Court File and Parties

CITATION: Carone v. Peel Condominium Corporation No. 766, 2016 ONSC 7821 DIVISIONAL COURT FILE NO.: DC-128269-ML COURT FILE NO.: 59283/09 DATE: 2016-12-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIA CARONE Plaintiff (Respondent)

– and –

PEEL CONDOMINIUM CORPORATION NO. 766, SIMERRA PROPERTY MANAGEMENT INC. and MOSSTEK LANDSCAPING INC., carrying on business as MVP LANDSCAPING, and CASEY JOHN MOSS, carrying on business as MVP LANDSCAPING Defendants (Applicants)

Counsel: Daniel J. Balena, for the Plaintiff Joel Cormier, for the Defendants, Mosstek Landscaping Inc. and Casey John Moss

HEARD: In-Writing

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] This is a motion by the defendants Mosstek Landscaping Inc. and Casey John Moss (the moving parties) for leave to appeal to the Divisional Court from the order of Glass J., dated September 14, 2016, dismissing their motion for summary judgment in relation to the plaintiff’s claim for personal injuries arising as a result of her alleged slip and fall on March 10, 2007. The fall is alleged to have occurred at the condominium property owned by the defendant Peel Condominium Corporation No. 766. At the time of the accident the moving parties are alleged to have been the snow removal contractors responsible for snow removal at the condominium location where the accident is alleged to have occurred.

[2] The moving parties were not added to the action until December 2013, nearly six years after the alleged fall.

[3] The moving parties brought a motion for summary judgment to have the action dismissed as against them on the basis that the limitation period for the claim was expired when they were added as defendants to the action. The only issue in the motion for summary judgment was whether the plaintiff had exercised due diligence in identifying the moving parties as potential defendants prior to the expiry of the limitation period.

[4] The motions judge concluded that the issue of the discoverability of the claim against the moving parties required the trial of an issue and dismissed their motion for summary judgment.

[5] The moving parties take the position that this case raises the following issues:

(a) Has the plaintiff satisfied the “reasonable diligence” requirement when the lawyer for the plaintiff makes no enquiries to ascertain the identity of other parties and relies on the named defendant to inform him of the identity of other parties;

(b) Should the court find that there is a genuine issue requiring a trial if there are no disputes as to material facts, credibility, or completeness of evidence on a motion for summary judgment.

The Test for Leave

[6] Rule 62.02 (4) of the Rules of Civil Procedure provide:

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted

[7] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[8] A “conflicting decision” under Rule 62.02(4)(a) must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[9] Under Rule 62.02(4)(b) it is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Motions for Summary Judgment

[10] Rule 20.01 of the Rules of Civil Procedure provides:

The court shall grant summary judgement if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[11] Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:

In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[12] These powers have been extensively reviewed by the Supreme Court of Canada in the case of Hyrniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87.

[13] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” Hryniak supra, at para. 50. In Hryniak the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[14] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

[15] The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. It is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief (Meridian Credit Union Limited v. Baig, 2016 ONCA 150, at para. 17)

The Decision From Which Leave is Sought

[16] The action involves an alleged slip and fall that took place on March 10, 2007. The plaintiff alleges that she slipped on a large patch of ice as she exited the condominium where she lived. The claims against the Peel Condominium Corporation No. 766 and Simerra Property Management Inc. (the initial co-defendants) were issued on January 23, 2009, within the two year limitation period provided by the Limitations Act, 2002, S.O. 2002, c. 24.

[17] The plaintiff’s counsel [Mr. Balena] wrote a series of eleven letters to the insurer of the initial co-defendants variously dated from September 2, 2008 to June 4, 2012. These letters were primarily concerned with the plaintiff’s damages and medical reports. At no point in these eleven letters did counsel for the plaintiff make enquiries of the initial co-defendants or the co-defendants’ insurer as to whether there was a winter maintenance contractor for the premises. The affidavit evidence filed on the summary judgment motion by counsel for the plaintiff explained that he never asked about the existence of a snow contractor because the conduct of the insurer in seeking damages documentation and pursuing potential settlement without referring to other potential parties led him to believe that there was no independent winter maintenance contractor involved in this claim.

