COURT FILE NO.: 12-53327
DATE: April 16th, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rebecca Pammett et. al., Plaintiffs
AND:
1230174 Ontario Inc. et. al., Defendants
BEFORE: MASTER MACLEOD
COUNSEL: Samantha A. Iturregui, for the Defendant, 1230174 Ontario Inc. (Moving Party)
Katie Gauthier, for the Defendant, Variety Property Maintenance, Landscaping & Design Inc. (Moving Party)
Kelly P. Hart, for the Plaintiffs (Responding Parties)
HEARD: March 18th, 2014
ENDORSEMENT
[1] This is a summary judgment motion. The defendants seek dismissal of this action which was commenced on January 11th, 2012 because they say that the action is barred by the expiry of the limitation period. Though the plaintiffs argue otherwise, the evidence supports this conclusion and there is no genuine issue requiring a trial. As a consequence the action must be dismissed pursuant to Rule 20.02 (a).
[2] It is appropriate to write careful reasons when dismissing an action because of the grave consequences for the plaintiffs. The justification for dismissing an action under the summary judgment rule is that a trial is not necessary to determine the issue. It is important that plaintiffs understand why the court has reached that conclusion.
[3] Another matter requires elucidation and that is the impact of the recent Supreme Court of Canada decision in Hyrinak v. Maudlin.[^1] The Supreme Court has written both specifically about the interpretation and application of Rule 20 and generally about the importance of summary judgment in Canadian civil procedure. While the focus in that decision and in the decision of the Court of Appeal which was under review[^2] is largely on the exercise of certain new provisions of the rule available only to judges, it is important to also consider the impact of the rule amendments and the Supreme Court decision on the rest of the rule. This appears to be the first such motion argued before a master in Ontario since the Supreme Court released its decision.[^3]
Background
[4] On January 21, 2009 the plaintiff, Rebecca Pammett, slipped and fell at the entrance to a Tim Horton’s Restaurant located at 1260 Merivale Road in the City of Ottawa. She sustained a significant fracture to her arm and alleges the cause was the icy condition of the “curb, just in front of the door of the store”.
[5] The restaurant is a free standing building in a parking lot at the corner of Merivale Rd. and Central Park Drive. It is apparently a typical “Timmys” at the corner of the plaza parking lot and having inside seating and a drive through. In the same plaza though separate from the restaurant there is a strip mall with offices and other retail establishments. The restaurant is operated by McBride Corp., a franchisee of the Tim Horton’s chain. McBride Corp. is not a party to this proceeding but has been sued in an earlier action.[^4]
[6] The premises in which the restaurant is located are owned by the defendant 1230174 Ontario Inc., a subsidiary of Ashcroft Homes (hereinafter “Ashcroft”). McBride Corp. is a tenant of Ashcroft[^5]. The defendant, Variety Property Maintenance, Landscaping & Design Inc. (hereinafter “Variety”) is the snow removal contractor hired by Ashcroft to keep the plaza clear of ice and snow.
[7] Of course this network of tenancies and contractual arrangements was not apparent to the plaintiff when she slipped and fell. In fact it was her belief that the parking lot, sidewalk and restaurant were all part of the Tim Horton’s operation. It will be her evidence that after she fell, a Tim Horton’s employee spread salt on the sidewalk by making use of the nearby salt bin located outside the restaurant. The plaintiff will also state that a Tim Horton’s staff person took an incident report and store personnel assisted her until the ambulance arrived. For purposes of this motion I accept that initially in the plaintiff’s eyes it was the operator of the Tim Horton’s which was in control of the location where the accident occurred.
[8] The plaintiff consulted counsel shortly after her accident. Jeffrey Meleras, who at the time was a lawyer at Menzies & Coulson, was retained and shortly thereafter put McBride Corp. on notice. McBride then put Ashcroft on notice and Ashcroft in turn notified Variety. McBride put Ashcroft on notice on January 29th, 2009 and Ashcroft subsequently put Variety on notice on March 11th, 2009.
