Claims of inadequate signage against ministry of transportation fall outside of limitation period

The Ontario Superior Court of Justice has denied a motion to have the Ministry of Transportation of Ontario (MTO) added as a defendant in a case in which the defendant claims a highway had insufficient signage, resulting in an accident.

In Boychev v. Alves, Fabio Alves rear-ended a vehicle driven by Venelina Karagyozova-Boycheva as she was travelling southbound in a merge lane on Highway 427.

Venelina had two minors as passengers at the time of the accident, Mariyan Boychev who sustained a severe traumatic brain injury and a spinal cord injury, resulting in permanent paraplegia and major neurological impairments. The other minor passenger, Stela Boycheva, sustained less severe injuries. The two are claiming damages of $20 million and $250,000, respectively.

The plaintiffs commenced an action in December 2008. During Alves’ discovery on June 15, 2011, it was discovered that Alves did not reduce his speed as a result of seeing an advisory speed sign, suggesting motorists slow from 100 km-h to 60 km-h.

The guardians acting on behalf of the minors argued that because the claim of inadequate signage was discovered on discoverability, the two year limitation period set out in the Limitations Act has not yet expired, and would not do so until June, 2013.

The MTO argued that the alleged cause of the action against it should have been discovered long ago, and that the limitation period in respect of the adult plaintiff expired in January 2009, and the minor plaintiffs’ in December 2010, two years after the statement of claim was issued and litigation guardians appointed.

The court agreed with the MTO that the allegedly inadequate signage could have easily been discovered immediately after the accident by retaining an engineer.

“In my view, the evidence before the court on this motion indicates that the essential facts that make up the cause of the action against the MTO were easily obtainable, with the exercise of even a modest degree of due diligence, immediately after the accident took place,” the decision says.

The MTO was awarded costs of the motion, on a partial indemnity basis, if requested.