Shukster v. Young et al., 2012 ONSC 4807

CITATION: Shukster v.

Young et al., 2012 ONSC 4807 COURT FILE NO.: 42621/03 DATE: 2013/01/21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) DANNIELLE SHUKSTER ) ) ) Gordon Good, for the Plaintiff ) Plaintiff ) ) - and - ) ) ) BRADLEY YOUNG, NANCY YOUNG, HAY MUTUAL INSURANCE COMPANY, CO- OPERATORS GENERAL INSURANCE COMPANY, and CUMIS GENERAL INSURANCE COMPANY and LIQUOR CONTROL BOARD OF ONTARIO, STORE #622 ) ) ))))) Jennifer Chapman, for the Defendant, Bradley Young Brian Smith, for the Defendant, Liquor Control Board of Ontario, Store #622 ) Defendants ) ) ) ) HEARD: August 20, 2012 LEACH, J. [ 1 ] Before me is a motion by the defendant Liquor Control Board of Ontario - Store #622, (“the LCBO”), requesting

summary judgment dismissing the plaintiff’s claims against it. [ 2 ] In broad terms, the LCBO advances two grounds for the motion, suggesting that both are amenable to determination by

summary judgment but that either would warrant an order granting the relief requested. In particular, the LCBO contends that: i. the plaintiff’s claims are barred by the statutory limitation period pleaded and relied upon by the LCBO in its statement of defence; and ii. the evidence is insufficient in any event to substantiate the claim the plaintiff has made against the LCBO, such that it has no chance of success. [ 3 ] The motion is opposed by the plaintiff.

Counsel retained by the Motor Vehicle Accident Claims Fund to represent the defendant Bradley Young, (the only other remaining defendant to the action), filed evidence for use on the motion but otherwise took no formal position and made no submissions. [ 4 ] The brevity of the description set out above unfortunately does not reflect the nature of the exercise required for a proper determination of the motion. In particular, the two-pronged nature of the LCBO’s argument and the plaintiff’s response requires

examination, from two perspectives, of events and evidence generated and compiled over a period of ten years. BACKGROUND [ 5 ] In the course of my reasons, I will return in more detail to considerations and evidence having particular relevance to each of the suggested grounds for

summary judgment. [ 6 ] However, to put that information in proper context, (particularly insofar as the limitation issue is concerned), an outline of this matter’s extended and somewhat complicated history is required. Therefore, by way of background and overall chronology:

a) This litigation stems from a single vehicle accident in the Town of Hensall during the early morning hours of August 29, 2002. The vehicle was being operated by the defendant Bradley Young, (“Young”, who was 16 at the time). It belonged to Young’s mother, and had been taken without her consent. (Young had broken into the home of his parents while they were away, and taken keys to the vehicle.)

b) When the accident occurred, there were two passengers in the vehicle: Alex Youmans, (“Youmans”, who was 18 at the time), and the plaintiff Danielle Shukster, (born March 21, 1985, and 17 at the time). The vehicle collided with a tree. As a result, the plaintiff is alleged to have sustained serious injuries, including a traumatic brain injury that has substantially impaired her memory of events leading to the accident while also making it more difficult for her to provide instructions to counsel.

c) The police responded to the accident. Young was charged under the Criminal Code with taking a motor vehicle without consent, and with dangerous operation of a motor vehicle causing bodily harm. In due course, the criminal proceedings were resolved by Young’s plea of guilty to the latter charge.

d) Although Young was not charged with any alcohol related offences, he had consumed alcohol shortly before the accident.

e) On September 18, 2003, the plaintiff issued her original statement of claim. Named defendants included Young, Young’s mother and three different insurance companies; i.e., the putative insurers of Young’s mother, the plaintiff’s father, and the plaintiff’s mother. (The insurers were alleged to have coverage responsibilities pursuant to the uninsured, underinsured or family protection endorsement provisions of the various policies.) The pleading did not name the LCBO as a defendant. However, it did allege that Young was operating the vehicle when his ability to drive was impaired by alcohol.

f) Following service of the claim, counsel were retained by all defendants, a number of whom initiated crossclaims against Young. However, between September of 2003 and August of 2009, progress of the action was delayed by further coverage and representation issues concerning Young. In particular: i. The circumstances suggested a distinct possibility that, of the originally named defendants, Young alone might be the only one in respect of whom the plaintiff had a viable claim. ii.

Given Young’s age, circumstances and lack of insurance, the plaintiff’s ability to recover anything for Young’s liability seemed dependent on the Motor Vehicle Accident Claims Act , R.S.O. 1990, c.M.41. This established the Motor Vehicle Accident Claims Fund (“the Fund”) as a “payor of last resort”; i.e., a source of minimum recovery for people injured in automobile accidents when no automobile insurance exists to respond to the claim. iii. Having regard to its constituent legislation, the Fund nevertheless appoints legal counsel to defend an alleged uninsured defendant only if he or she does not file a defence.

In particular, the uninsured defendant must be served with the claim and noted in default before the Fund acquires status and files a defence on his or her behalf. iv. Notwithstanding his guilty plea in the related criminal proceedings, Young initially responded to service of the plaintiff’s civil claim by filing a statement of defence, (on October 31, 2003). This effectively prevented the Fund’s involvement in the litigation, (as the Fund explained when responding to inquiries from plaintiff counsel in February of 2004). v.

Between February of 2004 and July of 2005, plaintiff counsel made efforts to facilitate involvement of the Fund, (and thus some measure of recovery for the plaintiff), by explaining the situation to Young’s counsel of record. Despite indications of intended co-operation, steps voluntarily taken by Young’s lawyers during this period effectively left the impediment to Fund participation intact.

In particular, instead of Young’s defence being formally withdrawn, there initially was a formal change in Young’s solicitors, followed by Young’s delivery of a notice of intention to act in person, (delivered in July of 2005). As his formal defence remained in place, Young could not be noted in default. Responding to further inquiries, the Fund then apparently indicated that it could and would involve itself in the litigation only if Young failed to attend a discovery examination, thereby generating a certificate of non-attendance. vi.

Between August of 2005 and September of 2006, plaintiff counsel tried to contact Young, explain the Fund situation, and obtain his co-operation. (There were also communications with counsel for the other named defendants, advising them of the situation.) However, Young remained unresponsive. Eventually, a discovery examination of Young was scheduled for September 27, 2006, and Young was served with a corresponding notice of examination. vii. To the surprise of counsel, Young then presented himself for discovery examination on September 27, 2006.

Instead of proceeding immediately with Young’s examination, counsel first took the opportunity to explain the Fund situation to Young and request his co-operation; i.e., to secure voluntary withdrawal of his existing defence in order to facilitate the Fund’s involvement. In particular, it seems that counsel for the remaining defendants asked plaintiff counsel to retire before speaking with Young. Young apparently also spoke by telephone with a Fund representative.

In the result, Young indicated his desire and intention to seek further independent legal advice, and/or communicate further with the Fund, to sort out his position. In light of that discussion, all concerned agreed to defer Young’s discovery examination for the time being. viii. Between September of 2006 and January of 2007, however, Young either failed to co-operate or was slow in doing so. In an

effort to move matters forward, plaintiff counsel communicated again with Young’s last counsel of record, as well as the Fund. ix. On or about January 25, 2007, Young finally delivered a notice of withdrawal of defence. x. Between February and June of 2007, steps then were taken to note Young in default, advise the Fund accordingly, andsecure the Fund’s formal participation in the litigation. Fund appointed counsel then delivered a statement of defence for Young onJune 7, 2007. xi.

Between June of 2007 and August of 2009, the litigation progressed slowly as Fund counsel was brought up to speed,pleadings were formalized, productions and information were exchanged, and counsel addressed possible resolution of the claims againstall defendants other than Young prior to discovery examinations. (There was lingering uncertainty about coverage, complicated by theplaintiff’s receipt of accident benefits from Mrs. Young’s insurer.) Plaintiff counsel and Fund counsel also discussed the possibility ofsettlement.