[18] On July 2, 2013, after the limitation period for a claim for contribution and indemnity by the initial co-defendants had expired (s. 18 of the Limitations Act, 2002), counsel for the insurance company for the condominium corporation brought the existence of the snow removal contractor to the attention of the plaintiff’s counsel.

[19] The plaintiff brought a motion in writing on November 26, 2013 to add the moving parties as defendants to this action. The Order was granted on December 4, 2013.

[20] The moving parties brought a motion for summary judgment in August of 2015. The moving parties took the position that the claim against them was precluded by the two year limitation period in the Limitations Act, 2002, and that this issue could be decided on a motion for summary judgment because there was no genuine issue requiring a trial with respect to the limitation period defence. The only issue on the summary judgment motion was whether the question of discoverability of the moving parties could be decided on the basis of the summary judgment motion record or whether it was “a genuine issue requiring a trial”.

[21] In dismissing the motion for summary judgment the motions judge concluded (at para. 8) that “the fact situation displays a reasonable explanation that the discovery of another party was not made through any negligence of the Plaintiff”. He stated (at paras. 12 – 15):

There is no doubt that a Plaintiff has an obligation to search out information when advancing a claim. Mr. Balena, in his affidavit, states that he did exercise diligence in exploring the facts of the accident and the parties involved. At no time within the two year limitation period did he discover the existence of Mosstek and Casey. When he did make that discovery, the statement of claim was amended by adding Defendants.

If a party fails to make inquiries about possible claims in this case against Mosstek and Casey by not asking any question, that party might find herself outside a limitations period.

Mr. Balena through his affidavit states that he provided notice to Peel and Simerra and negotiated with them and their counsel. The whole of his work explored who should be liable and at no time did Peel and Simerra mention Mosstek and Casey. The Plaintiff says that only when Peel brought Mosstek and Casey to Mr. Balena’s attention and the fact that Peel was outside a limitation period did the Plaintiff have the commencement of a limitation period.

[22] Accordingly, the motions judge concluded (at para. 18):

[T]here is evidence that the Plaintiff did take reasonable steps to determine who might be liable for her injuries. Peel and the property manager had the opportunity to disclose the identity of Mosstek and Casey and failed to do so. The Plaintiff should not be deprived of the opportunity to advance a claim against them because their identity was not disclosed.

[23] The motions judge concluded (at para. 19): “there is a genuine issue requiring a trial”.

[24] Reading the decision it is unclear whether the motions judge purported to decide that the limitation period had not expired, or whether he decided only that there was a genuine issue requiring a trial on the question of whether the limitation period had expired. In other words, did he exercise his discretion under Rule 20 and decide that the limitation period issue raised by the moving parties should be decided by the trial judge, or did he decide that issue himself? His reasons are not entirely clear on this point. At para. 18 of his decision he appears to decide the limitation period issue in favour of the plaintiff when he states: “I am persuaded that there is evidence that the plaintiff did take reasonable steps to determine who might be liable for her injuries.”

[25] On the other hand, para. 19 indicates that the motions judge left the determination of that issue to the trial judge because he states: “There is a genuine issue requiring a trial”. If the motions judge concludes there is a genuine issue for trial it is not appropriate to decide the issue on the basis of a summary judgment motion.

[26] On this motion for leave to appeal the plaintiff has conceded that the motions judge did not decide the issue but left the determination of the discoverability issue to the trial judge. The plaintiff states (at para. 51 of her factum):

While the Motions Judge appears to have ruled that the Plaintiff acted with reasonable diligence in determining who might be liable for injuries, it is conceded that the issue of reasonable diligence as it pertains to discoverability remains a live and genuine issue for trial.