[9] Though the plaintiff did not have actual knowledge concerning the roles of Ashcroft and Variety at the moment of the accident, the fact that there were a number of parties with separate insurance who were interested and concerned with the plaintiff’s accident was revealed to Mr. Meleras at an early date.
[10] On March 30th, 2009 adjusters for both McBride and Ashcroft attended at Mr. Meleras’ office to take a statement from the plaintiff. On that date Mr. Meleras knew that McBride was a tenant and Ashcroft was the owner of the plaza. Subsequently an adjuster was also appointed for Variety and this was made known to the plaintiff’s counsel on April 22nd, 2009. By that date at the latest, the plaintiff and her counsel knew that McBride leased the restaurant premises from Ashcroft (the owner of the plaza) and that Ashcroft had a snow removal contract with Variety. Of course the plaintiff was not privy to exact contractual relationship or the precise definition of the demised premises under the lease but she knew in general terms there was a tenant, a landlord and a snow removal contractor.
[11] Not only did Mr. Meleras know of this relationship, he also knew who the insurers were and indeed he began to communicate with all of the insurers attempting to resolve the claim without the need for litigation. The record shows that plaintiff’s counsel was sending medical documentation to the adjusters for both McBride and Ashcroft and subsequently to the adjuster for Variety as well. In a letter dated January 25th, 2010 for example he sent copies of the Ottawa Hospital clinical notes to all three insurers and requested reimbursement from each of them. On December 9th, 2010 he sent a comprehensive offer to settle to all three insurers. In that letter he states as follows:
“As you are aware, Rebecca’s limitation date is January 21st, 2011, and we would appreciate it if you could give this offer some thought collectively in the coming days.”
[12] On January 20th, 2011 a statement of claim was issued. The statement of claim named only McBride Corp. as a defendant. It is Mr. Meleras’ evidence that though he knew there was a landlord and a snow removal contractor, he had no reason to believe McBride was not the party exercising control over the sidewalk.
[13] A statement of defence was delivered by McBride on February 9th, 2011. Interestingly, neither the original statement of claim nor the original statement of defence specifically pleaded or relied upon the Occupier’s Liability Act. The February 9th statement of defence in fact contained only a broad disclaimer denying that the defendant was negligent, the usual allegations that the plaintiff was the author of her own misfortune and that her damages were exaggerated. Read carefully however it did deny the paragraphs asserting that McBride was responsible for the condition of the sidewalk.
[14] Nothing in the defence itself asserted liability against any other party. The covering letter however provided a draft affidavit of documents in which the lease was listed in Schedule A. In addition counsel for McBride clearly indicated that he was seeking instructions to issue a third party claim against both Ashcroft and Variety. On March 7th, 2011 McBride took that step. In the third party claim McBride asserts that it was the responsibility of Ashcroft to maintain the common areas of the premises including the sidewalk and parking lot. That is the first time that McBride formally alleged it was not responsible for the sidewalk.
[15] Discoveries took place in the McBride action in September and November, 2011. Following those discoveries the plaintiff was apparently advised that McBride took the position it had no liability and that the other parties took the position any action against them was statute barred. The statement of claim in this action was then issued on January 11th, 2012.
[16] To complete the narrative, on March 5th, 2013 McBride brought a motion for summary judgment in its action. This motion was unsuccessful. Mr. Justice R.J. Smith found that there was a genuine issue requiring a trial as to whether or not McBride was an occupier and also found it was possible McBride could be liable to the plaintiff on ordinary principles of negligence even if it is not an occupier.[^6] The potential liability of McBride in the original action therefore remains an open question. McBride did amend its pleading to assert that it was not an occupier and as noted it has third partied both Ashcroft and Variety.