Following co-ordination between the numerous lawyers involved, discovery examinations eventually were scheduled forSeptember 9, 2009.

g) On August 26, 2009, plaintiff counsel confirmed receipt of instructions to formally discontinue the claims against alldefendants other than Young. (A consent order formally dismissing the claims without costs eventually was processed on December 7,2009. In the meantime, it was agreed that the examinations scheduled for September of 2009 would proceed without the participation ofdefendants other than Young.)

h) On September 9, 2009, the plaintiff attended for her examination, and was questioned by Fund counsel representing Young.

i) On the same day, (September 9, 2009), Young attended for his examination, and was questioned by the plaintiff’s lawyer. During the course of that examination, Young indicated that the alcohol he consumed before the accident had been purchased theafternoon before from the LCBO store in Hensall using “a fake ID” supplied to him by Youmans. (As noted below, the evidence beforeme indicates this was the first actual disclosure of such information to the plaintiff or her counsel since the accident in August of 2002.)

j) On September 29, 2010, the plaintiff formally moved for an order permitting amendment of her pleading to add the LCBO asa defendant. The order was obtained on October 16, 2010. The precise content of the plaintiff’s allegations against the LCBO is set outbelow. Generally, however, the plaintiff alleges that the LCBO was negligent in permitting the sale of alcohol to a minor, (Young).

k) On December 8, 2010, the LCBO delivered a statement of defence, which included an express allegation that the plaintiff’sclaim against it was statute-barred for failure to commence an action within the applicable limitation period. The LCBO’s pleading alsoincluded a denial of negligence. In particular, the LCBO specifically denied that it knowingly sold alcohol to a minor, and asserted that ittook all reasonable care in the circumstances, (including inspection of the identification presented by Young), to ensure that Young wasof legal age to purchase alcohol.

In that regard, the LCBO specifically relied on various provisions of the Liquor Licence Act, R.S.O.1990, c.L.19, (discussed in more detail below).

l) On January 25, 2011, an LCBO representative, Pamela Robertson (“Robertson”), the lone employee working at the HensallLCBO store when Young is said to have purchased alcohol there, attended for a discovery examination by the plaintiff’s lawyer. On thesame day, the plaintiff underwent a further oral discovery examination, this time by the LCBO’s lawyer.

m) The LCBO’s motion for

summary judgment initially was returnable on November 29, 2011. After a number of adjournments,the motion came before me for hearing.

SUMMARY JUDGMENT – GENERAL PRINCIPLES [7] The LCBO moves pursuant to Rule 20.01(3) of the Rules of Civil Procedure, which reads as follows: 20.01

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence forsummary judgment dismissing all or part of the claim in the statement of claim. [8] Pursuant to the provisions of Rule 20.02, a responding plaintiff then is obliged to go beyond pleaded allegations to set out, “inaffidavit material or other evidence”, specific facts indicating a genuine issue requiring trial. [9] The provisions of Rule 20.04(2) address disposition of such a

summary judgment motion, and indicate that the court shall grantsummary judgment “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. [10] Pursuant to Rule 20.04(2.1), a judge making that determination must “consider the evidence submitted by the parties”, and mayexercise any of the following powers, “unless it is in the interest of justice for such powers to be exercised only at trial”: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3.

Drawing any reasonable inference from the evidence. [11] These provisions of Rule 20.04(2) and 20.04(2.1), along with the further power conferred by Rule 20.04(2.2) to order and controlthe presentation of additional oral evidence, reflect and incorporate amendments implemented on January 1, 2010. [12] Those amendments were the subject of extended consideration by our Court of Appeal in Combined Air Mechanical Services Inc.v. Flesch, 2011 ONCA 764 , [2011] O.J. No. 5431 (C.A.)[1], which addressed many aspects of the “new” Rule 20 in a detailedmanner.

For present purposes, I believe the observations and guidance contained therein may be summarized as follows:

a) Limitations of

summary judgment - Importance of trials:

While acknowledging that the rule amendments were intended to promote

summary judgment as a means of resolving litigation more expeditiously and with comparatively less cost, (removing many of the constraints established by earlier jurisprudence), the Court of Appeal emphasized that the purpose of the Rule 20 amendments was “to eliminate unnecessary trials, not to eliminate all trials” [2] . In certain circumstances, a full trial process will still be essential to accomplish that goal; i.e., because of the many qualitative advantages it offers compared to the limitations necessarily inherent in the

summary judgment process, (even in its expanded form). In the context of addressing motions for

summary judgment, the guiding consideration is whether the more limited

summary judgment process is capable of providing an “ appropriate means for effecting a fair and just resolution of the dispute before the court”. [3] In some cases, it will be “safe” to determine the matter via the

summary judgment process. In others, neither the motion record nor a motion record supplemented via the new

summary judgment “tools” will be adequate to displace the need for pursuing a just result through the full trial process. This “pivotal determination” has to be made on a “case-by-case basis” . [4]

b) Types of cases amenable to

summary judgment: Emphasizing that the following categorization was general, non-exhaustive, not mutually exclusive, and not even necessary for proper analysis by a

summary judgment motions judge, the Court of Appeal suggested there were three types of cases amenable to

summary judgment: 1. Cases where the parties agree it would be appropriate to determine an action by way of a

summary judgment motion, (although the court maintains an overriding discretion); 2. Cases where claims or defences are shown to be without merit, (possibly through use of the expanded powers provided by the amended rule); and 3. Cases where the motions judge is satisfied “that the issues can be fairly and justly resolved” by exercising the expanded powers provided by the amended rule. [5] c) “Interest of justice” considerations, and the new “full appreciation test”: The expanded powers offered by the amended

summary judgment rule, (to weigh evidence, evaluate credibility and draw reasonable inferences), may only be exercised in the “interest of justice”. The Court of Appeal regarded this as “limiting language” that “guides the determination” of when the powers should be exercised, and reflects the aim of the civil justice system to provide a “just result in disputed matters through a fair process”. Having regard to the inherent limitations of the

summary judgment process compared to a full trial, the Court of Appeal held that, in deciding whether to exercise the expanded powers offered by the amended

summary judgment rule, the motion judge must ask the following question: “Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this full appreciation only be achieved by way of a trial?” [6]

d) Hallmarks of cases where such a “full appreciation” is not possible and

summary judgment is inappropriate: In cases calling for “multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record”, a

summary judgment motion generally cannot serve as an adequate substitute for the trial process. The motion judge “simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings”, the “full appreciation test is not met”, and the “interest of justice” requires a trial. [7]

e) Hallmarks of cases where such a “full appreciation” is possible and

summary judgment is appropriate: Not surprisingly, satisfaction of the “full appreciation” test will be more likely in cases lacking the above complications; e.g., in “document-driven cases with limited testimonial evidence”, “cases with limited contentious factual issues”, and “cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues”. [8]

f) Evidentiary obligations – Timing of

summary judgment motions: The Court of Appeal emphasized that adoption of the new “full appreciation” test does not alter the now familiar and well-established evidentiary obligations on parties involved in a

summary judgment. In particular, each side is still required to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried, and is not entitled to “sit back and rely on the possibility of more favourable facts developing at trial”. [9] [ 13 ] With this guidance in mind, I now turn to successive consideration of the alternate bases on which the LCBO suggests it would be appropriate to grant

summary judgment dismissing the plaintiff’s claims against it: alleged expiry of the applicable limitation period, and the alleged inability of the plaintiff to substantiate her claim on the merits in any event. LIMITATION PERIOD - GENERAL CONSIDERATIONS [ 14 ] The imposition of limitation periods reflects serious concern about practical problems that invariably arise when courts are called upon to adjudicate stale claims with stale testimony, creating the very real risk of bad trials and poor decisions. Memories fade, witnesses die and or move away, and documentation will be destroyed.

