CITATION: Ali v. City of Toronto, 2021 ONSC 5867
DIVISIONAL COURT FILE NO.: 479/20
DATE: 20210902
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
AMANDA ALI
A. Fabio Longo, for the Appellant
Plaintiff / Appellant
- and -
THE CORPORATION OF THE CITY
Alexander B. Wilkinson, for the
OF TORONTO
Responding Party VBN Paving Limited
Defendant / Respondent
Heard by Videoconference: Feb. 23, 2021
AMENDED REASONS FOR DECISION[^1]
D.L. Corbett J.:
[1] This is an appeal from the final order of Associate Justice McGraw dated September 29, 2020, dismissing the plaintiff’s motion to add VBN as a defendant.[^2]
[2] The claim is in respect to injuries allegedly suffered by the plaintiff when she fell on snow and/or ice on a sidewalk. It is not contested that the City had responsibility for clearing snow and ice from the sidewalk.
[3] During the course of the proceeding the plaintiff learned that the City had contracted with VBN to clear snow and ice from the sidewalk where the plaintiff fell. On learning this information, the plaintiff sought to add VBN as a defendant.
[4] The Associate Justice dismissed the motion to add VBN, concluding that the plaintiff had not shown reasonable diligence inquiring into the identity of any private contractor that might have been engaged to clear snow and ice on the sidewalk. He noted that a line of authority has emerged in the Associate Justices’ jurisprudence finding that reasonable diligence requires that such inquiries be made early in the plaintiff’s investigation of a slip and fall claim involving snow and ice.
[5] I would allow the appeal. The Associate Justice treated the emerging jurisprudence below as creating a principle of general application. With respect, to the extent that the Associate Justices’ jurisprudence does create such a principle, it is wrong in law. The proper inquiry is context specific. Where a property is obviously under the control of a large business – such as a downtown office-building or a shopping mall, it may be fair to conclude, as a matter of common sense and knowledge, that a private contractor may well have been hired to clear snow and ice. Outside a small business or private residence, it may not be apparent that it is necessary to make such an inquiry. Where, as here, the party responsible for clearing snow and ice is the municipal government, there must be some factual record to establish that a reasonable person would suppose that the City was undertaking this work with a private contractor rather than using its own employees. There was no such evidence on this motion.
Facts
[6] On February 15, 2017, Ms Ali broke her ankle when she fell on a sidewalk on Birchlea Avenue near 31st Street in Toronto. On February 24, 2017, Ms Ali gave Toronto notice of her claim. Ms Ali commenced this proceeding against Toronto on October 27, 2017. The statement of claim was served on October 31, 2017.
[7] Discussion ensued between an adjustor for Toronto and counsel for the plaintiff. There is no evidence that any information provided by the adjustor should have led the plaintiff or her counsel to conclude that anyone other than the City was liable for her claims.
[8] On February 16, 2018, the adjustor advised that the action was being assigned to counsel.
[9] The City delivered a Notice of Intent to Defend on February 20, 2018. The City served two demands for particulars, which the plaintiff answered, and Toronto delivered its statement of defence on October 31, 2019.
[10] Two months before delivering its statement of defence, on July 24, 2019, Toronto’s counsel advised counsel for the plaintiff that Toronto had contracted with VBN for snow clearing, sanding and salting of sidewalks where Ms Ali fell. The plaintiff moved to add VBN as a party on August 23, 2019, roughly a month after learning of VBN. There is no evidence that any information provided prior to July 24, 2019 should have led or did lead the plaintiff or her counsel to consider that anyone other than the City was liable.
[11] There is no evidence that the plaintiff or her counsel (a) knew of VBN prior to July 24, 2019, (b) knew or had any information from which an inference could be drawn that Toronto had contracted with a third party for services material to the claim, (c) was told by Toronto or its agents of any circumstances that could lead to an inference that Toronto had contracted material services to a third party.
The Law
[12] At any stage, the court may add a party, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment: Rule 5.04(2).[^3]
[13] A party will not, however, be added to a proceeding if the applicable limitation period has expired.[^4] The Associate Justice correctly cited the applicable limitations law and correctly concluded that the issue on this motion was solely whether the plaintiff had used reasonable diligence in trying to identify possible tortfeasors to sue in this case.
