ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-091100-00
DATE: 20120830

BETWEEN:

Erin Bailey and Charles Bailey minors by their Litigation Guardian, Nancy Bailey, and Nancy Bailey personally Plaintiffs – and – Canadian Athletes Now and Wow Group Defendants

Darcy W. Romaine, for the Plaintiffs
M. Edward Key, for the Defendant Canadian Athletes Now

HEARD: August 27, 2012

REASONS FOR DECISION

Edwards j.

Background

[ 1 ] The defendant Canadian Athletes Now moves to dismiss the action on the basis of an expired limitation period. The plaintiff had attended a skating performance and fundraising event at the Granite Club on December 1, 2005 when she sustained an injury in a slip and fall on or near the ice rink at the Granite Club. A separate action had been commenced on November 29, 2007 by the plaintiff naming the Granite Club as a defendant.

[ 2 ] Prior to the commencement of the action involving the Granite Club counsel for the plaintiff sent a notice letter to the insurer for the Granite Club in late March of 2006. Correspondence continued between plaintiff’s counsel and the insurer for the Granite Club during the course of which correspondence no reference was made by the insurer for the Granite Club to the potential involvement of any other party in relation to the events of December 1, 2005.

[ 3 ] When the plaintiff attended at the Granite Club on December 1, 2005 she knew that the event was a fund raiser for Olympic Athletes. On the dinner table that evening was promotional material for the fundraising event. The promotional material was apparently read by the plaintiff which should have drawn to her attention the involvement of the Canadian Athletes Fund in the skating gala. Nowhere in the promotional material, however, is there any information that would draw to the attention of the plaintiff the potential involvement of Canadian Athletes Now in the setup of the ice rink where the plaintiff had the misfortune to fall. The Statement of Defence filed by the Granite Club on May 20, 2008 references the involvement of Canadian Athletes Now and the retainer by Canadian Athletes Now of the services of the Wow Group. The Statement of Defence of the Granite Club references the involvement of the Wow Group in the placement of a wooden platform around the exterior of the ice surface which wooden platform extended slightly over and covered a portion of the ice surface. Nowhere in the Statement of Defence of the Granite Club is there any indication that Canadian Athletes Now was involved in the actual placement of the wooden platform.

[ 4 ] A third party claim was issued by the Granite Club naming Wow Group Inc. and Canadian Athletes Now as third parties. The third party claim was issued on July 25 th , 2008 and served on plaintiff’s counsel on August 9, 2008.

[ 5 ] The issue before this court is whether or not the plaintiff through the exercise of reasonable due diligence could have discovered not only the existence of Canadian Athletes Now but also the facts upon which a cause of action could exist to establish a claim against Canadian Athletes Now. The onus with respect to establishing such reasonable due diligence is upon the plaintiff.

[ 6 ] Counsel for Canadian Athletes Now argues that the plaintiff cannot possibly succeed in establishing due diligence given that the affidavit evidence before this court establishes that the plaintiff made absolutely no inquiries whatsoever with respect to what steps were taken to identify the existence of Canadian Athletes Now nor is there any reasonable explanation as to why such information was not attainable with due diligence within the two year limitation period. In that regard counsel for Canadian Athletes Now relies on the evidence of the plaintiff from her examination for discovery which was conducted on October 21, 2010. At her discovery the plaintiff essentially testified that she did not make any inquiries as to who had organized the event nor did she take any steps to contact the Granite Club after her fall to determine who organized the event.

[ 7 ] There are a number of competing policies in play on a motion such as the one before this court where the defendant moves to dismiss an action on the basis of an alleged expired limitation period. Lauwers J. in Madrid v. Ivanhoe Cambridge Inc. et al ., 2010 ONSC 2235 references those competing policies as follows:

The dominant policy thrust of this system of justice is that cases should be heard on the merits. Another policy thrust found in the Limitations Act 2002 , is to encourage a plaintiff to commence an action as soon as possible. But a third and tempering policy thrust is found in Section 5 of the Limitations Act 2002 , which codifies discoverability.

[ 8 ] Lauwers J. in Madrid goes on in his reasons to deal with the question of unexpected or unusual triggers that might cause a plaintiff to make further inquiries with respect to the possible involvement of other parties. The comments of Lauwers J. are particularly apropos to the facts before this court where he noted:

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 section 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.

[ 9 ] Plaintiff’s counsel on the evidence before this court sent what would appear to be a standard notice letter which was ultimately responded to by the insurance adjusters for the Granite Club. If those insurance adjusters had drawn to the attention of the plaintiff’s counsel the potential involvement of Canadian Athletes Now, not only in the fundraiser itself but also with respect to the set up of the ice rink that ultimately may have been causative of the plaintiff’s fall then it could be said that the plaintiff and her lawyers would have been on notice of a potential “trigger” requiring further due diligence. I am satisfied on the evidence before me that there was nothing that would have triggered the potential involvement of Canadian Athletes Now in terms of the setup of the ice rink and therefore the potential for a cause of action against Canadian Athletes Now. Under the circumstances there was nothing then to trigger in the mind of either the plaintiff or her lawyers that there may be facts upon which a cause of action could be established as against Canadian Athletes Now. While the plaintiff did have knowledge of the involvement of Canadian Athletes Now in the fundraiser there is nothing on the evidentiary record to suggest that the plaintiff could, through the exercise of due diligence, have established that Canadian Athletes Now was not only involved in the fundraising component of the events of December 1, 2005 but also may have been potentially involved in the set up of the ice rink.

[ 10 ] The motion is therefore dismissed with costs which on the agreement of counsel I am fixing in the amount of $2,806.00 payable within 30 days to the plaintiff.

Justice M. Edwards

Released: August 30, 2012