Aguonie v. Galion Solid Waste Material Inc. et al., (1997) 34 O.T.C. 28 (GD)

• Judge: Cunningham, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: March 26, 1997
• Jurisdiction: Ontario
• Citations: (1997), 34 O.T.C. 28 (GD)

Aguonie v. Galion Solid Waste Material (1997), 34 O.T.C. 28 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. AP.046

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) v. Galion Solid Waste Material Inc. and Galion Dump Bodies operating as Peabody Galion Material Handling Products, Crysteel Mfg. Inc., Ron Strauss operating as R.J. Trucks and Monarch Hydraulic Inc. (defendants)

(Court File No. 21943)

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

Ontario Court of Justice

General Division

Cunningham, J.

March 26, 1997.

Summary:

On October 3, 1993, Lyman Aguonie was crushed to death when, allegedly, the water tank on a water tank truck he was repairing "suddenly lowered itself from an upright position pinning him between the cab of the truck and the water dump box." The wife, brother and minor children of Lyman Aguonie brought an action, pursuant to s. 61(1) of the Family Law Act, against various defendants for compensation for his wrongful death. The statement of claim was served on Lyman Aguonie's employer and others on March 30, 1994. A subsequent investigation conducted in 1995 by a mechanical technologist hired by the plaintiffs' lawyers revealed that the dump body of the truck was manufactured by Peabody, that the truck hoist system was made by Crysteel, that the truck came from R.J. Trucks and had likely been assembled by them and that the truck hoist was supplied by Monarch Hydraulic Inc. Peabody, Crysteel, R.J. Trucks and Monarch Hydraulic Inc. were sued. They had not been named as defendants in the first proceeding served on March 30, 1994. Peabody and R.J. Trucks learned of the action against them only in January 1996, when they received the statement of claim. The plaintiffs brought a motion seeking to amend the statement of claim to alter the names of certain defendants in the action against Peabody, Crysteel, R.J. Trucks and Monarch Hydraulic Inc. and this was consented to. The plaintiffs also sought alternatively an order extending the time for service of the amended statement of claim or an order granting an extension of the time prescribed for issuing the statement of claim against these defendants. The latter brought a cross-motion for summary judgment dismissing the plaintiffs' action as being statute-barred. The following points were at issue: 1 - Was the commencement of the two year limitation period under s. 61(4) of the Family Law Act delayed by the application of the discoverability rule?; 2 - Did s. 61(4) of the Family Law Act also bar the infant plaintiffs' action or did s. 47 of the Limitations Act (Ont.) apply to postpone the commencement of the limitation period provided in s. 61(4) of the Family Law Act to when the infant plaintiffs became of full age?; 3 - Was the adult plaintiffs' action barred by s. 61(4) of the Family Law Act or was the discretionary extension of time under s. 2(8) of the same Act available to those plaintiffs?

The Ontario Court (General Division) dismissed the plaintiffs' motion, allowed the defendants' cross-motion and dismissed the action. The court held: 1 - the discoverability rule did not apply; 2 - the infant plaintiffs' action was statute-barred and they could not benefit from s. 47 of the Limitations Act, and 3 - the adult plaintiffs' action was also statute-barred and they could not benefit from s. 2(8) of the Family Law Act because of absence of "special circumstances".

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - See paragraphs 11 to 25.

Limitation of Actions - Topic 9051

Persons under disability and exemptions and exclusions - Infants - Application of limitation periods - See paragraphs 26 to 28.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - See paragraphs 11 to 25.

Limitation of Actions - Topic 9616

Enlargement of time period - Application for - Special circumstances - See paragraphs 29 to 40.

Cases Noticed:

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

Nielsen v. Kamloops (City) 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; 37 C.C.L.T. 117; 31 D.L.R.(4th) 481, consd. [para. 13].

Peixeiro v. Haberman (1995), 85 O.A.C. 2; 25 O.R.(3d) 1 (C.A.), leave to appeal granted (1996), 204 N.R. 69; 95 O.A.C. 318 (S.C.C.), consd. [para. 15].

Desormeau v. Holy Family Hospital, Prince Albert, [1989] 5 W.W.R. 186; 76 Sask.R. 241 (C.A.), consd. [para. 16].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, addendum 157 N.R. 372; 66 O.A.C. 240; 106 D.L.R.(4th) 404; 18 C.L.L.T.(2d) 101; 18 C.P.C.(3d) 137; 47 M.V.R.(2d) 1, consd. [para. 18].

Butler Trucking Co. and Clark v. Brydges Estate and Workers' Compensation Board (Ont.) (1984), 4 O.A.C. 378; 46 O.R.(2d) 686 (Div. Ct.), consd. [para. 23].

Toner v. Cherrington (1993), 64 O.A.C. 50 (Div. Ct.), refd to. [para. 27].

Coplen Estate et al. v. Bauman et al. (1989), 36 O.A.C. 321; 71 O.R.(2d) 308 (C.A.), refd to. [para. 27].

Von Cramm v. Riverside Hospital, Andres and Wills (1986), 17 O.A.C. 218; 56 O.R.(2d) 700 (C.A.), refd to. [para. 28].

Reddy v. Oshawa Flying Club (1992), 11 C.P.C.(3d) 154 (Ont. Gen. Div.), refd to. [para. 28].

Scott Estate v. Wellington, [1995] O.J. No. 1753 (Gen. Div.), refd to. [para. 28].

Deaville v. Boegeman (1984), 6 O.A.C. 297; 48 O.R.(2d) 725 (C.A.), consd. [para. 32].

Giladi v. Areias (1990), 72 O.R.(2d) 461 (S.C. Master), consd. [para. 33].

Vilela Estate v. Amber Foods Ltd. (1991), 5 O.R.(3d) 124 (Gen. Div.), refd to. [para. 37].

Gatterbauer v. Ballast Holdings Ltd. (1986), 15 O.A.C. 299; 55 O.R.(2d) 91 (Div. Ct.), refd to. [para. 37].

Fagan v. Emery Investments Ltd. (1986), 15 O.A.C. 231; 54 O.R.(2d) 615 (C.A.), refd to. [para. 37].

McRitchie-Tenenbaum et al. v. Dyck (1996), 5 O.T.C. 388 (Gen. Div.), refd to. [para. 37].

Onishenko Estate v. Quinlan, [1972] S.C.R. 380, refd to. [para. 37].

Basarsky v. Quinlan - see Onishenko Estate v. Quinlan.

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 2(8) [para. 29]; sect. 61(4) [para. 11].

Highway Traffic Act, R.S.O. 1990, c. H-8, sect. 206(1) [para. 21].

Limitations Act, R.S.O. 1990, c. L-15, sect. 47 [para. 26].

Counsel:

David B. Williams, for the plaintiff, Mildred Aguonie;

J. Scott Maidment, for Peabody Galion;

John Ormston, for the defendant, Monarch Hydraulic;

J. David Murphy, for the defendant, Ron Strauss (R.J. Trucks);

Bradley Stone, for the defendant, Crysteel Manufacturing.

This motion and cross-motion were heard on March 5, 1997, by Cunningham, J., of the Ontario Court (General Division).

Cunningham, J., released the following decision on March 26, 1997.