CITATION: Klein v. G4S Secure Solutions (Canada) Ltd., 2016 ONSC 1930
DIVISIONAL COURT FILE NO.: DC-15-00000598-0000 DATE: 20160526
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Nancy Klein
Applicant/Plaintiff
– and –
G4S Secure Solutions (Canada) Ltd.
Respondent in Appeal
– and –
Cindy Stiller, Metropolitan Toronto Condominium Corporation No. 1397, Del Property Management Inc., and Greg Niemkiewicz, carrying on business as Dominus Facility Management
Defendants
Patricia M. Hill, for the Applicant/Plaintiff
Varoujan Arman, for the Respondent
No one appearing for Defendants
HEARD at Toronto: March 8, 2016
Stewart J.
Nature of the Appeal
[1] The Appellant, Nancy Klein (“Klein”) appeals from the decision of Master Short dated June 9, 2015. The Master dismissed Klein’s motion to add the Respondent, G4S Secure Solutions (Canada) Ltd. (“G4S”) as a defendant to her action.
[2] Klein argues that the Master erred and ought to have allowed her motion. G4S takes the position that there is no basis upon which this court should interfere with the decision of the Master.
Jurisdiction
[3] Appeals from the final order of a master are heard by a single judge of the Divisional Court pursuant to s.19(1)(c) and s. 21(2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
Standard of Review
[4] The standard of review in an appeal from a final order of a master is the same as that of an appeal from an order of a judge: correctness for an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle (see: Zeitoun v. Economical Insurance Group 2009 ONCA 415 at para. 1; Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at para. 28).
Background Facts
[5] Klein’s action arises out of an incident that occurred on August 18, 2012 in the parking area of a condominium building at 123 Eglinton Avenue East, Toronto. Klein claims damages for injuries sustained by her in a fall in the parking foyer due to a spill of olive oil on the floor surface.
[6] A Statement of Claim was issued by Klein on August 6, 2014.
[7] Klein’s action names as a defendant Cindy Stiller, a resident of the condominium building who is alleged to have spilled the oil. Klein also has made claims against the condominium corporation, the management company responsible for overseeing the maintenance of the building, and the cleaner who has a contract to clean the building premises.
[8] Evidence filed on the motion revealed that on the date of the incident a uniformed G4S security officer was stationed on twenty-four hour basis at the concierge desk on the main floor of the building premises. All uniforms worn by G4S security officers displayed G4S’ logo above the word “security”.
[9] An Occurrence Report dated August 18, 2012 was prepared by a former G4S security officer at the time of the incident. It records that, at approximately 6:22 p.m. on August 18, 2012, Klein attended at the security desk and notified the security officer present that she had slipped and fallen at the level B lobby and that she had hurt her knee and hip.
[10] On March 13, 2014, approximately five months before the expiry of the presumptive limitation period applying to any proceedings against G4S, an insurance adjuster for one of the Defendants wrote to Klein’s counsel to advise as follows:
Cindy Stiller had borrowed the flatbed and returned it to the security guard who after it was returned noticed oil on it. The security camera shows Ms. Stiller loading contents and having trouble getting through doors. Items fell off the cart Ms. Stiller is seen picking things up. After your client fell she reported the incident to security who recalled Ms. Stiller had borrowed the flatbed which was returned with oil on it. He contacted Ms. Stiller at 18:34 and asked if she has spilt oil. She acknowledged she did. The security guard indicated to Ms. Stiller she should have notified security immediately of this incident.
[11] By letter to Klein’s counsel dated September 22, 2014, counsel for the Defendant Condominium Corporation advised that G4S was the security provider at the premises on the date of the incident and asked if G4S would be added as a defendant.
[12] On January 13, 2015, more than two years after the date of the alleged incident, counsel for Klein wrote to G4S notifying it of Klein’s claim and advising that a Statement of Claim would follow.
[13] Before receiving the January 13, 2015 letter, G4S says it had no prior knowledge of any possible claim against it by Klein. There is no evidence to the contrary.
Analysis
[14] The Master’s Endorsement sets out in detail his reasons for dismissing Klein’s motion.
[15] On a motion to add or substitute a party after the expiry of a presumptive limitation period such as this, the Master was required to examine the evidentiary record before him and determine if there is a live issue of fact or credibility on the discoverability allegations. If there is no live issue, then leave to add the party should not be granted (see: Pepper v. Zellers Inc. (2006), 2006 ONCA 42355, 83 O.R. 648 (C.A.)).