At some point, evidence becomes too unreliable to form a found basis for adjudication, and a limitation period should prevent the claim from being adjudicated at all. [10] [ 15 ] As our Court of Appeal therefore has emphasized on numerous occasions, limitation periods therefore “are not enacted to be ignored”.

Rather, with some allowance for difficulties that might be encountered in discoverability, plaintiffs are “required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence … claim can be based”. [11] [ 16 ] Where limitation period questions arise, it accordingly is important to identify the relevant limitation period (if any), and the time at which it commenced to run, having regard to discoverability and the plaintiff’s obligation to exercise due diligence.

[17] In Ontario, the starting point for such analysis generally now is found in sections 4 and 5 of the Limitations Act, 2002, S.O. 2002,c.24, which for present purposes read in part as follows: Basic Limitation Period 4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after thesecond anniversary of the day on which the claim was discovered. Discovery 5.

(1) A claim is discovered on the earlier of, a. The day on which the person with the claim first knew, i. that the injury, loss or damage had occurred, ii. that the injury, loss or damage was caused by or contributed to by anact or omission, iii. that the act or omission was that of the person against whom the claimwas made, and iv. that, having regard to the nature of the injury, loss or damage, aproceeding would be an appropriate means to seek to remedy it; and b. The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to haveknown of the matters referred to in clause (a). Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(

a) on the day the act or omissionon which the claim is based took place, unless the contrary is proved. [18] Numerous cases have considered and applied these provisions in the context of

summary judgment motions, (brought afteramendment of Rule 20 in January of 2010), requesting dismissal of claims based on alleged expiry of applicable limitation periods. See,for example: White v. Mannen, 2011 ONSC 1058 , [2011] O.J. No. 1039 (S.C.J.); Ferrara v. Lorenzetti Wolfe Barristers andSolicitors, 2012 ONSC 151 , [2012] O.J. No. 135 (S.C.J.); and Sian v. Kooner, [2012] O.J. No. 807 (S.C.J.).[12] [19] In my opinion, these decisions and the authorities cited therein, along with the provisions themselves, indicate the following: • Subsection 5(1)(

a) contains a subjective test that focuses on the plaintiff’s actual knowledge of the types of facts enumerated underthat provision. Evidence that the plaintiff had actual knowledge of such matters will trigger operation of the limitation period. However,a lack of such evidence and/or a denial of such actual knowledge will not suffice to prevent a finding that operation of the limitationperiod was triggered, if other provisions of

section 5 indicate that such a finding is appropriate. • In particular, subsection 5(1)(

b) contains a second test that is objective, and requires the plaintiff’s knowledge to be assessed inrelation to a standard asking when a reasonable person, with the plaintiff’s abilities and in the plaintiff’s circumstances, ought to havehad knowledge of the matters enumerated in subsection 5(1)(b). This in turn usually leads to a consideration of the steps such a personwould have taken to acquire such knowledge. In effect, the question becomes one of determining when the plaintiff, in the particularcircumstances of the case, ought to have learned of such matters.

One must ask why the plaintiff and his/her solicitor were unaware ofsuch matters until some later point. The applicable standard is that of a “reasonably prudent person in pursuing the facts”. • Moreover, subsection 5(2) goes further, and establishes a rebuttable presumption that the plaintiff did know of such matters on theday the underlying act or omission took place. The burden is on the plaintiff to rebut that presumption.

In other words, once a defendanthas pleaded a limitations defence, the evidentiary burden is on the plaintiff to prove that the claim was issued within the limitationperiod. • Pursuant to Rule 20, a party moving for

summary judgment retains the overall burden of showing that there is no genuine issuerequiring trial. However, where a defendant moves for

summary judgment in relation to a statutory limitation period, the evidentiaryburden as to the discoverability issue and under Rule 20 effectively shifts to the responding party under section 5(2). In particular, theplaintiff must adduce evidence sufficient to demonstrate that there is a genuine issue, requiring trial, concerning operation of thelimitation period pursuant to subsections 5(1) and 5(2).

In particular, a plaintiff seeking to defeat operation of the limitation period onsuch a motion has the onus to rebut the presumption in s.5(2), or at least demonstrate that there is a genuine issue requiring trial as towhether that presumption is rebutted. • Such determinations are fact driven, and must be decided based on the particular circumstances of each case. [20] The above provisions and principles focus on the basic limitation period and considerations of discovery that might delaycommencement of its operation. [21] However, one also must bear in mind that the required approach is tempered and modified by numerous other provisions of the

Limitation Act, 2002, supra. [22] These include

section 6 of the Limitations Act, supra, which provides that the “limitation period established by

section 4 does notrun during any time in which the person with the claim … is a minor … and is not represented by a litigation guardian in relation to theclaim”.[13] [23] Moreover, where a claim is based on alleged acts or omissions that took place before January 1, 2004, (when the currentlegislation came into force), application of the general approach to limitation periods mandated by the current legislation also istempered by the “transition” provisions found in

section 24 of the Limitations Act, 2002, supra. Those provisions read in part as follows: Definition 24.

(1) In this section, “former limitation period” means the limitation period that applied in respect of the claim before January1, 2004. Application

(2) This

section applies to claim based on acts or omissions that took place before January 1, 2004, and in respect of which noproceeding has been commenced before that date. Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim. Former limitation period unexpired

(4) If the former limitation period did not expire before January 1, 2004, and if no limitation period under this Act wouldapply were the claim based on

an act or omission that took place on or after that date, there is no limitation period. Same

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would applywere the claim based on

an act or omission that took place on or after that date, the following rules apply: 1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date. 2. If the claim was discovered before January 1, 2004, the former limitation period applies. [24] In that regard, our Court of Appeal has held that, for the purposes of s.24(2) of the Limitations Act, 2002, supra, the word“proceeding” cannot sensibly be interpreted without reference to the party against whom an action, (challenged by alleged expiry of alimitation period), has been brought.

In other words, it is not enough that a plaintiff has commenced a proceeding against someone inrelation to an incident. A “proceeding”, in the sense required for s.24(2), must be in respect of the acts or omissions of the targeteddefendant in question. See St. Jean v. Cheung, 2008 ONCA 815 , [2008] O.J. No. 4862 (C.A.), at paragraphs 30 and 31.

LIMITATION PERIOD - EVIDENCE [25] Much of the extensive material filed before me essentially was tendered in relation to the limitation period issue. [26] In particular, both the plaintiff and the LCBO rely on various aspects of the extended litigation history in support of theirrespective arguments as to when the plaintiff and her counsel knew or ought to have known that she had a claim against the LCBO. [27] I have attempted to summarize some of that voluminous record and very detailed evidence in the extended background outlinedabove. [28] However, in considering the LCBO’s request for

summary judgment based on alleged expiry of the applicable limitation period,I also have particular regard to other evidence relating to the involvement of alcohol and the LCBO in the accident, and efforts that weremade or could have been made to investigate and obtain such information. This includes the following:

a) A motor vehicle accident report was prepared by investigating police officers shortly after the accident. Although it wassuggested that the report contains no reference to the consumption of alcohol, this is not entirely accurate. While it contains no words orcomments indicating alcohol consumption by Young, the template of codes used by the police in preparing such reports makes it clearthat such an indication effectively was made.

