The Ontario Court of Appeal has determined that a claim arising out of an oil spill is barred by the Limitations Act, 2002 two years after the plaintiff learned of the involvement of the potential defendant.
Audrey Sloan sued Ultramar Limited and Sauve Heating Limited as a result of an oil spill that took place on February 23, 2004. That action was commenced February 22, 2006, one day prior to the expiry of the two year limitation period. Ultramar delivered its statement of defence on August 9, 2006, and although the statement of defence clearly indicated that the fuel had been delivered by an independent contractor, it appears that the contractor and the truck driver were not named in Ultramar’s pleading.
The examination for discovery of a representative of Ultramar was held some eight months after the delivery of the statement of defence. On discovery, counsel for the plaintiff asked questions about the identity of the truck driver and the company that had delivered the fuel. Ultramar provided a name for the independent contractor, but that name turned out to be erroneous.
Ultramar gave several undertakings on discovery related to the identity of the independent contractor and the driver. These undertakings remained outstanding until April 30, 2009. Based on information provided in the answers to the undertakings, the plaintiff brought a motion on November 13, 2009 seeking to add the independent contractor and the truck driver as defendants to the action. This motion was brought more than three years after the involvement of the independent contractor was disclosed in the Ultramar statement of defence.
The Master granted the order sought by the plaintiff, adding the driver and the contractor as defendants.
The Court of Appeal identified the delivery of the statement of defence on August 9, 2006 as the “…triggering event in terms of the discovery of a potential claim against the proposed defendants”. The court took note of the fact that, in the two years following the triggering event, the only step taken by the plaintiff to follow up on the information disclosed in the Ultramar statement of defence was to question the Ultramar representative on discovery about the truck driver and the independent contractor.
While the Court of Appeal allowed that the threshold on a motion to add a party is low, it concluded that the plaintiff had failed to provide a reasonable explanation as to why the proposed defendants were not identified and added as parties prior to the expiry of the two year limitation period. On the evidence available, it was not open to the Master to grant the order adding the proposed defendants.
Plaintiffs in environmental claims often do not know the names of all of the individuals and companies involved in the incident at the time the statement of claim is issued. Thus the situation in which this kind of information comes to light by means of a statement of defence filed by an opposing party, or through the discovery process, is fairly common.
It appears that a plaintiff who has learned of the possible involvement of a potential defendant must take prompt steps to identify and add that party as a defendant to the pending action, even if the information provided is incorrect or incomplete.
Link: Sloan v. Ultramar Limited, 2011 ONCA 91
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