[27] Based on this concession I will proceed on the understanding that the motions judge did not decide the limitations period issue on this motion for summary judgment but let the issue of reasonable diligence as it pertains to discoverability to the trial judge.

Analysis

[28] There are two distinct issues raised by the moving parties in this application for leave to appeal. The first is whether the motions judge erred in his application of the legal principles in relation to motions for summary judgment, and the second is whether he erred in his application of the legal principles in relation to the discoverability of a claim under s. 5 of the Limitations Act, 2002. Based on the concession made by the plaintiff that the issue of discoverability remains to be determined by the trial judge, it is my view that only the first of these two issues actually arises in this case.

[29] Prior to the amendments to Rule 20 in January 2010 the courts often indicated a reluctance to decide limitation period issues on motions for summary judgment because they frequently involved factual disputes that could not be determined on a motion for summary judgment as that rule previously read. Accordingly, the pre-2010 cases must be approached with some caution in this regard. I note that the plaintiff on this motion for leave to appeal relies exclusively on pre-2010 amendment cases for the proposition that “generally speaking, it is not appropriate for a motions judge hearing a motion for summary judgment where the application of the discoverability rule is central to its resolution, to resolve this issue”. This is no longer a correct statement of the law, and there are many cases since 2010 where limitation period issues, including questions of discoverability, have been determined under Rule 20. (See for example: Panther Film Services Inc. v. Fred Tayar and Associates Professional Corporation, 2012 ONSC 7226; Miaskowski v. Persaud, 2015 ONSC 1654, affirmed by the Ontario Court of Appeal, 2015 ONCA 758; Munas v Yusuf, 2015 ONSC 5443; Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922.

[30] In Kassburg v. Sun Life Assurance Company of Canada, the Ontario Court of Appeal affirmed the authority of a judge to decide the limitation period issue on a motion for summary judgment. The Court of Appeal stated (at para. 52):

Consistent with the decision of the Supreme Court in Hryniak and the clear wording and purpose of the summary judgment rule, it was open to the motion judge to determine the issue of the limitation defence on a final basis on the record before him in this case. The parties put a comprehensive record before the court, …It is in the interests of justice that the issue was determined on a final basis by the motion judge at this stage. In my view, the motion judge did not err in making the declaration he did as part of his disposition of the summary judgment motion.

[31] Accordingly, there is no doubt that the motions judge could have decided the limitation period issue on the summary judgment motion. That being said, the question of whether he should have done so does not, in my view, meet the test for leave to appeal under Rule 62.02 (4).

[32] The courts have emphasized the exercise of powers under the new summary judgment rule attracts deference. The Ontario Court of Appeal has commented on the application of this principle in the context of motions for summary judgment to decide limitation period issues. In the case of Longo v. MacLaren Art Centre, 2014 ONCA 526 the Court of Appeal stated (at paras. 37 -39):

In Hryniak v. Mauldin, 2014 SCC 7, at paras. 81-84, the Supreme Court of Canada concluded that the exercise of powers under the new summary judgment rule attracts deference:

In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard (Housen v. Nikolaisen, at para. 8).

The question of whether a limitation period expired prior to the issuance of a statement of claim is a question of mixed fact and law. Thus, the issue for determination on this appeal is whether the motion judge made a palpable and overriding error in concluding that the claim was statute barred.

A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding of fact. The appellant must show that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of the error: Waxman v. Waxman (2004), 186 O.A.C. 201, at p. 267 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291.

[33] As indicated above, a “conflicting decision” under Rule 62.02(4)(a) must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts.” While the moving parties can point to cases in which the motion for summary judgment was granted, there is no error in principle with respect to the motions judge’s exercise of his discretion under Rule 20.

[34] Nor, in my view, does the decision in this case “go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice”. That is because the question of whether summary judgment should have been granted in this case does not involve any question of legal principle that remains unresolved. As indicated above, the Ontario Court of Appeal has confirmed the authority of the court to grant summary judgment in cases in which the facts relating to the limitation period dispute were known and essentially uncontroversial.

