Posted: January 12, 2017
By: Steve Rastin

In December 2009, a woman sustained significant injuries to her shoulder and neck, when she was struck by a vehicle while crossing the street in front of a Kitchener hospital.  Her lawyer hired an accident reconstruction expert who determined that the driver’s speed was a causal factor in the accident, and one year after the accident, the woman commenced a lawsuit against the driver of the car.  The trial date was set for September 2015.

The injured woman later hired a new lawyer, who examined the scene of the accident and concluded that the design and safety features of the crosswalk (or lack thereof) contributed to the accident.  Then, as the trial date approached and more than 5 years since the accident, the plaintiff filed a motion to add the City of Kitchener and the Regional Municipality of Waterloo as defendants, based on the advice of her new lawyer.

The motion judge dismissed the plaintiff’s motion to amend her claim, on the basis that it is past the two-year limitation period and the claim is thus statute-barred. He asserted that the plaintiff had ample opportunity to discover the respondents’ alleged negligence, as her original lawyer and the engineer/accident reconstructionist visited the accident scene only one year after the accident.  Therefore, discoverability and due diligence are not a valid basis for extending the limitation period, in this case.  The motion judge concluded that the plaintiff should have known, before the limitation period, that the actions (or inaction) of one or more of the respondents contributed to her injuries.  The judge awarded costs of the motion to the respondents.

The plaintiff subsequently appealed the motion judge’s decision, in Arcari v. Dawson (2016).  The Ontario Court of Appeal cited Pepper v. Zellers Inc., in clarifying the circumstances when a claim is statute-barred and whether a motion to amend may be allowed past the limitation period.  The decision rests on whether there is a reasonable explanation based on proper evidence as to why a plaintiff could not have discovered the claim through the exercise of reasonable diligence. If a plaintiff cannot produce evidence of facts that merit consideration and there is no reasonable explanation why they could not have discovered the claim against a potential negligent party through reasonable due diligence and before the two year limitation period, then a motion judge may deny the plaintiff’s motion.

The Appeal Court also referred to the Limitations Act (2002) s. 21, and noted that “the expiration of a limitation period is an absolute bar to the addition of a party to an already existing action”.  The statutory limitation period is two years from the date a claim was discovered, which is, in most cases, two years from the date of the accident causing injury.

In Arcari, Justice Sloan was tasked with deciding whether or not the appellant/plaintiff had a reasonable explanation for not discovering that she had potential grounds for a claim against the City of Kitchener and Waterloo Region, before the limitation period expired.

The appellant argued that the motion judge erred in concluding that she ought to have known that an act or omission of the respondents contributed to her injuries. She stated that she had a reasonable explanation as to why she could not have discovered her claim against the respondents through reasonable diligence, citing the following reasons.  First, the appellant argued that she exercised sufficient due diligence by hiring an engineering expert to investigate the scene, but the expert did not identify the respondents as having contributed to her injuries. She also asserted that the expert was not negligent, but rather, the issue was too complex and therefore not obvious.  Another of the appellant’s arguments was that “the motion judge failed to take into account the full extent of her injury in assessing discoverability.”

Justice Sloan rejected the appellant’s arguments and found no basis to interfere with the motion judge’s decision.  Justice Sloan referred to a comment made by the appellant’s lawyer where the latter stated that when he visited the location of the accident in 2015, it was immediately ‘obvious’ to him that the design and lack of safety features at the crosswalk contributed to the 2009 accident.  This statement contradicted the lawyer’s assertion that the issue was ‘so complex’ as to not be obvious to the engineer.  

Justice Sloan cited The Law of Civil Procedure in Ontario (2nd ed.) which states, “it is incumbent upon the plaintiff to lead some evidence of the steps he/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”.  The judge disagreed with the appellant’s assertion that the act of retaining an expert engineer was sufficient and reasonable diligence to postpone the limitation period.

Finally, Justice Sloan did not accept the appellant’s argument that the fact that she later discovered that her injuries were more extensive should have bearing on the extension of the limitation period.  The judge stated that she previously indicated that her injuries impacted her ability to work and at that time, knew she had damages that warranted a lawsuit.  

Justice Sloan concluded that the motion judge did not err in dismissing the appellant’s motion to add The City of Kitchener and the Regional Municipality of Waterloo as Defendants and therefore, he dismissed the appellant’s appeal of the motion.

An important aspect in filing a personal injury claim and building a strong case is ensuring that you have gathered all the necessary facts and evidence, pertaining to the accident, the nature and extent of injuries, and the resulting losses for the plaintiff. At Rastin & Associates, we have gained years of experience and expertise in representing clients in civil actions and we well-understand all the necessary steps in building a successful case, beginning with a thorough initial investigation.  Call our office today if you or someone you love was injured in an accident as a result of another person’s negligence and you would like to claim compensation for your losses.

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



 
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Posted under Car Accidents, Injury Case Preparation