In particular, box 35 of the standard form report, which refers to “Driver/PedestrianCondition”, has been filled with a “02” notation, which indicates that the driver “had been drinking”. Elsewhere in the standard formreport, in the “Yes” and “No” boxes next to the words “breathalyzer” and “blood test”, the “Y” box has been marked.

b) In a statement made to police on the day of the accident, Young admitted that he had consumed alcohol before driving. Hisstatement indicated the amount and type of alcohol he had consumed, (“Royal Reserve”), but not its source or where it had beenconsumed.

c) On October 1, 2002, Young’s mother provided a statement to her insurer indicating that the alcohol consumed by Young priorto the accident had been obtained from Youmans’ mother.

d) On May 30, 2003, plaintiff counsel was advised that Young had entered a guilty plea in criminal proceedings relating to theaccident. Some ten weeks later, (on August 18, 2003, plaintiff counsel wrote to the police, requesting production of the investigatingofficer’s notes and making a request for further disclosure pursuant to the Freedom of Information Act. Further steps in that regard were

taken in September of 2003.

e) From the outset of this litigation, (commenced by statement of claim issued on September 18, 2003), the plaintiff formally has asserted that Young’s consumption of alcohol was a cause of the accident.

f) From October of 2003 to February of 2005, plaintiff counsel followed up with requests seeking further disclosure of documentation and information from the police, (e.g., officer notes and witness statements), disclosure of the Crown brief assembled for the related criminal prosecution of Young, (which necessitated plaintiff counsel obtaining written authorization from Young to the disclosure), and a transcript of the criminal proceedings against Young.

g) On July 28, 2004, plaintiff counsel obtained, (in the course of proceedings seeking accident benefits for the plaintiff), a copy of the aforesaid statement provided by Young’s mother to her insurer on October 1, 2002, indicating that the relevant alcohol had been obtained from Youmans’ mother.

h) On March 1, 2005, plaintiff counsel received disclosure of the Crown brief. The contents, (which included details of Young’s breathalyzer test results and a statement taken from Youmans), disclosed that Young had consumed alcohol and the type of alcohol consumed, but did not identify its source.

i) Fund counsel first attempted to contact Young by way of a letter sent February 5, 2007. Young did not respond, necessitating further letters to Young sent on June 7, 2007, April 21, 2008, and January 2, 2009, asking Young to contact Fund counsel “to discuss details of [the] accident”. Young apparently did not respond in any way until he telephoned Fund counsel on January 8, 2009.

j) Fund counsel currently has no specific recollection of his telephone call with Young on January 8, 2009, but he documented details of his conversation with Young in a contemporaneous memo. According to the memo, Young indicated that the alcohol consumed prior to the accident has been obtained from “Danielle’s mother”; i.e., the mother of the plaintiff. Young also told Fund counsel that, when the alcohol ran out, “the plan was to drive into Crediton to get more alcohol from Alex’s mother”; i.e., the mother of Youmans. Young apparently gave no indication that the alcohol consumed prior to the accident had been purchased from the LCBO.

k) By the time of the discovery examinations on September 9, 2009, the plaintiff and her counsel had not yet been supplied with a sworn affidavit of documents by Young or Fund counsel. However, the plaintiff and her counsel had received disclosure of the Crown brief.

l) During her discovery examination on September 9, 2009, the plaintiff indicated the following: i. Youmans’ mother lived in Crediton, (a community approximately 20 km from Hensall), and was the manager of a bar in Grand Bend, (a community approximately 30 km from Hensall). She had allowed her son and the plaintiff to live with her before the couple relocated to Hensall shortly before the accident. ii. Because of the accident and her head injury, the plaintiff has problems with her memory. She has no recollection of the accident.

She recalls drinking alcohol in her apartment with Youmans and Young that evening, but cannot remember the source of the alcohol. She has no memory of Young going to a liquor store, or any discussion about Young going to purchase alcohol with a “fake ID”. She did not think that Youmans ever had such a document. iii. The plaintiff did recall Young showing her, at some unspecified time, a driver’s licence which she believed to be his. iv. The plaintiff and Youmans had a child together, but separated in 2004 following a domestic dispute that resulted in formal non-association provisions.

The plaintiff indicated that everything about her relationship with Youmans was “stressful”. She also said that Youmans had never told her anything about various matters relating to the accident; e.g., how she came to be in the car, or how the car was obtained. v. Since the accident, the plaintiff has had “nothing to do with” Young, apart from an isolated occasion when he came to retrieve clothing from the plaintiff’s residence. On that occasion, the plaintiff did not speak with Young.

m) In addition to Young’s indication of purchasing alcohol from the LCBO using “fake ID”, his discovery evidence on September 9, 2009, included the following: i. Youman’s mother had a reputation as a “so-called bootlegger”, from whom alcohol could be obtained. ii. At the hospital shortly after the accident, Youmans asked Young to mislead the police during the course of their investigation. Young agreed, and admittedly then lied to the police. He decided to tell the truth only during the course of the plaintiff’s subsequent civil litigation.

n) During Young’s examination on September 9, 2009, the documented remarks of plaintiff counsel indicate surprise in response to Young’s indication of having consumed alcohol purchased from the LCBO using false identification. These included comments that the “case just got a whole bunch more complicated”, and an express indication of being “somewhat taken by surprise about this alcohol consumption”, thereby preventing more fulsome examination on that point for the time being and reservation of a right to ask further questions “arising out of further investigation or productions with respect to that particular issue”.

o) Through statements made to plaintiff counsel and affidavit evidence filed in relation to the motion before me, Fund counsel also confirmed first learning of the alleged LCBO alcohol purchase by Young at the time of Young’s oral discovery examination on September 9, 2009. Up until that point, it was the understanding of Fund counsel that the alcohol consumed by Young prior to the accident had been obtained from the plaintiff’s mother.

p) During her second discovery examination, (on January 25, 2011), the plaintiff indicated, (directly or through answers provided

by plaintiff counsel), the following: i. With the passage of time, the plaintiff has recovered no further memories concerning the source of the alcohol consumed prior to the accident. ii. Young’s indication of having purchased alcohol from the LCBO came to the plaintiff’s attention only after his examination in September of 2009. iii. At the time of Young’s examination, Fund counsel expressed “shock and amazement” in relation to the indication that the relevant alcohol has been purchased by Young from the LCBO. iv.

Although the plaintiff was seeing Youmans “all the time”, (at the time of her second examination), they never talked about the accident or the events that occurred before the accident. In particular, she and Youmans had never discussed the source of the alcohol consumed prior to the accident. v. The plaintiff learned only sometime after the accident that Young was under the age of 19 when it occurred. vi. After Young’s examination, the investigating police officer was interviewed and asked whether he had obtained any information about the source of alcohol consumed before the accident.

The officer indicated that he had no record of ever having asked that question; “it wasn’t relevant to his investigation”, and he therefore “didn’t care” what the answer might have been.

q) During the plaintiff’s second discovery examination, plaintiff counsel was asked by LCBO counsel to provide details of the steps taken by the plaintiff and her counsel to determine the source of the relevant alcohol. The question was taken under advisement, and to date has not been formally answered.

r) On November 21, 2011, plaintiff counsel received a report commissioned from a toxicologist, (Dr Michael Ward of Forensic Information Services), providing expert opinion as to the impact Young’s indicated alcohol consumption would have had on Young and his ability to operate a motor vehicle at the time of the accident. According to other evidence filed on the plaintiff’s behalf, she and her counsel were not aware of that impact prior to receipt of Dr Ward’s report. LIMITATION PERIOD - ANALYSIS [ 29 ] A determination of whether

summary judgment should be granted in this particular case, based on expiry of the applicable limitation period, obviously should start with identification of the relevant limitation period. [ 30 ] However, this too unfortunately is not a straightforward exercise, owing to the accident having happened many years ago, the passage of intervening legislation, the plaintiff’s date of birth, and the time at which she correspondingly reached her age of majority. Identification of Relevant Limitation Period [ 31 ] In the case before me:

a) The injury, loss or damage underlying the plaintiff’s claim occurred at the time of the motor vehicle accident on August 29, 2002, (a date self-evidently before Ontario’s “new” limitation period legislation came into effect on January 1, 2004), and no proceeding in respect of the alleged acts or omissions of the LCBO had been commenced by the plaintiff before January 1, 2004.

b) Pursuant to s.24(2) of the Limitations Act, 2002 , supra , the transition provisions of

section 24 therefore apply to the plaintiff’s claim against the LCBO.

