Motion to Add Defendant Dismissed Due to Insufficient Evidence on Discovery of Claim

In Condreanu v. Choi, 2020 ONSC 6105, the plaintiff was involved in a motor vehicle accident on November 23, 2017. On November 21, 2019, she commenced an action against a driver, Choi, along with the owner of Choi’s vehicle.

One month prior to commencing the action, the plaintiff’s lawyer provided the insurer of another driver, Kelly, with notice of the plaintiff’s intention to sue Kelly. However, the plaintiff did not sue Kelly.

On January 13, 2020, the lawyer for Choi wrote to the plaintiff’s lawyer advising that Kelly was involved in the accident. The plaintiff brought a motion to add Kelly as a defendant.

The plaintiff’s lawyer attempted to structure her supporting affidavit in a manner to suggest that the claim against Kelly was not discovered until January 13, 2020, when Choi’s lawyer sent the letter. However, the affidavit was not clear on this point. The affidavit did not make any reference to the plaintiff’s lawyer’s letter to Kelly’s insurer on October 21, 2019.

Further, although the plaintiff’s lawyer described multiple unsuccessful attempts to obtain the Motor Vehicle Collision Report, there was nothing to link the report with the plaintiff’s knowledge of Kelly’s identity.

Justice Charney stated that “the plaintiff’s counsel’s affidavit is an attempt to obfuscate the chronology without directly addressing the key facts necessary to succeed on this motion”.

The court was not provided with any indication as to when the claim against Kelly was actually discovered. As a result, it was presumed that the plaintiff discovered the claim against Kelly on the date of the accident.

Justice Charney, therefore, held that the limitation period expired on November 23, 2019 (two years after the accident), and the plaintiff’s motion to add Kelly was dismissed.