[16] The Master correctly identified the issue before him as being whether sufficient due diligence had been exercised by Klein in determining whether to add G4S as a defendant prior to the expiry of the presumptive two-year limitation period.
[17] The Master concluded that Klein had been made aware of the involvement of the security company at the time of the incident and at least five months before the limitation period had otherwise expired. The Master also noted that Klein continued to reside in the building following the incident. The Master concluded that Klein had the opportunity to identify the G4S employee every time she entered the front lobby of her residence.
[18] After reviewing the evidence, the Master found that the identity of G4S could have been determined by a simple inquiry, which was not done. Given that counsel for Klein had been advised of the involvement of the security company in March, 2014 but did nothing to take any action, Master Short held that due diligence had not been demonstrated to the degree necessary to justify adding this new defendant after the expiry of the presumptive limitation period.
[19] In arriving at his decision, the Master explicitly recognized, considered and applied the policy implications to be balanced on a motion to add a defendant beyond the expiry of a presumptive limitation period.
[20] Klein argues that the issue on appeal is one of an error of mixed fact and law. Klein submits that in reaching his decision on the application of the law to these facts the Master made a palpable and overriding error.
[21] Although I agree that the standard of review to be applied here is one of palpable and overriding error, I see no such error reflected either in the Master’s assessment of the record of evidence or in his decision.
[22] The expiry of a limitation period gives rise to a presumption of prejudice to the proposed defendant, which must be addressed by the bringing of a motion by the plaintiff to add the proposed new party. To rebut this presumption of prejudice and raise a genuine discoverability issue, it is incumbent on the plaintiff to lead evidence showing that the identity of the proposed added party was not known, or could not reasonably have been known, within the presumptive limitation period. That requires not only evidence of when the plaintiff actually knew that the party was an appropriate defendant, but also evidence as to when the plaintiff ought to have so known (see: Pepper v. Zellers, supra; Sloan v. Shave Heating Ltd. (2010) 2010 ONSC 3871, O.J. No. 3002 (S.C.J.)).
[23] This due diligence requirement is not satisfied by waiting for someone else to advise as to the correct party defendant. Counsel must give evidence of steps taken to ascertain the identity of the proposed defendant. Where there is a failure to demonstrate the steps taken to obtain information regarding the possible liability of the proposed defendant, this lack of evidence may result in a proper inference that no such steps were taken (see: Lokett v. Bontin, 2011 ONSC 2098, [2011] O.J. No. 1530 (S.C.J.); Wakelin v. Gourley [2006] O. J. No. 1442 (Div. Ct.)).
[24] Reasonable efforts to discover the identity of the parties responsible must be made and disclosed in a supporting affidavit by the party seeking to add a new defendant after the initial two-year period. In most cases, a lawyer’s’ affidavit listing the attempts made by the lawyer to obtain information to substantiate the assertion that the party was reasonably diligent is expected (see: Wolkowicz v. Avignon Inc., 2011 ONSC 5899 (S.C.J.)).
[25] In this case, the Master carefully reviewed the evidence and concluded that the identity of the security company could have been ascertained by a simple inquiry, but that was not done. It is evident that Klein had contact with the concierge/security guard on the day she fell. Klein had an opportunity to identify the employer of the concierge/security guard each time she entered the front lobby of her residence.
[26] Klein’s counsel received specific notification of the involvement of the security company in March, 2014 and did nothing to follow up or to assert that Klein’s injury, loss or damage was caused or contributed to by any act or omission of G4S.
[27] In my view, the Master’s thorough and carefully reasoned decision reveals no palpable and overriding error that would justify appellate interference.
Conclusion
[28] For these reasons, the appeal is dismissed.
Costs
[29] The parties have agreed that costs of this appeal should be payable to the successful party by the other, fixed at $5,000.00. Accordingly, Klein shall pay to G4S the sum of $5,000.00, all-inclusive, as costs of this appeal.
___________________________ Stewart J.
Released: May 26, 2016
CITATION: Klein v. G4S Secure Solutions (Canada) Ltd., 2016 ONSC 1930
DIVISIONAL COURT FILE NO.: DC-15-00000598-0000 DATE: 20160526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Nancy Klein
Applicant/Plaintiff
– and –
G4S Secure Solutions (Canada) Ltd.
Respondent in Appeal
– and –
Cindy Stiller, Metropolitan Toronto Condominium Corporation No. 1397, Del Property Management Inc., and Greg Niemkiewicz, carrying on business as Dominus Facility Management
Defendants
REASONS FOR JUDGMENT
Stewart J.
Released: May 26, 2016