c) The “former limitation period” that would have applied to such a claim generally was the two year limitation period imposed by

section 206 of the Highway Traffic Act , R.S.O. 1990, c.H.8, (the relevant portion of which provided that “no proceeding shall be brought against a person for the recovery of damages occasioned by a motor vehicle after the expiration of two years from the time when the damages were sustained”), and that former limitation period had not expired before January 1, 2004.

d) The matter accordingly is governed by the transition provisions of s.24(5), as the former limitation period applicable to such a claim had not expired before January 1, 2004, and had the relevant act or omission taken place after that date, it would have been subject to the basic limitation period set forth in the Limitations Act, 2002 , supra . [ 32 ] Therefore, applying s.24(5) of the Limitations Act, 2002 , supra , (“the Act”), to the case at hand:

a) If the plaintiff’s claim against the LCBO was not discovered before January 1, 2004, the Act applies as if the underlying act or omission had taken place on that date; (i.e., making it subject to the two year basic limitation period established by s.4 of the “new” legislation, which runs from the date on which the claim was “discovered”). As the plaintiff already had achieved her age of majority by January 1, 2004,

section 6 of the Act would have no relevance or application, as the basic limitation period established by

section 4 would not run, on the facts, during any time in which the plaintiff was a minor.

b) If the plaintiff’s claim was “discovered” after the accident but before January 1, 2004, the applicable limitation period is the former limitation period; i.e., the two year limitation period established by Highway Traffic Act , supra . Barring other considerations, that two year limitation period ostensibly would have commenced on August 29, 2002.

However, even prior to enactment of the Limitations Act, 2002 , supra , running of that limitation period would have been postponed at least until the plaintiff attained her age of majority on March 21, 2003. [14] Moreover, its running also might have been postponed still further, (to a date between the plaintiff’s eighteenth birthday and January 1, 2004), by operation of the common law principle of discoverability confirmed by the Supreme Court of Canada in

Peixeiro v. Haberman , supra .

However, if this branch of s.24(5) applies at all, (because of the claim’s discovery before January 1, 2004), by definition the claim will have been “discovered” no later than later than December 31, 2003, and the applicable two year limitation period expired no later than December 31, 2005, without the plaintiff having commenced a claim against the LCBO. [ 33 ] No formal steps were taken by the plaintiff to advance a claim against the LCBO until the bringing of her motion to amend her statement of claim on September 29, 2010; i.e., over eight years after the underlying accident on August 29, 2002, and well beyond any of the ostensible two year limitation periods outlined above. [ 34 ] In effect, the plaintiff’s claim against the LCBO therefore will be barred by an applicable limitation period in any event unless it was not “discovered” until sometime after September 29, 2008; i.e., less than two years prior to the taking of formal measures to commence her claim against the LCBO.

Discovery Issue and Positions [ 35 ] Having regard to the legislative provisions and authorities described above, and the particular circumstances of this case, the required overall approach to the resulting “discovery” issue is as follows:

a) The plaintiff’s claim must be considered “discovered” on the day when she “first knew” of the matters set out in sub-paragraph 5(1)(

a) of the Act. In this case, there is no question that the plaintiff was aware of her injury, loss and damage on the date of the accident. The primary focus is on when she first knew that this possibly resulted from

an act or omission of the LCBO; i.e., the factors outlined in ss.5(1)(a)(ii) and (iii) of the Act. However, there also effectively is a suggestion, pursuant to either s.5(1)(a)(ii) and (iv), that she did not know that Young’s consumption of alcohol allegedly supplied by the LCBO was a cause of the accident, or that a proceeding in that regard would be appropriate, until receipt of the expert toxicologist report on November 21, 2011.

b) The LCBO apparently does not dispute the evidence indicating that the plaintiff and her counsel had no actual knowledge of the LCBO’s alleged conduct and role in the accident prior to Young’s discovery examination on September 9, 2009, although it does question the suggestion that Young and her counsel were not aware of the alleged causative role played by the alcohol, or that a proceeding against the LCBO was appropriate, until receipt of the toxicologist’s report on November 21, 2011.

I agree that the latter suggestion is contradicted and belied by the steps actually taken by the plaintiff to commence a formal proceeding against the LCBO on September 29, 2010, well before receipt of the toxicologist’s report. This confirms that knowledge of the alleged conduct and role of the LCBO was sufficient to make the plaintiff aware that a proceeding against the LCBO was appropriate in the circumstances. The true focus therefore is on the plaintiff’s knowledge of the LCBO’s involvement.

c) Pursuant to s.5(1)(

b) of the Act, if the plaintiff and her counsel had no actual knowledge of the alleged conduct and role of the LCBO prior to Young’s examination on September 9, 2009, the question then becomes one of determining whether a reasonable person, with the plaintiff’s abilities and in the plaintiff’s circumstances, still ought to have had knowledge of those matters at an earlier date, (and in particular, more than two years prior to September 29, 2010, when formal steps were initiated to commence her claim against the LCBO).

d) Pursuant to s.5(2) of the Act, the plaintiff is presumed to have known all of the matters outlined in s.5(1)(a), including knowledge of the alleged negligent sale of alcohol to Young by the LCBO and its suggested role in causing the accident, on the day of the accident; i.e., on August 29, 2002. The burden lies on the plaintiff to rebut that presumption, (even though the overall burden on a

summary judgment motion rests with the LCBO). [ 36 ] In moving for

summary judgment on the basis of the limitation period, the LCBO contends that the plaintiff has not rebutted the presumption that she and her counsel knew or ought to have known of the LCBO’s alleged conduct and role in the accident well before any two year period prior to commencement of the plaintiff’s claim against the LCBO. [ 37 ] In particular, the LCBO says the plaintiff has not rebutted the presumption by leading evidence satisfying her positive obligation to demonstrate that she and her counsel were reasonably diligent in identifying all potentially liable parties, including the LCBO. [ 38 ] To the contrary, the LCBO says that, although the readily apparent circumstances of underage drinking and driving warranted a reasonably diligent investigation to determine the source of the alcohol consumed by Young, (identified by the plaintiff herself as having played a causative role in the accident, from the outset of the formal litigation), there is no evidence that the plaintiff or her counsel took appropriate steps in that regard over the extended period between the accident and the two years prior to initiating a formal claim against the LCBO.

It relies in particular on:

a) The failure to ask Youmans about the source of the alcohol, notwithstanding the plaintiff’s relationship and contact with Youmans in the period immediately following the accident, and at later times;

b) The failure to ask Young about the source of alcohol prior to his discovery examination on September 9, 2009, (e.g., during the time of Young’s formal self-representation when plaintiff counsel wrote directly to Young requesting his co-operation in securing involvement of the Fund and Young’s authorization for release of the Crown brief, or during the face-to-face meeting with Young that took place on September 27, 2006, prior to his previously scheduled discovery examination being aborted); and

c) Young’s willingness to indicate the source of the alcohol when he was asked about the source of alcohol during the discovery examination in September of 2009, (which the LCBO takes as an indication that Young would have responded in a similar manner if asked directly about such matters at an earlier date). [ 39 ] More generally, the LCBO relies heavily on the absence of any direct affidavit evidence from the plaintiff’s solicitor, in support of the assertion of reasonable due diligence, expressly detailing the steps taken to identify potentially liable parties. [ 40 ] In that regard, the LCBO relies on Pepper v.

Zellers Inc. , supra , where the Court of Appeal, at paragraph 21, reiterated the proposition that “In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent”. [15] In the same paragraph, the Court commented adversely on the fact that, in responding to the discoverability issues raised by the defendant’s motion for

summary judgment, “there was no affidavit evidence from the appellants’ lawyer, only one from the lawyer’s law clerk, which provided no particulars of any steps taken to obtain information and did not explain why no steps were taken”.

