Valesco v. North York Chevrolet Oldsmobile Ltd.

Valesco v. North York Chevrolet Oldsmobile Ltd. Collection Decisions of the Court of Appeal Date 2011-07-19 Neutral citation 2011 ONCA 522 Docket numbers C53267 Judges Doherty, David H.; Laskin, John Ivan; Simmons, Janet M. Subject Civil Decision Content CITATION: Valesco v. North York Chevrolet Oldsmobile Ltd., 2011 ONCA 522 DATE: 20110719 DOCKET: C53267 COURT OF APPEAL FOR ONTARIO Doherty, Laskin and Simmons JJ.A. BETWEEN Eliazbeth Velasco, Samuel Velasco, Angela Velasco, Samuel Velasco, Leticia Leano Cootauco, Cristano Cootauco, Ruel Cootauco, and Eden Cootauco Ilagen Plaintiffs (Appellants) and North York Chevrolet Oldsmobile Ltd. and North York Chevrolet Ltd. Defendants (Respondents) William G. Scott for the appellants Van Krkachachovski and Anthony Cole for the respondents Heard: July 14, 2011 On appeal from the judgment of Justice Thomas J. McEwen of the Superior Court of Justice dated January 5, 2011 By the Court: [1] The appellant Elizabeth Velasco was seriously injured on July 23, 2005 after the car in which she was riding was struck by two other vehicles that may have been racing. Those two vehicles were driven by Steven Denyer and Douglas Coombs, respectively. [2] In issuing a statement of claim on March 15, 2006 in relation to the accident, counsel for the appellants relied on a statement in the police report that Steven Denyer was owner of the vehicle he was driving at the time of the accident (the “Denyer vehicle”). [3] Denyer’s insurer, the Royal & Sun Alliance Insurance Company, denied coverage to Denyer but added itself as a statutory third party to the action. In October 2006, Royal & Sun Alliance delivered a pleading admitting that Denyer was the owner of the Denyer vehicle. [4] In January 2007, counsel for the appellants received a 732 page Crown brief that contained a motor vehicle licence plate search disclosing that, in fact, it was the respondents who owned the Denyer vehicle at the time of the accident. Although a law clerk reviewed the Crown brief for the purpose of assessing whether Coombs and Denyer were racing, the law clerk did not notice what the licence plate search revealed about the ownership of the Denyer vehicle. The licence plate search did not come to the attention of counsel for the appellants until January 2009 when they were preparing for Denyer's discovery. In May 2009, the appellants issued a statement of claim against the respondents, asserting a claim against them on the basis of their ownership of the Denyer vehicle. [5] On a motion for summary judgment to dismiss the action against the respondents because of the expiry of the relevant limitation period, the motion judge said he could not conclude that counsel failed to exercise reasonable diligence in this case prior to receipt of the Crown brief given the combined information in the police report and the Royal and Sun Alliance pleading. However, the motion judge went on to hold that appellants’ counsel should not have closed their minds to the issue of ownership of the Denyer vehicle based on that information and should have reviewed the Crown brief promptly upon its receipt with a view to determining the ownership issue. [6] It is not disputed that appellants’ counsel did not actually know that the respondents were the owners of the Denyer vehicle until January 2009. [7] However under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, a limitation period begins to run on the date a claim is discovered. And under s. s. 5(1) of the Act, a claim “is discovered on the earlier of, (a) the day the person with the claim discovers [among other things, that the act or omission that caused injury, loss or damage was that of the person against whom the claim is made], and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of the matters referred to in clause [5(1)]a”. [8] Accordingly, the issue for the motion judge was whether the solicitors for the appellants “ought to have known” that the respondents were the owners of the Denyer vehicle shortly after they received the Crown brief. [9] In our view, having regard to the combination of information appellant’s counsel had indicating that Denyer was the owner of the Denyer vehicle, it was unreasonable for the motion judge to conclude that appellants’ counsel should have treated the ownership issue as a live issue upon receiving the Crown brief. That combination of information led the motion judge to conclude that appellants’ counsel acted with reasonable diligence prior to receiving the Crown brief. In our opinion, counsel for the appellants acted with reasonable diligence in continuing to rely on that information until contrary information actually came to their attention. [10] The appeal is therefore allowed and the order of the motion judge dismissing the action is set aside. In accordance with the agreement of counsel, costs of the appeal are to the appellants on a partial indemnity scale fixed in the amount of $7500 inclusive of disbursements and applicable taxes. Signed: “Doherty J.A.” “John Laskin J.A.” “Janet Simmons J.A.” RELEASED: “DD” July 19, 2011