[35] The second issue is whether the motions judge erred in his application of the legal principles in relation to the discoverability of a claim under s. 5 of the Limitations Act, 2002. This is the issue on which the moving parties focused their leave application. The moving party takes the position that the requirement that the plaintiff act with due diligence to determine the identity of possible defendants requires the plaintiff’s counsel to make inquiries to ascertain who might be liable for her injuries. The “due diligence” requirement cannot be satisfied by waiting for the named defendants to point the finger at other possible tortfeasors. As LaLonde J. stated in Lockett v. Boutin, 2011 ONSC 2098, (affirmed by the Court of Appeal 2011 ONCA 809) at para. 36:

Waiting … for someone to inform you does not satisfy due diligence. A list of attempts to obtain the information under the solicitor’s signature has to be provided and it was not done in this case.

[36] See also: Auger v. Wood, 2014 ONSC 5306 at para. 64: “Reasonable diligence requires some positive or active efforts to ascertain the identity of potential defendants or evidence explaining why no such steps were possible”

[37] The legal principles regarding discoverability under s. 5(1)(a) of the Limitations Act, 2002, have also been addressed by the Ontario Court of Appeal in the MacLaren Art Centre case (at para. 42 - 43):

A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case…

[T]he plaintiff must act reasonably in investigating and determining whether he or she has a claim. A consideration of whether the plaintiff has acted reasonably will include an analysis of not only the nature of the potential claim, but also the particular circumstances of the plaintiff.

[38] The moving parties take the position that the decision of the motions judge that “there is evidence that the Plaintiff did take reasonable steps to determine who might be liable for her injuries” is inconsistent with the principles set out in Lockett and Auger. At the end of the day, however, the motions judge did not decide the limitation period in the plaintiff’s favour; he concluded that the motion for summary judgment was dismissed because “there is a genuine issue requiring a trial”. The plaintiff has conceded that this decision leaves the limitation period issue to the trial judge to decide.

[39] Since the limitation period issue remains undecided it would not be appropriate to grant leave to appeal on this issue. If the trial judge finds in favour of the position of the moving parties with respect to the expiry of the limitation period, the claim against the moving parties will be dismissed and they will not have to appeal at all. If, on the other hand, the trial judge rejects the limitation period defence, the moving parties will have the right to appeal the decision without leave if there is any finding of liability against them. Either way, the observations of the motions judge on this issue will not be the last word, and the moving parties will have at least one more opportunity to put forward their argument for a decision on the merits.

[40] The courts must be particularly cautious in granting leave to appeal from decisions in summary judgment motions that, like the present case, do not dispose of the case on its merits, but merely require the case to proceed to trial. There is a preference to decide all issues before a matter proceeds to an appellate court in order to avoid piecemeal appeals. In Hryniak the Supreme Court of Canada indicated that the purpose of the new summary judgment rule was to “provide a cheaper, faster alternative to a full trial” (para. 34). While summary judgment motions can save time and resources, they can also have the opposite effect if parties are permitted to appeal individual issues before the trial proceeds. This case provides an illustration of that possible negative consequence. If leave to appeal is granted, the trial will be delayed while the moving parties perfect their appeal and the parties await the outcome of the Divisional Court’s decision. Then the unsuccessful party may seek leave to appeal that decision to the Court of Appeal, delaying the trial even further. At this stage it may be faster to proceed to trial, and, depending on the outcome of the trial, all issues on appeal can be taken directly to the Court of Appeal in a single appeal.

Conclusion

[41] For these reasons the application for leave to appeal to the Divisional Court is dismissed.

[42] If the parties cannot agree on costs, the plaintiff may file written submissions 20 days after the date of these reasons. Such submissions will be limited to two pages plus a cost outline and any offers to settle. The defendants may file reply submissions 10 days thereafter on the same terms.

Justice R.E. Charney

Released: December 14, 2016