In the result, the Court found in that case that the appellants had offered “no explanation other than to say that no one gave them the information”. [16] [ 41 ] In response, plaintiff counsel acknowledges that the evidence tendered in response to the LCBO’s motion was filed by means of an affidavit from his law clerk, (reflecting limitations inherent in his status as a sole practitioner), but submits that affidavit evidence, and the other material it places before the court, clearly differentiates this case from others wherein a responding party offered no evidence indicating steps taken to exercise due diligence, and “no explanation” for a professed inability to identify a potentially liable party at an earlier date or suggested failure to take certain additional steps in that regard. [ 42 ] The plaintiff submits the evidence now before the court, taken as a whole, shows why her claim against the LCBO could not reasonably be discovered at an earlier date, or at least demonstrates the existence of a “genuine issue requiring trial” in that regard. “Discovery” Determination – Application of

Summary Judgment [ 43 ] As a threshold observation in my

summary judgment analysis of the limitation period issue, I believe it should not be decided on the simple basis that there is no affidavit from the plaintiff solicitor himself outlining discovery efforts in an express “steps taken” format. [ 44 ] In that regard, I note the following:

a) Rule 20.02(2) does not specify the precise form of evidence to be tendered by a party responding to a motion for

summary judgment, but instead employs a flexible reference to “affidavit material or other evidence”. Not surprisingly, courts therefore have regard not only to affidavit evidence per se , but to the extensive documentation and discovery examination or other transcripts often introduced by affidavit evidence. See, for example, Smith v. Barna Estate , [2012] O.J. No. 510 (S.C.J.), at paragraph 23 .

b) While authorities such as Pepper v. Zellers Inc. emphasize the usual importance and effectiveness of a solicitor affidavit in relation to such discoverability matters, they do not elevate the need for such an affidavit to an absolute rule. Moreover, such authorities also usually emphasize, in the particular circumstances considered, the absence of any evidence outlining steps taken or explanation of delay. To that extent, they do not address situations where such evidence arguably has been provided in another manner.

c) Authorities as Pepper v. Zellers Inc. were decided prior to amendment of Rule 20 and confirmation of the court’s new power, if appropriate “in the interest of justice”, to draw “any reasonable inference” from the evidence that has been tendered.

In my opinion, this inherently reduces the need for parties to tender responding evidence in any particular express and exhaustive format, (although a party whose evidence fails to “connect the dots” sufficiently runs the risk of necessary inferences not being drawn). [ 45 ] Subject to the limitations emphasized by Combined Air , supra , I therefore think it appropriate to consider the matter having regard to all the evidence tendered before me, drawing whatever reasonable inferences that material suggests regardless of the manner in which it has been presented.

Any other approach would elevate form over substance, and derogate from the power conferred by Rule 20.04(2.1). [ 46 ] With the above considerations in mind, is this case amenable to determination by

summary judgment as far as the limitation period issue is concerned? [ 47 ] Obviously, it is not a situation where the parties have reached any agreement in that regard. [ 48 ] Nor, in my opinion, is this a case where it would be possible to determine the limitation period without resort to the expanded powers now conferred by Rule 20.04. [ 49 ] Pursuant to Combined Air, supra , the question to be answered on this aspect of the LCBO’s motion therefore is this: “Can the full appreciation of the evidence and issues required to make dispositive findings in relation to the limitation period and discoverability issues be achieved by

summary judgment, or can this full appreciation only be achieved by way of trial?” [ 50 ] Having considered the matter and tendered evidence carefully, I think a trial is needed to permit the requisite “full appreciation”

of the evidence and issues, at least insofar as the limitation period and discovery are concerned. [51] In particular, it seems to me that the plaintiff has tendered sufficient evidence to raise serious and significant issues in relation todiscoverability.

However, many aspects of the evidence remain unclear and problematic, warranting their further exploration andresolution at trial before the limitation period and discovery issues can be resolved conclusively in favour of one side or the other. [52] Much of the substantial material before me relates primarily to the limitation period issues, and in particular, the manner in whichthe plaintiff’s investigation and litigation have progressed over the years. [53] A good deal of this suggests the exercise of reasonable diligence on the part of the plaintiff and her solicitor.

For example, thepleadings, correspondence and discovery evidence all support a reasonable inference that the plaintiff and her counsel were taking usualand appropriate steps to investigate the circumstances leading to the accident, and actively target any party who might bear liability forthe plaintiff’s loss.

Such measures included: i. targeting and pursuing all insurers possibly charged with providing liability insurance; ii. timely requests and follow-up inquiries to secure full disclosure from public authorities, (including the police investigation,Crown brief and transcript of the ancillary criminal proceedings); iii. obtaining timely disclosure from the insurer providing accident benefit coverage; and iv. taking steps to move the matter forward to discovery examinations, having regard to the additional constraints posed by theplaintiff’s injuries, and the coverage and representation issues associated with Young. [54] These are not the usual indicia of a plaintiff “sleeping on her rights”. [55] Nor is this a case where the plaintiff has offered, via her responding evidence, “no explanation” as to why she and her counseldid not learn of the LCBO’s alleged failings and involvement at an earlier date. [56] To the contrary, the responding evidence tendered by the plaintiff suggests numerous reasons why a reasonable person “with theplaintiff’s abilities and in the plaintiff’s circumstances” understandably may not have learned of the LCBO’s conduct and involvementprior to Young’s discovery examination in September of 2009.

In particular:

a) It was not disputed that the plaintiff’s own ability to recall the source of the alcohol was impaired and effectively prevented byher injuries. The only evidence in that regard therefore would have to be provided by Youmans and/or Young, either indirectly throughtheir indications to others, or directly through their response to inquiries from the plaintiff and her counsel.

b) What Youmans and Young had indicated to others either failed to mention the LCBO, (e.g., the statements given by Youmansand Young to the police said nothing in that regard), or pointed to an alcohol source other than the LCBO. In particular, the statementprovided by Mrs Young to her own insurer on October 1, 2002, (obtained by plaintiff counsel during the two year period following theaccident), indicated that the relevant alcohol had been supplied by Youmans’ mother.

A reasonable inference is that Young was thesource of his mother’s information in that regard; i.e., that Young was telling people within weeks of the accident that the alcohol hadcome from a source other than the LCBO. More recent information obtained by plaintiff counsel obviously suggests that earlierinformation may have been inaccurate. However, authority such as Velasco v.

North York Chevrolet Oldsmobile Ltd. (2011), 2011ONCA 522 , 106 O.R. (3d) 332 (C.A.), at paragraph 9, suggests that plaintiff counsel who rely on inaccurate informationobtained during the course of investigations should be regarded as having “acted with reasonable diligence in continuing to rely on thatinformation until contrary information came to their attention”.

c) The LCBO argues that Youmans should have been questioned directly about the source of the alcohol long before now, andthat doing so would have alerted the plaintiff and her counsel to the LCBO’s alleged involvement.

However, the evidence indicates,directly and by reasonable inference I think, that the relationship between the plaintiff and Youmans was extremely volatile and strainedfollowing the accident, (to the point of criminal charges being laid and/or non-association provisions being imposed), and that theplaintiff to some extent has preserved contact with her child’s father by a tacit agreement that there will be no discussion between themof the accident or the circumstances leading to the accident.

There accordingly is an explanation as to why a reasonable person, in theparticular circumstances of the plaintiff, may not have pursued such direct inquiries outside the formal litigation. Moreover, theevidence also suggests good reason to question whether Youmans would have provided truthful and accurate evidence as to the source ofthe alcohol even had he been asked about that at an earlier date.

In that regard, I have in mind Young’s discovery examination evidenceindicating that, on the day of the accident, in the immediate wake of his girlfriend’s apparently very serious injuries, Youmans’ primaryconcern was active concealment of any wrongdoing on his part and a corresponding request that Young assist in deliberate efforts tomislead the police in their investigation.