[17] It is of course possible that McBride could be successful at trial either because it was not the tenant of the sidewalk in front of the store, because it has no duty of care to individuals crossing the sidewalk to enter the store or because, if it is an occupier, it has a statutory defence under the Occupier’s Liability Act. In that event, the failure of the plaintiffs to join these defendants at the time of the McBride action will have been a fatal error if the new action is now statute barred. Though these defendants are third parties in that action, their potential liability as third parties is only to indemnify McBride and not directly to the plaintiff.
[18] This is therefore a very important motion. I recognize that the consequences for the plaintiffs if they are out of time will be harsh. This however is the consequence imposed by statutes of limitations and it will be no less harsh if the finding is made at trial. Indeed, it will be worse because of the cost consequences. The issue on a summary judgment motion is not whether the consequences of judgment will be harsh but whether it is necessary to have a trial to decide the issue.
The nature of a summary judgment motion
[19] Before turning to the evidence, it is necessary to consider the amendments to Rule 20 as interpreted by the Supreme Court. The test to be applied on a summary judgment motion is defined by the wording of the rule itself and by the governing jurisprudence.
[20] Rule 20 as it read prior to January 1st, 2010, with minor amendments, has been part of the Rules of Civil Procedure since the rules were introduced in 1984. As originally drafted the Rule provided that judgment was to be granted if there was no “genuine issue for trial” with respect to a claim or a defence. The rule provided that the motion could be heard by a judge or a master with the single exception that if the “only genuine issue is a question of law, the court may determine the question” and in that case the master was to adjourn the motion to a judge. A great deal of jurisprudence had been written under the rule most of which was to the effect that there was a “genuine issue” if there was a genuine question of credibility. Summary judgment was essentially limited to cases in which the responding party had no chance of success at trial.
[21] On January 1, 2010 significant amendments to the rule came into effect. These were designed to make summary judgment more available in appropriate cases and were triggered by recommendations made by the Honourable Coulter Osborne in his review. The most significant of these changes were as follows:
i. Change of the wording of the rule from “no genuine issue for trial” to “no genuine issue requiring a trial” (Rule 20.04 (2));
ii. Addition of powers for judges (but not masters) to weigh evidence, make determinations of credibility and draw inferences even if the court determines that there is a genuine issue and to conduct a “mini-trial” if necessary. (Rule 20.04 (2.1) & (2.2));
iii. Enhanced powers to define the issues to be tried and to give direction concerning the manner of trial (Rule 20.05); and,
iv. Abolition of the presumption that an unsuccessful moving party should pay costs on a substantial indemnity scale and limiting such awards to specific circumstances (Rule 20.06).
[22] The amendments to Rule 20 were part of a package of amendments passed by the Rules Committee including a specific interpretive principle of proportionality. The impact of the amendments to Rule 20 in the context of proportionality and in light of the exigencies of modern civil litigation has now been examined by Supreme Court of Canada in Hryniak, supra. That is now the governing case concerning the application and interpretation of Rule 20 in particular and the appropriate use of summary judgment rules in general. It is required reading.
[23] At paragraph 5 of the decision the Supreme Court articulated the principle that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”. At paragraph 27 the Court enunciates the principle that “alternative models of adjudication are no less legitimate than the conventional trial” and at paragraph 28 that “the proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure”. In short if issues can be fairly decided without the full forensic mechanism of the traditional trial then they ought to be decided. If the outcome is evident, justice is not served by putting off the fateful day until the parties have both incurred the enormous expense of a trial.
