Court File and Parties

COURT FILE NO.: 15-CV-532707 Heard: May 5, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wong v. Salivan Landscape Ltd.

BEFORE: Master Joan Haberman

COUNSEL: Chan, A. for the moving party Arman, V. for the responding party

Endorsement

Master Haberman:

[1] On May 5, 2016, I heard and granted Wong’s motion to amend her statement of claim by adding three new defendants to it. Only one of them, G4S, opposed the motion, on the basis of the expired presumptive limitation period. The other two proposed parties have consented to the relief sought.

The Facts

[2] On January 11, 2014, Helen Wong slipped and fell while walking by the entrance to the condominium building in which she resides. As a result of her accident, Wong fractured her left ankle.

[3] Wong sent a notice letter to the Town of Richmond Hill on January 30, 2014. She also conducted a property search and identified the owner of the premises where she fell as York Regional Standard Condominium Corporation No. 1008 (YRSCC 1008). On April 15, 2014, Wong was advised that the area where she fell was not within the jurisdiction or control of the Town of Richmond Hill.

[4] Notice was given to the owner, YRSCC 1008, on July 22, 2014, and the plaintiff was advised by them that the defendant, Salivan, was responsible for snow removal and maintenance of the premises. A corporate search conducted on October 20, 2014 provided the proper legal name of that company.

[5] By letter of July 9, 2015, Wong’s counsel was advised that the insurance adjuster for YRSCC 1008 had completed their investigation and had concluded that her fall was caused by an accumulation of snow and/or ice and that the owner had a contract in place for removal of snow and ice with Salivan.

[6] Wong issued her claim on July 20, 2015, naming only YRSCC 1008 and Salivan as defendants, based on the information obtained. YRSCC delivered their defence on October 29, 2015, in which they also and cross-claimed against Salivan. They did not initiate third party proceedings at that time, though they would have been far better placed than Wong to know if there was anyone else from whom they could seek indemnification.

[7] Salivan delivered a defence and their crossclaim on November 10, 2015. Mediation was scheduled to proceed that day, to be followed by examinations for discovery on February 5, 2016. Both events were canceled, however, as a result of Wong learning that there may have been others involved in this event. Neither event has been rescheduled pending the outcome of this motion.

[8] This new information, imparted two months after delivery of Salivan’s defence, came in the form of an e-mail, dated January 8, 2016, from a law clerk in the office of Salivan’s insurer. Among the documents she provided was a contract showing that it was actually the proposed defendant, Brookfield, who was responsible for YRSCC 1008’s snow removal at the time of this incident.

[9] The same bundle of documents also contained an incident report prepared by G4S on the day of Wong’s fall. The report begins by noting that S/O Ron Liang was on duty at the security gatehouse doing access control that day, when, at 0858 hours he noticed on the closed circuit tv that a resident had fallen to the ground in front of building 9017. She was carrying a small dog at the time. He asked the patrol guard, David Burton, to investigate and he then contacted S/S Kareem to inform him about the accident and to advise that the resident was being assisted, as Liang had observed on camera. The report contained further details, the most important for the purpose of this motion being the following:

Forecast conditions that day was (sic) freezing rain the entire day with temperatures falling below zero. S/S Kareem immediately informed the property manager Olivia at which time Salivan was contacted to salt the entire property to prevent another incident from happening.

[10] There is no reference anywhere in that memo to the effect that G4S also had a role to play with respect to keeping the property winter-safe. Liang says nothing, for example, about asking Burton to salt the area of the fall pending Salivan’s arrival on site.

[11] On February 1, 2016, after the expiry of the presumptive limitation period, defence counsel for YRSCC 1008 wrote to Wong’s counsel by e-mail, indicating as follows:

I understand the G4S did have salt available to it, and was expected to use it if necessary and call Salivan if deemed necessary. I do not currently have the full contract in place at the time of the incident. My client has not been able to locate it and has asked G4S for a copy.

[12] On the same day, defence counsel appears to have received and forwarded the relevant portions of this contract. According to the contract:

If the security guard is provided with a snow shovel, broom or packaged ice, then it may be required that:

1. They clear their immediate work area of snow and ice, to reduce the possibility of a slip-and-fall injury.

2. The main entrance door to the building is cleared enough to allow for someone to walk through without undue risk.

[13] A corporate search was conducted to verify the legal names of G4S and Brookfield on February 4 and 17, 2016, respectively and notice was given to the three proposed defendants between February 3 and 17, 2016.