At the very least, this suggests Youmans may not have been forthcoming at any later time aboutany information revealing his involvement in procuring and supplying false identification, or encouraging its use to facilitate an illegalunderage purchase of alcohol from the LCBO.

d) The LCBO similarly argues that Young should have been questioned directly about the source of the alcohol well before hisdiscovery examination on September 9, 2009, and that this too would have alerted the plaintiff and her counsel to the LCBO’s allegedinvolvement. However, there is a good deal of evidence indicating that Young frequently was not responsive to any inquiries concerningthe accident. (Numerous letters and requests from plaintiff counsel and Fund counsel apparently went completely unanswered, overextended periods of time.) There accordingly is reason to doubt whether Young would have responded at all to direct substantive

inquiries about the accident, prior to his formal discovery examination. Moreover, even if the plaintiff and her counsel had made earlierdirect inquiries about Young’s source of alcohol, there are numerous indications that he may not have been truthful, accurate andforthcoming, at any earlier time, about his alleged underage purchase of alcohol from the LCBO. Young himself indicated as muchduring his discovery examination; i.e., when confirming his agreement with Youmans to mislead the police, and his decision to changehis story only later, in the context of the plaintiff’s civil litigation.

However, evidence of his earlier lack of candour and/or misdirectionconcerning the source of his alcohol is also suggested by his statement to the police, (which makes no mention of where he obtained thealcohol), the statement Young likely made to his mother in the weeks after the accident before she provided a statement to her insurer,(indicating that the alcohol came from Youmans’ mother), and the statements Young apparently made to Fund counsel in January of2009, (indicating that the alcohol came from the plaintiff’s mother).

e) More generally, the evidence outlines a credible explanation as to why formal discovery of Young was delayed, and authoritiessuch as Madrid v. Ivanhoe Cambridge Inc. (2010), 2010 ONSC 2235 , 101 O.R. (3d) 553 (S.C.J.), at paragraphs 14 and 15, (andthe cases cited therein), explain why courts generally are inclined to make some allowance for a litigant’s failure to learn informationprior to exercising formal rights of discovery: It is not unusual for possible defendants to emerge as a result of information received during the opposite party’s document production orduring the discovery process in an action.

In the context of motor vehicle accidents, examinations for discovery are often delayed topermit injuries to ripen and perhaps to resolve so later discovery of additional possible defendants is not so unusual. … In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs towrite pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s.5 ofthe Limitations Act, 2002.

It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendant and add unproductive costs.

The partiesshould not have to conduct a pre-discovery form of discovery. [57] However, while the evidence before me is sufficient to raise doubt about whether a reasonable person in the plaintiff’scircumstances ought to have learned of the LCBO’s involvement at an earlier date, I also feel unable, in the current context, to resolvethat discovery issue in the plaintiff’s favour. [58] My concerns in that regard include the following:

a) Despite the considerable material placed before me, there are effective gaps in the chronology during which substantial timeappears to lapse before further steps are taken to advance the litigation. The material placed before me suggests indirectly why this mayhave occurred, but further detailed exploration and testing of such evidence at trial might suggest that the plaintiff and her counselshould have pushed the matter on to formal discovery examinations at a much earlier date.[17]

b) There are at least some indirect indications that the plaintiff and her counsel may not actually have relied, at any materialtime, on the statement provided by Mrs Young to her insurer on October 1, 2002, (which was disclosed to the plaintiff and her counselon July 18, 2004), indicating that the alcohol had been obtained from Youmans’ mother.

For example, despite the considerableimportance attached to the statement and its disclosure during the submissions before me on August 20, 2012, I note that neither thestatement nor the timing of its revelation were mentioned in the responding material originally filed by the plaintiff in advance of themotion’s earlier special appointment hearing date on April 27, 2012. Nor did the statement prompt any attempt by the plaintiff toadvance a formal claim against Youmans’ mother.

As suggested by plaintiff counsel, omission of the statement from the plaintiffs’original responding material may stem from inadvertence, and the differential approach taken by plaintiff counsel in suing the LCBOand not Youmans’ mother may have reflected a considered distinction between commercial vendors of alcohol on the one hand, andsocial or parental hosts on the other.[18] However, further exploration and testing of the plaintiff’s evidence at trial might result in aconclusion that the plaintiff actually placed no reliance on Mrs Young’s statement prior to the LCBO’s

summary judgment motion.

c) Although there is evidence suggesting why the plaintiff reasonably may not have made direct inquiries to Youmans orYoung at an earlier time, and that earlier inquiries would not have indicated the LCBO’s alleged involvement in any event, it seems tome that final determinations in that regard would turn on necessary assessments of credibility that properly should be made only after thecourt has an opportunity to make direct observations of those concerned; e.g., the plaintiff, Youmans, Young and perhaps Young’smother. [59] In short, it seems to me that a full appreciation of the evidence and issues required to make final determinations in relation to thelimitation period and discovery issues can only be achieved by way of trial.

In the words used by Rule 20 itself, I am not “satisfied thatthere is no genuine issue for trial” in that regard. [60] The LCBO’s request for

summary judgment on that basis therefore fails. [61] This makes it necessary to address the second ground relied upon by the LCBO for its motion; i.e., that the claim has no chanceof success in any event, because the evidence is insufficient to substantiate the claim the plaintiff has made against the LCBO. LCBO LIABILITY – GENERAL PRINCIPLES AND CONSIDERATIONS [62] The plaintiff’s claim against the LCBO is framed exclusively in “negligence”, and is contained in paragraph 24 of the plaintiff’s

amended statement of claim: 24. The plaintiff pleads that the injury in question was caused by and contributed to by the negligence of the Defendant, LCBO, theparticulars of which are as follows: (

a) the Defendant and/or their agents and employees failed to take reasonable care to ensure that the Defendant Bradley Young wasof legal age to purchase alcohol; (

b) the Defendant and/or their agents and employees failed to inspect the ID which Bradley Young produced to confirm that the IDin fact belonged to Bradley Young; (

c) the Defendant and/or their agents and employees caused to exist and permitted the exist (sic) of danger by allowing the minorDefendant, Bradley Young, to purchase alcohol; (

d) the Defendant and/or their agents and employees failed to take any steps to stop the Defendant Bradley Young when it knew orought to have known that the Defendant Bradley Young was a minor who would be consuming alcohol and might face a situation ofdanger by doing so; [and] (

e) the Defendant and/or their agents and employees failed to take reasonable precautions for the safety of those persons using theroadway when they sold alcohol to the minor, Bradley Young. [63] As noted by the editors of Remedies in Tort, (Klar et al.), at c.16.1, s.9, citing authorities including Blair v. G.T.R., (ON CA), [1924] 1 D.L.R. 353 (Ont.C.A.), and Thompson v.

Fraser, (SCC), [1955] S.C.R. 419: The classic definition of negligence is “the omission to do something which a reasonable [person], guided upon those considerationswhich ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable [person] wouldnot do.

What a reasonable [person] would do or not do depends on all the circumstances; what may be negligence in one case may not bein another. [64] A review of leading texts on tort law confirms that there are differing opinions as to what elements constitute a cause of action innegligence.[19] [65] However, common to all these

definitions of “negligence”, and all variations of the suggested elements of the tort, is afundamental requirement that a claimant establish a defendant’s breach of the standard of care properly expected in such circumstances. [66] That requirement really was the focus of argument before me, as far as the second general ground of the LCBO’s motion forsummary judgment was concerned. [67] In particular, for purposes of its

summary judgment motion at least, the LCBO did not suggest there was “no genuine issuerequiring a trial” concerning other suggested elements of negligence that the plaintiff must make out in order to succeed at trial; (e.g.,duty, damage or adequate causal connection).[20] [68] Rather, the LCBO focused on the plaintiff’s alleged inability to establish, as she must, on the balance of the probabilities, that theLCBO breached any applicable standard of care in the circumstances.

