CITATION: Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545
DATE: 20100806
DOCKET: C51024
COURT OF APPEAL FOR ONTARIO
Moldaver, Goudge and Armstrong JJ.A.
BETWEEN
Sasha Safai, a minor under the age of 18 years by his Litigation Guardian, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai and Gity Safai personally
Appellants (Plaintiffs)
and
Bruce N. Huntley Contracting Limited
Respondent (Defendant)
AND BETWEEN
Sasha Safai, a minor under the age of 18 years by his Litigation Guardian, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai and Gity Safai personally
Appellants (Plaintiffs)
and
Markham Property Services Ltd.
Respondent (Defendant)
C. Kirk Boggs, for the appellants
Geoffrey D. E. Adair, Q.C., for the respondents
Heard: March 25, 2010
On appeal from the judgment of Justice A. Mullins of the Superior Court of Justice dated August 26, 2009.
ARMSTRONG J.A.:
INTRODUCTION
[1] The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On February 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on September 27, 2006, they commenced a separate action against the company responsible for winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgment based on the expiry of the six year limitation period. Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgment. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
[2] The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
FACTUAL BACKGROUND
[3] On February 17, 2000, in the early evening, Ms. Safai attended at an accountant’s office to discuss the annual tax returns and financial statements of her husband’s business. The office is located in a commercial building on Woodbine Avenue in Markham, Ontario. After her meeting, Ms. Safai walked towards her car in the parking lot of the building. As she approached her car, which was parked about 100 metres from the building entrance, she slipped and fell on a patch of ice. She injured her ankle in the fall and the next day she attended at the hospital and discovered that she had fractured her ankle. As a result of the injury, she did not resume driving her car for six weeks and did not return to work for some 11 weeks.
[4] In March of 2000, Ms. Safai turned her mind to whether she should commence legal proceedings in respect of her injury. At that time, she did not know the name of the owner of the building. She had no information concerning the ownership of the parking lot or who was responsible for its maintenance. As a result, she contacted the accountant’s office and was advised that the owner of the building was the “Huntley Group”.
[5] Ms. Safai met with a lawyer on March 13, 2000 and retained him to represent her and her family in respect of her accident. She advised the lawyer that she believed the owner of the property where she fell was the Huntley Group. Immediately following the meeting, the lawyer noted in his diary the limitation period for Ms. Safai’s loss would expire on February 17, 2006 – six years from the date of her fall.
[6] On the following day, her lawyer instructed his clerk to arrange a title search of the property where Ms. Safai fell and to ascertain the registered owner of the property.
[7] The title search was done in May 2000. Sometime between May 4 and May 29, 2000, the lawyer learned that the registered owner of the property is Bruce N. Huntley Contracting Limited (“Huntley”). On May 29, 2000, the lawyer sent a letter to the registered owner of the property concerning his client’s claim, which was acknowledged by Huntley on June 8, 2000.
[8] Ms. Safai’s lawyer subsequently received a copy of a letter dated October 19, 2000 from Huntley’s insurers which indicated that Markham Property Services Ltd. (“Markham”) was responsible for snow removal services at the Huntley property.
[9] Although Ms. Safai’s lawyer had noted the expiry of the limitation period as February 17, 2006, he did not issue the statement of claim against Huntley until February 23, 2006. In an affidavit filed by the lawyer, he stated that his failure to issue the statement of claim prior to February 23, 2006 was through inadvertence. No explanation is given for the issuing of a separate statement of claim against Markham on September 27, 2006.
[10] Both respondents moved in the Superior Court to dismiss the actions pursuant to rule 20 of the Rules of Civil Procedure on the basis that the actions had been commenced after the expiry of the six year limitation period.
THE REASONS OF THE MOTION JUDGE
[11] It was accepted by all parties that the Limitations Act, R.S.O. 1990, c. L-15 applied to the appellants’ claims and that the limitation period in accordance with s. 45(1)(g) of the Act is six years. The appellants, as indicated, relied upon the rule of discoverability and submitted that there were genuine issues for trial as to when Ms. Safai knew or ought to have known the identity of the owner of the property where she was injured and the contractor who had been employed to provide snow removal services for the parking lot.
[12] The motion judge said at paragraphs 22 and 23 of her reasons for judgment:
[22] It is also apparent that the precise identities of the defendants were not known to the plaintiffs for several weeks, insofar as the property owner and several months so far as the maintenance contractor. It is contended, by the plaintiff, that so long as reasonable diligence is shown in that respect, the limitation period is moveable and does not start to run, until that information is in hand. I do not accept that the doctrine of discoverability encompasses such a concept of moving the yardsticks of calculation in the manner suggested by the plaintiffs.
[23] There is no evidence before this court that there were casual circumstances giving rise to a cause of action, or potential parties unknown or unknowable or with reasonable diligence to the plaintiffs, such that the doctrine of discoverability has any application. It is clear on these facts that all of the elements of the plaintiffs’ cause of action were known within six years from the date she fell. Other than the inadvertence of the lawyer, there is no circumstances which contributed to a delay in issuing the claims herein to a time beyond the natural six year period prescribed by the Act.