[24] The Supreme Court is abundantly clear that under Rule 20, summary judgment should always be granted in appropriate cases and even if summary judgment is not granted the court should use the powers set out in the rule to fashion a summary trial process unless it is clearly not in the interests of justice to do so.[^7] In the case of a judge hearing the motion, the judge may conclude that there is a genuine issue of credibility but may then go on to utilize the enhanced fact finding powers set out in Rule 20.04 (2.1) and for that purpose may hear oral evidence and conduct a mini trial. Indeed, the Supreme Court says the judge should ordinarily exercise those powers unless it is in the interests of justice that those powers be exercised only at trial.[^8]
[25] As a master I exercise only a subset of the jurisdiction of a judge and accordingly under the rule as currently drafted, I do not have access to the enhanced fact finding role in Rule 20.04 (2.1) or the mini trial process in (2.2). For that reason the decision in Hryniak is extremely instructive because it endorses what the court calls the “roadmap approach” to summary judgment. As set out in paragraphs 66 – 68 and 74 – 77 that approach is as follows:
b. First the court should determine if there is a genuine issue requiring trial based on the evidence before the court and without using the new fact finding powers. If the court is satisfied under Rule 20.04 (2) (a) then summary judgment must be granted.[^9]
c. Secondly, if the court is of the view there is a genuine issue requiring a trial, then the judge should determine if the trial can be avoided by using the new powers under Rule 20.02 (2.1) and (2.2). Though the exercise of these powers is presumptive, this step remains discretionary. ^10
d. Finally, if the court determines there is a genuine issue requiring a trial and if the court cannot decide the issue by means of the enhanced fact finding powers or in the interests of justice declines to do so then the court should try to salvage the resources invested in the summary judgment motion by devising a summary trial procedure under Rule 20.05.[^11]
[26] This is a three step process in which the second and third steps remain discretionary. The mandate from the Supreme Court to approach each of these steps separately is particularly helpful when a master is hearing the motion because the first and last step are within the jurisdiction of the master whereas the second step is not. Most importantly resort to the enhanced fact finding powers is only necessary and appropriate if the court has first concluded that there is a genuine issue after determining if the evidence or lack of evidence justifies judgment without a trial in the absence of those powers.
[27] I say “lack of evidence” because it is important not to lose sight of Rule 20.02. That Rule specifically permits the court to assess the quality and sufficiency of the evidence. The court may under that rule draw a negative inference if a party seeks to rely on information and belief and does not put forward direct evidence of an important point. Under that rule as well the party responding to a motion for summary judgment must “put its best foot forwards” by “setting out in affidavit material or other evidence specific facts showing that there is a genuine issue requiring a trial”. It is not enough to speculate about potential evidence, the responding party must demonstrate the contested issue is a genuine issue by putting forward cogent and probative evidence.
[28] There are subtle distinctions here. The court may assess the sufficiency of the evidence, admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law. In Mehdi-Pour v. Minto Developments Inc. [^12] I foresaw the “roadmap approach” and I found that the first inquiry was for the court (either a master or a judge) to determine whether or not there was a genuine issue under Rule 20.04 (2).
[29] With respect to the treatment of evidence and assessing the quality of the evidence without access to the expanded powers I had the following to say (citations omitted):
17 The second change is the provision that a judge may "weigh evidence, draw inferences or make findings of credibility" and the new provision that to do so, the judge may hear oral evidence and conduct a mini trial. These new powers in rule 20.04(2.1) are clearly intended to allow judges to grant summary judgment in circumstances where they might not have been able to do so before the amendments.
18 They are not however designed to reduce the powers which the court had before the amendments. In particular, rule 20.04(2.1) does not overrule the provisions of rule 20.02.4 Under that subrule, the court whether it is a master or a judge may consider all of the evidence put forth on the motion and may draw a negative inference from the failure to put forth the best evidence. Rule 20.02(2) (formerly Rule 20.04(1)) requires the responding party to affirmatively set forth in an affidavit sufficient facts to demonstrate there is a genuine issue requiring a trial. This rule has been described as requiring the responding party to "lead trump or risk losing".5 If it is necessary to prove a particular point to succeed at trial and the party having the onus at trial cannot demonstrate there is evidence sufficient to win that point, then a trial is unnecessary.6 Faced with a summary judgment motion, the plaintiff must prove there is a genuine chance of success at trial by proving there is genuine evidence to support each element of the claim.