[14] The Associate Justice cited Madrid v. Ivanhoe Cambridge Inc., per Lauwers J. (as he then was), which stands for the proposition that, in cases such as the one at bar, without a “trigger” or reason to be put on notice, a plaintiff has no duty to inquire into the existence of possible additional defendants. To quote from Madrid:
In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s.5 of the Limitations Act, 2002. It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendants and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery.[^5]
[15] The Associate Justice then stated as follows in respect to the principle in Madrid:
More recent case law has clarified that the principles in Madrid do not release plaintiffs or their counsel from their obligations to make any inquiries at all.[^6] There are circumstances where a plaintiff is expected to make inquiries or risk that the court may find that their failure to do so constitutes a lack of due diligence causing their motion to fail.[^7] In recent cases, the courts have consistently held that requiring plaintiffs injured in slip and falls and other accidents involving snow and ice to inquire into the possible existence of winter maintenance contractors does not constitute a “pro forma” letter as described in Madrid. Further, a plaintiff’s failure to make these inquiries has been consistently found to constitute a lack of reasonable diligence ultimately leading to the denial of leave to amend.[^8]
[16] The cases relied on by the Associate Justice in this summary can be distinguished from the present case. In Coté, Charney J. found that the plaintiff knew about the involvement of a security company at the time of her accident, as security personnel attended her at the scene. These facts were sufficient, in Charney J.’s view, to put the plaintiff on notice that the security company was a potential defendant as an “occupier” of the premises within the meaning of the Occupier’s Liability Act.[^9] In Laurent-Hippolyte, Associate Justice Sugunasiri (as she then was) found that the plaintiff adduced no evidence to explain a failure to make inquiries for a period of four years. A related action had identified a defendant as “Doe Contracting” and should have put the plaintiff on inquiry. Even the evidence of subjective knowledge was absent: it was an affidavit on belief (not information and belief) from a paralegal in plaintiff’s counsel’s firm, rather than from the plaintiff. All of this was in the context of a claim against the Province for failure to clear snow and ice from Highway 401 – a context where it might be presumed that snow removal and maintenance would likely be contracted out. The facts in both Coté and Laurent-Hippolyte established a “trigger” and a lack of diligence in response to that trigger. In the case at bar there is no trigger and the context establishes no basis for the plaintiff to suppose that anyone other than the City was responsible.
[17] That said, it is a fair summary of recent cases to say that several Associate Justices have stated a principle that the existence of hazardous snow and ice is sufficient to require a plaintiff to ask a known tortfeasor (in this case the City) whether there was a private contractor involved in snow removal. In these cases, failure to make the “simple inquiry” is a failure of due diligence within the meaning of limitations law. Although Laurent-Hippolyte and Coté may be distinguished as I have done, they both contain language that could support the Associate Justice’s statement of principle in the instant case and the line of other Associate Justices’ decisions on which he relies.
[18] I disagree with this analysis. It runs directly counter to the principle in Madrid and in Galota.[^10] It also runs counter to the goal of encouraging efficient and timely resolution of disputes: it should behoove a primary tortfeasor to be forthcoming about the identity of other tortfeasors, to which it may seek to shift liability. Under the principle developed by the Associate Justices below, it rather may behoove a primary tortfeasor to “chest its cards” until the limitation period has run in the hopes that non-disclosure may defeat the claim, in whole or in part.
[19] In my view, Madrid is good law and has not been qualified or limited by subsequent cases. To the extent that Coté says otherwise, I disagree with it. To the extent that subsequent Associate Justices’ decisions have created a principle that the presence of snow and ice is always, itself, a “trigger” within the meaning of Madrid, those cases are in error.
[20] On a review of the facts in the case at bar, the plaintiff believed she had sued the proper tortfeasor and she was given no information that should have put her on notice that there was also a private contractor with potential liability. The claim against VBN was not discoverable with the exercise of reasonable diligence until the City told the plaintiff of VBN’s role in July 2019. It follows that the claim against VBN is not out of time. The appeal is allowed, the plaintiff’s motion to add VBN is granted, with costs in this court and before the Associate Justice to be agreed within thirty days, failing which the parties shall exchange brief costs materials and provide them to this court by October 15, 2021.
D.L. Corbett J.
Released: September 2, 2021
CITATION: Ali v. City of Toronto, 2021 ONSC 5867
DIVISIONAL COURT FILE NO.: 479/20
DATE: 20210902
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
AMANDA ALI
Plaintiff / Appellant
- and -
THE CORPORATION OF THE CITY
OF TORONTO
Defendant / Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: September 2, 2021
[^1]: This decision was amended the day after its release to correct minor typographical errors.
[^2]: Ali v. Toronto (City), 2020 ONSC 5888 (Associate Justice McGraw).
[^3]: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, para. 25, and the cases cited therein.
[^4]: Limitations Act, s.21(1) and Morrison v. Barzo, 2018 ONCA 979, paras. 29-32 and Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 CPC (8th) 1, paras. 28 and 31.
[^5]: Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, para. 15, per Lauwers J. (as he then was), approved in Galota v. Festival Hall Developments Limited, 2016 ONCA 585, para. 27.
[^6]: Coté v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588, para. 33.
[^7]: Coté v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588, para. 33, 35; Laurent-Hippolyte v. Blasse, 2018 ONSC 940, paras. 26-27.
[^8]: Ali v. Toronto (City), 2020 ONSC 5888, para. 22 (Associate Justice McGraw).
[^9]: Coté v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588, para. 35.
[^10]: Galota v. Festival Hall Developments Limited, 2016 ONCA 585, aff’g 2015 ONSC 6177.