driven by the defendant lost control; the roads were icy and slippery; there was freezing rain and drifting snow; there was skidding and sliding involved; and the accident occurred on a country road. On May 22, 2012, Mr. Todhunter filed a claim against James Owles, the driver of the vehicle that struck his.

On September 23, 2013, the defendant driver filed his statement of defence, in which he  acknowledged the severe winter and road conditions at the time of the accident, but he made no mention of potential municipal liability, nor did he provide a reason for the cause of the accident.  Then, at his examination for discovery in March 2014, the defendant attributed the loss of control of his vehicle to black ice on the road where the accident occurred. One month later, he obtained an order for leave to issue a third party claim for contribution and indemnity against the County of Lennox and Addington and the Town of Napanee.

As a result of the above filings, in June 2015, the plaintiff, Mr. Todhunter sought a motion to amend his statement of claim to add the third party municipalities as defendants. This motion was granted, acknowledging that the plaintiff had demonstrated due diligence in determining who was liable for the accident (by obtaining the accident report), moving to discovery diligently and finally, by quickly bringing the motion to amend his statement. The third party municipalities disagreed with the motions judge and sought leave to appeal the decision, on the basis that the action was brought past the statutory two year limitation period.

In Todhunter v. Owles, the issue in question was whether to grant the municipal third party defendants a motion to appeal the order allowing the plaintiff to amend his claim. The municipalities argued that the plaintiff had full knowledge of the road conditions the night of the accident after receiving the accident report, four months after the collision. Further, if the plaintiff had truly exercised due diligence, the report would have provided sufficient information for the plaintiff to add them as defendants within the two-year limitation period.

Justice Tausendfreund disagreed with the third party defendants and rejected their references to the decisions in Wong v. Adler and Wakelin v. Gourley. Rather, the judge based his finding on the Ontario Court of Appeal decision in Lingard v. Milne-McIsaac where the Court held that the standard of “reasonable diligence” proposed in the two cases was unnecessarily high, and that it was reasonable and sufficient for the plaintiff to have initially, only relied on the evidence from the accident report.  Further, it was not until the defendant’s discovery in March 2014, that the plaintiff faced the defendant’s position that the winter road conditions were the cause of the collision.

The judge also addressed the third parties’ argument that the plaintiff ought to have known that the municipalities could potentially be defendants, given the road conditions stated in the accident report. Justice Tausendfreund disagreed since, based on this reasoning, any accident occurring in winter conditions would automatically require the addition of a municipality as a defendant, which he stated, “cannot and should not be so”.

Justice Tausendfreund concluded that the plaintiff was given an initial statement of defence that never addressed winter maintenance standards and only considered the municipalities as proposed defendants after the defendant made winter maintenance a factor in the accident and alleged liability on the part of the municipalities. It was only then that “the clock started to run based on the discovery principle.”  The judge therefore denied the third party defendants’ appeal of the motion judge’s decision and allowed the plaintiff to amend his claim to add the municipalities as defendants.

There are many legal issues that can add complexity to a negligence action. The Todhunter case contained several potentially complicated aspects, including actions against municipalities, motor vehicle accidents that occur under winter road conditions, and claims allegedly issued passed the two year limitation period.  At Rastin & Associates, our personal injury team is highly experienced in successfully representing individuals injured in motor vehicle accidents under a broad range of circumstances and as such, we are able to provide highly professional and expert representation to our clients.   If you sustained injuries resulting from a negligent driver or unsafe road condition, call Rastin & Associates today to discuss the specifics of your case and learn about your best legal options for obtaining deserved compensation.

You can call us at  844-RASTIN1 or  email Rastinlaw.com
 


 
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Posted under Car Accidents, Personal Injury