THE APPEAL
[13] The appellants raise the following grounds of appeal:
(i) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(ii) The motion judge erred in failing to conclude on the test for summary judgment that the respondents had failed to establish that the limitation period in both actions had expired.
ANALYSIS
[14] The discoverability rule has been developed and discussed in a number of cases in this court, other provincial appellate courts and the Supreme Court of Canada since the mid-1980s. There is a clear and concise articulation of the rule by Dubin J.A. in Consumers Glass Co. v. Foundation Co. of Canada (1985), 1985 CanLII 159 (ON CA), 51 O.R. (2d) 385 at p. 398:
In my opinion, in cases which are based on a breach of duty to take care, the cause of action does not arise, and time does not begin to run for the purposes of the Limitations Act, until such time as the plaintiff discovers or ought reasonably to have discovered the facts with respect to which the remedy is being sought, whether the issue arises in contract or in tort.
In Peixeiro v. Haberman 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, Major J., writing for the court, made it clear at para. 36 that the discoverability rule is a rule of general application to be employed “to avoid the injustice of precluding an action before the person is able to raise it”. At para. 37 of Peixeiro, Major J. adopted the view of Twaddle J.A. in Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.), at p. 206 that the discoverability rule is a rule of construction:
In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from “the accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.
[15] The discoverability rule is concerned with the time that the limitation period begins to run. See Coutance v. Napoleon Delicatessen (2004), 2004 CanLII 10091 (ON CA), 72 O.R. (3d) 122 (C.A.) at para. 22 and Zapfe v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397 at para. 47.
[16] As I read the reasons for judgment of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. Indeed, she expressly referred to its effect in those terms. I find no error in respect of her articulation of the rule. Accordingly, I would not give effect to the appellants’ first ground of appeal.
[17] I agree with counsel for the respondent that the sole issue raised by this appeal is whether or not the motion judge was correct in refusing to apply the discoverability rule in these two cases. This is a different but clearer way of expressing the appellants’ second ground of appeal.
[18] On the second ground of appeal, the appellants submit that the name of the property owner and the name of the company responsible for winter maintenance services were essential elements of the cause of action and the time did not run until the appellants knew these names or by the exercise of reasonable diligence could ascertain them. The appellants rely on the following statement of Borins J.A. in Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.) at p. 170:
While it is true that many of the cases in which it [the discoverability rule] has been applied concern a plaintiff’s discovery of the extent of an injury or the delayed effect or result of a defendant’s negligence, this case concerns the discovery of a tortfeasor. The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts or omissions, which constitute liability.
In my view, counsel for the appellants states the rule too broadly and the above statement from Aguonie does not go as far as he suggests. The proposition of the appellants, taken literally, would mean that in every motor vehicle accident when the ownership of the defendant’s vehicle was not immediately known, the limitation period would be extended until such time as a routine search of the motor vehicle register could be made. Thus, the limitation period would not commence on the date of the accident but on the date that the routine motor vehicle search revealed the owner’s name. This defies common sense and is not what the discoverability rule is intended to accomplish. As has been said by this court in Zapfe at para. 19:
The discoverability principle is an interpretive tool of general application which guides the interpretation of limitation statutes. Consideration of whether it applies in any given case is concerned with balancing fairness for both the plaintiff and the proposed defendant.
[19] I now turn to the appellants’ claim against the owner of the property, Huntley. On February 17, 2000, Ms. Safai knew that she had fallen and injured her ankle. She knew that she likely had a claim for her injuries against the owner of the property. As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period. It is not an insignificant fact that the appellants’ lawyer recorded the expiry date of the limitation period in his diary as the six year anniversary date of the accident.
[20] I take a different approach to the claim against Markham. In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. As of the date of the accident, it was reasonable for Ms. Safai to assume that she may have a cause of action against the owner of the property. However, on the record before the motion judge she did not know that the owner of the property had contracted out the winter maintenance for the property to a third party. This information may not have been available until her lawyer was advised by the receipt of the letter dated October 19, 2000 from the insurer for the owner of the property. Unlike the name of the owner of the property, there was no simple procedure, such as a search of a public register, to ascertain that the winter maintenance responsibilities were contracted out to a third party. In these circumstances, it would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
DISPOSITION
[21] I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action.
COSTS
[22] Both Markham and Huntley were represented by the same counsel. On the argument of the appeal, counsel advised that if there was divided success, then it would be appropriate to make an order of no costs in this court and below. Accordingly, I would set aside the costs order below and order no costs both before the motion judge and in this court.
Signed: “Robert P. Armstrong J.A.”
“I agree M. J. Moldaver J.A.”
“I agree S. T. Goudge J.A.”
RELEASED: “MJM” AUGUST 6, 2010