If that is the case, the plaintiff’s claim is destined for failure,regardless of whether she is able to substantiate the other elements of the tort, and there is “no genuine issue requiring a trial” as far asher claim against the LCBO is concerned. [69] Plaintiff counsel focused his response accordingly; i.e., by arguing there is at least a “genuine issue requiring a trial” as far as theLCBO’s alleged misconduct and breach of an appropriate standard of care is concerned. [70] I accordingly will adopt a similar focus in considering this second suggested basis for the LCBO’s

summary judgment motion. [71] When considering the requisite “standard of care”, the content of the duty owed by a defendant to a plaintiff generally has beendelineated, (as in the “classic definition” set forth above), by notions of what a “prudent and reasonable person” would do or not do inthe circumstances, guided by “those considerations which ordinarily regulate the conduct of human affairs”.[21] [72] An extensive

summary of the character of the reasonable person is found in Arland v. Taylor, (ON CA), [1955]O.R. 131 (C.A.), where Laidlaw J.A. made the following comments at p.142: [The reasonable person] is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of allother persons and find it to be proper or improper in particularly circumstances as they may exist from time to time.

He is not anextraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he isnot a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligencewho makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything aprudent man would do. He acts in accord with general approved practice. His conduct is guided by considerations which ordinarilyregulate the conduct of human affairs.

His conduct is the standard adopted in the community by persons of ordinary intelligence andprudence. [73] As noted by the editors of Remedies in Tort, supra, some statutes expressly proscribe a standard of conduct in a given situationand may also express civil liability. More often, however, legislation proscribes certain conduct but is silent as to tort liability, leavingthe issue for the courts to decide. Generally, “statutory breach does not constitute negligence per se”, and “compliance with statutoryprovisions does not replace the defendant’s common law duty of care”.

However, in appropriate circumstances, compliance withstatutory standards may entirely satisfy the common law standard of care and absolve a defendant of liability in negligence. In particular,“if a statute authorizes certain activities and strictly defines the manner of performance and precautions to be taken, then it is more likely

to be found that compliance with the statute constitutes reasonable care and no additional measures are required”. [22] [ 74 ] In this case, both the LCBO and the plaintiff approached the motion accepting that the LCBO had statutory duties imposed and qualified pursuant to the “Responsible Use” provisions of the Liquor Licence Act , supra , which read in part as follows: RESPONSIBLE USE … Rules, persons under 18 30.

(1) No person shall knowingly sell or supply liquor to a person under nineteen years of age.

(2) No person shall sell or supply liquor to a person who appears to be under nineteen years of age. … Reliance on documentation

(6) A person who sells or supplies liquor to another person … on the basis of documentation of a prescribed type is not in contravention of subsection (2) … if there is no apparent reason to doubt the authenticity of the documentation or that it was issued to the person producing it. [ 75 ] As noted above, plaintiff counsel made reference, in support of his arguments responding to the limitation period concern, to the distinction emphasized by our Supreme Court between those who supply alcohol in the commercial context and private social hosts. [23] This included reference to the Supreme Court’s comments, at paragraph 21 of Childs v.

Desormeaux , supra , underscoring the dangers of alcohol over-consumption, or alcohol consumption “by young or otherwise vulnerable persons”, that underlies the regulatory control of alcohol sale and service in commercial settings. [ 76 ] Beyond this passing reference, however, neither counsel for the LCBO nor counsel for the plaintiff otherwise suggested any other particular standard of care considerations applicable to the plaintiff’s claim against the LCBO, apart from the aforesaid provisions of the Liquor Licence Act , supra . [ 77 ] To the contrary, both counsel indicated there was no reported authority suggesting the existence of any applicable common law standard of care on the LCBO higher than that imposed by the above legislative provisions in such circumstances. [ 78 ] Counsel accordingly focused their argument on whether the available evidence was capable of establishing that the LCBO had or had not breached its statutory duties in the particular circumstances of this case.

LCBO LIABILITY - EVIDENCE [ 79 ] Evidence relating to the LCBO’s alleged sale of alcohol to Young, and the circumstances in which this may have occurred, includes the following:

a) Because of her injuries, the plaintiff can remember drinking with Youmans and Young in her apartment prior to the accident, but cannot remember the source of the alcohol. Nor does she remember Young going to the liquor store, or any discussion about Young purchasing alcohol with a “fake ID”. Her memories in that regard have not improved with the passage of time. However, the plaintiff does recall Young showing her, at some unspecified time, a driver’s licence which she believed to be his.

b) At the time of the accident, the plaintiff was 19, Youmans was 18 and the plaintiff was 16. However, although the plaintiff had known Young for at least a number of weeks prior to the accident, she did not know he was 16. She says she learned Young was under 19 at the time only after the accident.

c) During the plaintiff’s second discovery examination on January 25, 2011, plaintiff counsel indicated that, in support of her negligence allegations, the plaintiff was relying on the LCBO’s statutory duty of care and obligation “to not serve alcohol to people that are less than 19 years of age”, as well as its alleged failure to see that “the rules were followed”.

d) The LCBO produced documentation indicating and confirming its numerous standing policies and programs, in force at the time of the accident in 2002, designed to prevent the sale of alcohol to those who are or appear to be under age, and to provide LCBO staff “with the necessary skills and strategies for responsible service and handling difficult situations”. This material included the “Social Responsibility” provisions of the LCBO’s store operations manual and its “Strategies for managing agent alcohol-related troubles” (“SMAART”), the provisions and requirements of which include the following: i.

An express reminder that “LCBO staff must not sell alcohol to those who are or appear to be under age”. This is buttressed by express reproduction of the provisions of the Liquor Licence Act , supra , indicating that “No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who appears to be under 19 years of age…” ii. The LCBO’s mandated “Check 25” practice, which reads as follows: “Persons who appear to be under the age of 25 must be challenged by LCBO staff to provide acceptable photo identification.

If they cannot provide acceptable photo identification LCBO staff must refuse to sell alcohol to them.” iii. Additional mandated and specified “Challenge” and “Refusal” practices, including directions that: 1. Staff must challenge all persons attempting to purchase alcohol that appear to be under the age of 25; 2. Staff must refuse to sell alcohol products to all persons who appear to be under the age of 25 and cannot produce acceptable forms

of identification, (specified elsewhere within the policy); 3. LCBO staff must document any such challenge and refusal by use of a specified form and report; and 4. The importance of training and continued support in relation to the LCBO’s programs and policies is to be emphasized at all staff meetings. iv. A training requirement and restriction that reads as follows: “All LCBO Staff must receive SMAART training within three months of hire, and must not process customer purchases until they have received SMAART training.” v.

A standing written instruction to staff regarding identification produced by individuals attempting to purchase alcohol, which reads as follows: “Remember, check and evaluate all presented identification – both prescribed and non-prescribed. If the expiry date has passed or if there is any doubt whatsoever about its validity, ask the customer for another form of government-issued photo identification. If one is unavailable, refuse the sale and document the Challenge and Refusal.” [Original emphasis.] vi.

Confirmation that LCBO staff training includes various video and workbook exercises providing staff with more detailed suggestions of things to look for when examining proffered photo identification; e.g., non-expiry and consistency of dates, signs of possible alteration, (such as fading, yellowing, the presence of small holes in lamination, and imperfect alignment of information). These also suggest that staff look for certain specified behaviors, clothing and other indicia often associated with underage individuals attempting to purchase alcohol.

e) The LCBO also disclosed and produced a copy of a “Four Week Schedule” covering the date of the accident and the day before; (i.e., the date on which Young is alleged to have purchased alcohol from the LCBO store in Hensall). This

schedule indicates that, on Tuesday, August 28, 2002, during its opening hours of 9am to 6pm, the LCBO store in Hensall was staffed solely by Pam Robertson.

f) According to the testimony given by Young during his discovery examination: i. He was born on December 6, 1985. ii. At the time of the alleged alcohol purchase on A

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