In the recent decision of Arcari v Dawson, 2016 ONCA 715, the Ontario Court of Appeal clarified the impact of potential expert negligence on the “discoverability” analysis arising from section 5 of the Limitations Act, 2002, and also commented on the influence that Hryniak v. Mauldin, 2014 SCC 7 should have on motions to add defendants to existing actions.

Arcari arose from a 2009 motor vehicle accident, wherein the appellant was injured when she was struck by a vehicle while crossing a street at a crosswalk in Kitchener, Ontario. An accident reconstruction expert was hired to produce a report on the cause of the accident, and concluded that the accident resulted from the speed of the vehicle that struck the appellant. She initiated a civil action against the driver of the vehicle in December of 2010 with the assistance of her first lawyer.

At some point prior to trial the appellant hired a new lawyer, who asserted that when he attended the accident scene it was obvious to him, given his unique professional experience, that the design and safety features or lack thereof at the crosswalk were contributing factors to the accident. This was in no way addressed in the initial reconstruction. The appellant then sought to add the City of Kitchener and the Regional Municipality of Waterloo to her action more than two years after the accident. The motion judge concluded that any potential claims against the City of Kitchener and the Regional Municipality of Waterloo were statute barred, and dismissed the appellant’s motion with costs.

On appeal, the Court confirmed that the clear expiration of a limitation period was an absolute bar to the addition of a party to an already existing action. Subject to statutory exceptions, the limitation expired two years after the day that the claim was discoverable, and the question of exactly when the claim was discoverable was a question of fact. On a motion to add a defendant a motion judge is entitled to assess the record before her to determine whether there was a reasonable explanation on proper evidence for the delayed discovery of the claim, despite the exercise of reasonable diligence. If this explanation for delayed discovery was absent and the plaintiff did not raise credibility issues or issues of fact that required a summary judgment motion or trial, then the motion judge could dismiss the motion.

The Court held that the appellant’s initial hiring of an engineer was not sufficient due diligence to postpone the expiry of the limitation period as against others (e.g. The City) in the absence of an explanation for his failure to identify the purported liability of the respondents (e.g. The City) in the first case. The Court confirmed that there was no basis to interfere with the motion judge’s finding that the appellant ought to have known that an act or omission of the respondents contributed to her injuries. Essentially, the expert’s knowledge was attributed the appellant, and if the expert could have and should have discovered the claims against the respondents with the exercise of due diligence, the appellant could not later rely on this negligence to allege that her claim was not discoverable. In this case a second lawyer’s new notion that it was “obvious” the intersection lacked design and safety features was not sufficient to extend the time for the appellant to bring a claim against the respondant.

The Court also held that the limitation period was not extended by the severity of the appellant’s injuries, since the appellant was able to appreciate her injuries sufficiently to commence a claim against the defendant driver within two years of the accident. These injuries did not interfere with her ability to discover her claims against the respondents.

In an effort to clarify the impact of Hryniak, the Court added that while a motion to add defendants was not a motion for summary judgment, the principles identified in Hryniak, specifically the goal of a fair process that resulted in just adjudication of disputes and that was “proportionate, timely and affordable”, were relevant considerations on motions to add defendants. While ultimately stopping short of a definitive pronouncement, the Court noted that it may well be that the former strong default rule in favor of committing the issue of discoverability to trial should be set aside.

Overall, Arcari signals that discoverability is a live issue for consideration on motions to add new defendants to existing actions, and that potential defendants should be fully prepared to contest discoverability at this early stage. The moving party seeking to add others to a claim must identify why the parties were not initially added in time. It also confirms the wide scope of influence that Hryniak will continue to have outside of the context of summary judgment motions, and that it can be an effective means of obtaining the efficient and early resolution of significant preliminary issues.

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