This case study will review the various issues considered in two motions in the same action, one of which was appealed. The three decisions are as follows:
The motions are demonstrative of some common issues that could arise in a wintertime accident on a 400-series Highway, and how the courts may treat those issues.
This matter arises from a rear-end motor vehicle accident on Highway 401 on February 27, 2013. The plaintiff was an on-duty OPP officer when the accident occurred. The defendants were the owners and operator of the rear-ending vehicle. The statement of claim was served on May 12, 2015.
On November 10, 2016, the defendants issued the third party claim for contribution and indemnity as against Her Majesty the Queen, in Right of the Province of Ontario,
Represented by the Ministry of Transportation of Ontario (“the MTO”). The defendants alleged that the snowy conditions of the highway were a contributing factor to the accident.
The MTO defended the third party action on January 6, 2017. The MTO made no mention of a winter maintenance contractor in its pleadings.
Examinations for discovery proceeded on May 28, 2018. The MTO participated in the discoveries of the plaintiff and defendants, but refused to produce a witness or productions. The defendants brought a motion to compel the MTO to comply with their discovery obligations.
On October 1, 2019, Justice R. Ryan Bell delivered her honour’s decision Taylor v. Mayes, 2019 ONSC 5651 regarding the defendants’ motion to compel discovery of the MTO. The MTO took the position that the defendants were not entitled to either documentary or oral discovery because the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P. 50 (“PTHIA”) did not provide a right of discovery of the Crown.
The MTO also argued that it should not be subjected to discovery because the MTO had not been put on notice within 10 days in accordance with s. 33(4) of the PTHIA. Justice Bell noted that she was not in a position to make findings with regard to whether the action was statute-barred by operation of s. 33(4), or whether the reasonable excuse exception was applicable. In any event, she determined that this was “not a basis upon which to deny the defendants’ motion for discovery of [the MTO].”
Furthermore, the MTO argued that the action was barred by operation of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, sched. A (“WSIA”), as the plaintiff was a worker for a “Schedule 2” employer, and the third party was a “Schedule 2” employer, and therefore that bringing an action as against the MTO for the purposes of discovery was an abuse of process. Justice Bell noted that this would be the subject of a motion for summary judgment to be argued at a later date.
Justice Bell ordered the MTO to complete both documentary and oral discovery.
The MTO produced relevant documents containing a reference to a winter maintenance contractor on October 25, 2019. A representative of the MTO was discovered on November 19, 2019. The representative identified the third party maintenance contractor. The defendants subsequently brought a motion to add the winter maintenance contract as a third party to the action.
On March 24, 2021, Muszynski J. delivered her decision in Taylor v. Mayes, 2021 ONSC 2239 regarding the defendants’ motion to add the winter maintenance contractor as a third party to the action. The proposed third party took the position that the claim was statute barred by virtue of the Limitations Act 2002, SO 2002, c 24, Sch B. Whether a claim against the maintenance contractor was discoverable by the defendants was the main issue for the court’s consideration.
Muszynski J. found that the defendants did not know of the claim against the winter maintenance contractor until the MTO was ordered to undergo documentary and oral discovery. The fact that the MTO did not include a winter maintenance contractor in its pleadings was a factor in determining that a reasonable person would not have known about the presence of a winter maintenance contractor.
The defendants were granted leave to amend their third party claim, and an Order that the claim against the winter maintenance contractor was not statute barred.
On April 13, 2022, the Court of Appeal rendered its decision in Taylor v. Mayes, 2022 ONCA 297, upholding the ruling of Muszynski J. The Court of Appeal agreed with the motion judge’s conclusion that the failure by the MTO to include any facts related to the winter maintenance contractor in its pleadings, and failure to provide timely documentary disclosure, should not be to the detriment of the defendants.
The Court of Appeal held further that the motion judge was able to make a final determination on the limitation period issue, and made no error in not permitting the winter maintenance contract to plead a limitations defence. The Court emphasized that the litigation was already seven years old at that point and “does not need a second round in the ring on the limitation issue”.
This may not be the last that we hear from Taylor v. Mayes. There is a possibility for further decisions yet with regard to whether the action as against the MTO is barred by the WSIA or PTHIA.
The events set out in the above decision highlight some considerations that defence counsel should turn their minds to when defending a motor vehicle accident action that took place on 400-series Highway, where there may be an allegation that roadway conditions caused the accident.
Notably, the MTO will likely be compelled to engage in documentary and oral discovery, whether or not the 10-day notice was provided in accordance with the statute, or whether the action may be barred by operation of the WSIA. Also, that the contents of the MTO’s pleadings are highly relevant to when the court will find that the limitation clock starts running with respect to a contribution claim against a third party winter maintenance contractor.