[14] The plaintiff’s position is that they were not aware of G4S or their potential negligence until February 1, 2016, when they received the above e-mails from defence counsel. They assert that the evidence in their record demonstrates that they acted reasonably and completed all appropriate investigations to determine the necessary parties and their proper legal names. There was no indication in anything they had seen before February 1, 2016 to suggest that G4S also had obligations regarding snow and ice removal and therefore no basis for them to have made inquiries in that direction.

[15] G4S relies on the incident report, provided three days before the expiry of the presumptive limitations period, as the basis for its opposition. Their position is that the plaintiff was aware, just before the expiry of the limitation period, that there was a security guard on duty, as well as the identity of this individual, and they assert that the plaintiff could have determined the guard’s duties by asking at the gatehouse or writing a letter to G4S.

[16] The issues for this court are (a) whether that level of investigation can be considered reasonable and appropriate in the circumstances or if it exceeds the court’s expectations; (b) whether obtaining that information would have allowed for the issuance of a claim against G4S within the next three days, and (c) whether the limitation period as against G4S only began to run when Wong became aware of their obligations and possible breach thereof.

The Incident Report

[17] I have set out the important aspects of the report above. It essentially tells a reader four things:

• That the forecast for the day called for freezing rain the entire day with temperatures falling below zero;
• That Ron Liang was on duty in the gatehouse, observed the fall. He asked David Butt to investigate and he informed S/S Kareem about the incident;
• David Butt was on foot patrol, found Wong and assisted her back to the building; and
• S/S Kareem immediately informed the property manager, at which time Salivan was contacted to salt the entire property to prevent another incident from happening.

[18] There is nothing in incident report to suggest that G4S’s role went beyond doing anything more than what they did. The fact that Salivan was being notified to salt the entire property suggested that this was Salivan’s responsibility. There is no suggestion that G4S was required or expected to do anything in the area of Wong’s fall or elsewhere, as an interim measure pending Salivan’s arrival.

[19] It is this report that G4S relies on as notice to Wong that she ought to have made further inquiries about the nature of their staff’s duties.

The Law, Analysis and Conclusion

[20] G4S’s position appears to be driven more by the law than by the facts of this case, and when I speak of the law, I refer two cases in which they have been involved and have been successful in resisting motions to add them as defendants.

[21] In Wolkowicz v. Avignon Inc., 2011 ONSC 4804, Master Short refused to add G4S to an action against a condominium corporation, their property management company and Garda Security following a robbery within the plaintiff’s unit.

[22] There was an issue in that case as to whether it was actually Garda on duty on the night of this incident and, on the evidence before the court, it was determined that the plaintiff had failed to seek clarification of that issue in his notice letters or to press Garda for confirmation of that fact when their response was vague. The plaintiff was a lawyer by profession.

[23] The master held that the onus was on the plaintiff to lead cogent evidence of either stonewalling by the defendants or an affidavit asserting that it would be inappropriate and abnormal to investigate the identity of the security company within two years of the date of the theft.

[24] He then reviewed the affidavit that was filed, to assess if it was adequate for this purpose, deciding that it was not, as it essentially came down to the hired investigator saying that no one would give him the information.

[25] In Klein v. Stiller, 2015 ONSC 3705, a further request came before Master Short to add G4S as a defendant to an existing action, and this one failed, as well. That decision was under appeal at the time I heard this matter and though the Divisional Court released its decision, upholding the master, on May 26, 2016, neither counsel provided it to me. I therefore undertook my own research.

[26] The issue in Klein, though superficially similar to this matter, was actually quite different on its facts. In that case, a condominium resident had borrowed a cart from the security guard who manned the concierge desk. She had difficulties maneuvering the cart, leading to a bottle of olive oil dropping off, broking and spilling its contents in the underground parking foyer. When the cart was returned, the guard noticed the oil and later asked the resident about it. She then acknowledged what had transpired.

[27] In the interim, the plaintiff came along, slipped on the oily patch and was injured. This is where the case shifts factually from the matter before this court: right after the incident, the plaintiff approached the concierge desk to report the incident. The concierge was already aware of the spilled oil but had apparently taken no or inadequate steps to address it.

[28] The fact that the plaintiff approached the concierge desk after her fall suggests she was apparently aware that G4S had some role to play in dealing with internal clean ups, so the issue both for the master and for Stewart J. sitting in Divisional Court, was simply the ease with which the plaintiff could have identified the employee on duty at the time. Both concluded that this would not have been a difficult task, but that no effort appears to have been made to do so.

[29] In the case before me, there is no indication that Wong was aware that G4S was charged with dealing with the exterior of the property or with salting ice. There is no evidence to suggest how or why she should have been alive to that possibility. The issue therefore was not one of identification, but rather, one of whether G4S was or should have even been on Wong’s radar as another possible target for her suit.

