Aguonie v. Galion Solid Waste Material Inc., 38 OR (3d) 161

• Court: Ontario Court of Appeal
• Case Date: February 09, 1998
• Jurisdiction: Ontario
• Citations: 38 OR (3d) 161;107 OAC 114;[1998] CarswellOnt 417;156 DLR (4th) 222;1998 CanLII 954 (ON CA);17 CPC (4th) 219;[1998] OJ No 459 (QL);77 ACWS (3d) 520;(1998), 107 O.A.C. 114 (CA);1998 CanLII 954 (NS CA)

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Aguonie v. Galion Solid Waste (1998), 107 O.A.C. 114 (CA)

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Temp. Cite: [1998] O.A.C. TBEd. MR.007

Mildred Aguonie, Jullian Aguonie, and the minors, Lyman Aguonie, Jr., Steven Aguonie, Amanda Aguonie, Melanie Aguonie and Janinne Aguonie by their Litigation Guardian Peter N. Downs (plaintiffs/appellants) v. Galion Solid Waste Material Inc. and Galion Dump Bodies Inc. operating as Peabody Galion Material Handling Products, Crysteel Mfg. Inc., Ron Strauss operating as R.J. Trucks and Monarch Hydraulic Inc. (defendants/respondents)

(C27123)

Indexed As: Aguonie v. Galion Solid Waste Material Inc. et al.

Ontario Court of Appeal

Carthy and Abella, JJ.A., and Borins, J.(ad hoc)

February 9, 1998.

Summary:

Aguonie was employed by an Indian Band. He was killed on October 4, 1993 while carrying out repairs on a water tank truck when the tank suddenly lowered and crushed him between the tank and the cab. Aguonie's wife, brother and children (the plaintiffs) commenced an action under the Family Law Act against the Band and the province alleg­ing that they created an unsafe workplace. The plaintiffs retained a mechanical technol­ogist (Miller) to investigate the incident. On January 27, 1995, Miller reported that the accident may have been caused by negli­gence on the part of the truck's manufac­turers. On December 15, 1997, the plaintiffs issued a statement of claim against the man­ufacturers. The manufacturers applied for summary judgment, claiming that the action was statute barred.

The Ontario Court (General Division), in a decision reported 34 O.T.C. 28, granted the manufacturers summary judgment and dis­missed the plaintiffs' action. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and set aside the motion judge's order.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The Ontario Court of Appeal discussed the application of the discoverability rule - The court stated that the discoverability rule was a rule of gen­eral application and applied to all cases in which a limitation period applied - The court stated that "it applies to all cases in which the issue is the time when a cause of action arises for the purpose of deter­mining the commencement of a limitation period. ... [it] provides that a cause of action arises for the purposes of a limita­tion period when the material facts on which it is based have been discovered, or ought to have been discovered by the plaintiff by the exercise of reasonable diligence." - See paragraphs 21 to 25.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limi­tation of Actions - Topic 15 ].

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - Aguonie was killed on October 4, 1993, when the tank of a water truck he was repairing suddenly lowered and crushed him - On January 27, 1995, a mechanical technologist retained by Aguonie's sur­vivors reported that the manufacturers' negligence may have caused the accident - On December 15, 1997, the survivors commenced a Family Law Act action against the manufacturers - The manufac­turers obtained summary judgment dis­missing the action for being statute barred (Family Law Act, s. 61(1); Trustee Act, s. 38(3)) - The motions judge held that the discoverability rule did not apply and the survivors were not entitled to an extension under s. 2(8) of the Family Law Act - On appeal, the Ontario Court of Appeal held that the motions judge exceeded his juris­diction - There was a genuine issue for trial regarding the applicability of the discoverability rule - See paragraphs 28 to 38.

Practice - Topic 5708

Judgments and orders - Summary judg­ments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Cases Noticed:

Nielsen v. Kamloops (City), Hughes and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 13].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 13].

Consumer's Glass Co. v. Foundation Co. of Canada Ltd. (1985), 9 O.A.C. 193; 51 O.R.(2d) 385 (C.A.), refd to. [para. 13].

Peixeiro v. Haberman (1995), 85 O.A.C. 2; 25 O.R.(3d) 1 (C.A.), affirmed (1997), 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429 (S.C.C.), refd to. [para. 15].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, refd to. [para. 15].

Coplen Estate et al. v. Bauman et al. (1989), 36 O.A.C. 321; 71 O.R.(2d) 308 (C.A.), refd to. [para. 18].

Toner v. Cherrington (1993), 64 O.A.C. 50; 13 O.R.(3d) 617 (Div. Ct.), refd to. [para. 18].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 30].

1061590 Ontario Ltd. v. Ontario Jockey Club et al. (1995), 77 O.A.C. 196; 21 O.R.(3d) 547 (C.A.), refd to. [para. 30].

T1T2 Limited Partnership v. Canada (1995), 23 O.R.(3d) 81 (Gen. Div.), affd. (1995), 24 O.R.(3d) 546 (C.A.), refd to. [para. 30].

Ford Motor Co. of Canada Ltd. v. Ontario Municipal Employees Retirement Board (1997), 104 O.A.C. 179 (C.A.), refd to. [para. 30].

Masciangelo v. Spensieri (1990), 1 C.P.C.(3d) 124 (Ont. H.C.), refd to. [para. 34].

Filion et al. v. 689543 Ontario Ltd. et al. (1994), 68 O.A.C. 389 (Div. Ct.), refd to. [para. 34].

Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R.(2d) 225 (Gen. Div.), refd to. [para. 34].

Ontario New Home Warranty Program v. 567292 Ontario Ltd. (1990), 71 O.R.(2d) 535 (H.C.), refd to. [para. 36].

Riviera Farms Ltd. v. Paegus Financial Corp. (1988), 29 C.P.C.(2d) 217 (Ont. H.C.), refd to. [para. 36].

Board of Education of Victoria County v. Bradstock, Reicher & Partners Ltd. et al. (1984), 4 O.A.C. 72; 46 O.R.(2d) 674; 44 C.P.C. 314 (Div. Ct.), refd to. [para. 38].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 2(8), sect. 61(4) [para. 11].

Limitations Act, R.S.O. 1990, c. L-15, sect. 47 [para. 11].

Rules of Civil Procedure, rule 20.04(2) [para. 30].

Trustee Act, R.S.O. 1990, c. T-23, sect. 38(1), sect. 38(3) [para. 11].

Counsel:

David B. Williams and J. Caskey, for the appellants;

J. Scott Maidment, for the respondent, Peabody Galion Material Handling Prod­ucts;

Bradley W. Stone, for the respondent, Crysteel Mfg. Inc.;

Carolyn Horkins, for the respondent, Mon­arch Hydraulic Inc.;

J. David Murphy, for the respon­dent/cross-appellant, R.J. Trucks.

This appeal was heard on December 10, 1997, before Carthy and Abella, JJ.A., and Borins, J.(ad hoc), of the Ontario Court of Appeal.

Borins, J.(ad hoc), delivered the following judgment for the Court of Appeal on Febru­ary 9, 1998.