Court Refuses Amendment to Plead that Owner of Vehicle Was Also Employer of Driver

In Shuker v. Gagne, Mr. Justice Barry Matheson of the Ontario Superior Court refused to permit the plaintiffs to amend their statement of claim, to plead that a defendant who had already been sued in the capacity of owner of a motor vehicle, was also the driver’s employer. The reason for the refusal was that Justice Matheson felt that the proposed amendment would have raised a new cause of action against that defendant and that the limitation period for suing on that cause of action had expired.

The claim was one for personal injuries arising out of a motor vehicle accident. The plaintiffs had sued the owner and driver of the subject automobile within the two-year limitation period. (Although Matheson J. referred in his reasons to the limitation period being under “the Limitations Act“, it was presumably the former limitation period under the Highway Traffic Act that applied, since the accident was in 2001 and the current limitation period under the Limitations Act, 2002 did not come into force until January 1, 2004.)

The owner of the vehicle, a party named “Laberge”, who was sued in time, would have been a protected defendant under s. 267 of the Insurance Act (i.e., there would be a deductible from non-pecuniary damages, the injured plaintiff would have to meet a verbal threshold, etc.) However, because of the Court of Appeal’s decision in Vollick v. Sheard, Laberge, who also happened to be the employer of the driver of the car, would not be a protected defendant if liable in the capacity of employer. Thus, there could potentially be significant benefits to having Laberge in the action as employer.

The plaintiffs argued that they did not discover that Laberge was the driver’s employer until they received the information in the course of discoveries, apparently in January, 2007. On this basis, they tried to avoid having the proposed amendment to their claim rejected on the ground that the claim was prescribed. But Justice Matheson was not persuaded. He said that the plaintiffs could have pleaded in the alternative, in their original statement of claim, that Laberge was the driver’s employer. He added that, “I find nothing to indicate that the Defendants hid or obstructed the Plaintiffs in any manner with respect to that issue.”

His Honour appears to have been sceptical about the plaintiffs’ allegation, that they did not learn that Laberge was the employer, until 2007. However, he did not outright reject that evidence (and it would have been quite unusual for a judge to make such a credibility finding on a motion). It appears from the reasons, that Justice Matheson rejected the discoverability argument because he was satisfied that the defendants had not hidden from the plaintiffs the fact that Laberge was the employer. We question whether such a finding was one that was open to him to make; to the best of our knowledge, a discoverability argument would not be defeated by the absence of any steps by the defendant to hide the true facts from the plaintiffs. While a trial judge might well have concluded that the plaintiffs knew or reasonably could found out about Laberge within the limitation period, it is surprising to see such a decision made on a motion.

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