[30] If there was no basis for Wong to have considered that they had duties, the breach of which related to her fall, how can she be found at fault for having failed to make inquiries as to what those duties were? In other words, how far must a plaintiff go to ensure that they have captured all possible defendants under the litigation net before the expiry of the presumptive limitation period?

[31] The Court of Appeal has recently asked similar questions in Fennell v. Deol, 2016 ONCA 249. There, Stewart J. concluded that while due diligence is a factor that informs the analysis of when a claim ought to have been reasonably discovered, lack of due diligence is not a separate and independent reason for dismissing a plaintiff’s claim as statue-barred.

[32] Though the issue arose in Fennel in the context of an appeal from a summary judgment motion dismissing the claim against Deol, in my view, a similar approach should be taken in the context of a motion to add a party after the expiry of the presumptive limitation period. A motion should not be dismissed on the basis of a lack of diligence.

[33] Even before Fennell, the court had already sought to dilute the somewhat heavy onus that some case law had thrust on plaintiffs as a means of demonstrating their due diligence. As Baltman J. noted (in Welsch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611), Lauwers J. (as he then was) stated in Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, that it is not in the interests of justice to impose an overly muscular level of pre-discovery due diligence; the parties should not have to conduct a pre-discovery form of discovery. Baltman J. confirmed that as each case is unique and will turn on its own facts, whether the steps taken in each case will be sufficient will also vary.

[34] In Todhunter v. Owles, 2015 ONSC 5656, Tausenfreund J. dealt with a motion for leave to appeal from a decision allowing a plaintiff to add municipal entities (the county and the town in which the accident had occurred) to an existing action after the expiry of the presumptive limitation period, when the municipalities had already been third parties by the defendant.

[35] In denying leave to appeal, he considered the arguments of the party seeking leave as follows:

The motion Judge in his reasons stated that “the subject motor vehicle collision occurred on November 23, 2011, in Canadian winter conditions.” These municipal third parties appear to advance the proposition that each action arising out of an MVA in winter conditions would require the addition of municipalities as defendants to address the standard of care regarding winter maintenance. In my view, that cannot and should not be so.

[36] In the case before this court, there appears to be no obvious reason why a condominium resident should expect that the building’s security staff could be responsible for a slip and fall on ice, particularly when another company was on contract to perform winter maintenance, including removal of snow and salting ice.

[37] This conclusion is bolstered by the fact that Wong’s apparent understanding is supported by an incident report prepared by the very entity she now seeks to add. There was no mention in the report of G4S’s involvement, aside from helping Wong to her feet and coordinating the response – which was, essentially, to ensure that Salivan would be contacted. The fact that the incident report indicated that freezing rain was excepted all day along with temperatures below zero, but then said nothing about interim measures they would be taking pending the arrival of Salivan moved G4S far off the radar as a proper or necessary party to this action.

[38] There was, in my view, no basis for Wong to have inquired what G4S’s duties were. To use Master Short’s words, such an inquiry would have been abnormal. I find that she made all reasonable and appropriate enquiries, so that this is not a case where she or her counsel can be said to have taken a laid-back approach to due diligence.

[39] Had Wong done as G4S now proposes and written a letter for further information in this regard, any response would more than likely have been received outside the presumed limitation period, in any event.

[40] Finally, an aspect of the motion that G4S ignored is the fact that the two year limitation period would only have been triggered after Wong became aware of G4S’s involvement, thus after they had received a response and after the presumptive limitation period had run its course. Even on G4S’s analysis, if the plaintiff ought to have twigged to their involvement when the January 8 memo was received, that is when the limitation period would have started to run.

[41] As a result, even if Wong had followed the course that G4S says would have been a proper one, they brought this motion within the limitation period, albeit not the presumptive limitation period, based on the doctrine of discoverability.

[42] It bears mentioning that the presumptive limitation period in this case expired about three weeks before notice of this motion was given to G4S.

[43] Using the analysis in Todhunter, I do not believe it is good practice or policy to expect all plaintiffs involved in incidents of any kind in their condominium to automatically sue their on-site security companies without reference to what they may have done of failed to do that contributed to the outcome.

[44] It is surprising to me that G4S has taken this position three times. They are effectively inviting residents of their clients’ buildings to automatically bring them into any and all law suits against condominiums within which they function for alleged negligence of any kind, for fear of learning later on that they may have been implicated in some way.

[45] On the basis of all of the foregoing, the motion is granted, with costs to the moving party fixed at $1948.09, payable within 30 days.

(original signed) Master Joan M. Haberman Released: June 27, 2016