19 On any motion based on affidavit evidence, the court has to consider the admissibility and probative value of that evidence. This is particularly true on a motion for summary judgment. Rule 39.01(4) still applies so that evidence given on information and belief is admissible provided the affidavit clearly describes the source of the information and sets out the fact of the belief. But Rule 20.02 specifically allows an adverse inference to be drawn from the failure to put in the best evidence. In any event, Rule 39.01 does not have the effect of rendering hearsay information probative of the truth of that information. It simply provides an efficient way of placing documents or file contents or reasonably uncontroversial facts before the court.
20 The authorities dealing with Rule 20 identify various kinds of evidence that fail to meet the test required by Rule 20.02. The court need not accept evidence that is too feeble to carry any weight or probative value. A bald self serving affidavit, for example has been held to be insufficient by both the Court of Appeal and the Supreme Court of Canada.7 Evidence that is by its nature "too incredible to be believed by reasonable minds" or"conceding its truth, could have no legal probative force" may be rejected as insufficient evidence.8 Evidence that cannot have legal probative weight such as evidence of an oral agreement that would not survive the Statute of Frauds or would not be admissible under the parole evidence rule has been rejected.9 The failure to produce key evidence or documents in response to a motion for summary judgment has been held to give rise to a fatal inference.10 All of this analysis was permitted under the rule before the addition of Rule 20.04(2.1).
[30] In essence Rule 20 now encompasses three processes. Although called summary judgment, the first is really a motion for judgment based on the fact that the other party cannot succeed at trial. This may be so because the responding party lacks necessary evidence or because it is wrong in law.
[31] A plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its case or if the defendant has a complete defence. In Mehdi-Pour for example, the plaintiff could not prove that the allegedly defective water heater was venting carbon monoxide into the home, that the carbon monoxide built up to toxic levels or that carbon monoxide in the home was the cause of symptoms reported by the plaintiff to his physician. In the present case, if the action is statute barred that is a complete defence.
[32] The second process (which need not concern the court on this motion since it is not open to me in any event) is the discretion to decide the issue even though there is evidence to support the position of the responding party. Under the new amendments the judge may decide a genuine disputed question without a trial if it is appropriate to do so. Unlike the first process which requires judgment because there is no point in a trial, the second process concedes there is an issue for trial but invites the court to dispense with the trial and decide the question on the motion supplemented by oral evidence if necessary.
[33] As discussed above, the third process included in the rule is now to be interpreted as an invitation to exercise the powers under Rule 20.05 to devise a summary trial process proportionate to the matters in issue even if summary judgment cannot be granted.
[34] The second and third processes will not concern the court if judgment is given under the first and as outlined above, a master will not be concerned directly with the second process. I would point out in passing however (because of the direction from the Supreme Court to utilize the discretion provided by Rule 20.05) though the master cannot decide the contested issue himself under 20.04 (2.1) and (2.2) the master will often be in a position to order an expedited trial of the issue under Rule 20.05. The effect of this would be very much the same if Rule 20.04 (2.1) and (2.2) had been written to mirror Rule 20.04 (4). If the master hearing the matter concludes there is a genuine issue requiring a trial but a full blown traditional trial can appropriately be avoided by recourse to a summary process, the master could order trial of the issue under Rule 25.05 and place the issue on a trial list before a judge.
[35] I have taken the time to outline these other processes because much of the decision in Hryniak deals with them. But it is important for purposes of this motion to focus on Rule 20.02 (2) (a). The Supreme Court also mandates a robust and fearless application of that portion of the rule. It is not appropriate to simply defer the question to a trial judge if the evidence does not establish that the party having the onus to prove something has a reasonable prospect of doing so.
[36] In my view, for the reasons which follow, this motion for summary judgment may be determined under Rule 20.04 (2) (a) and there is therefore no reason to engage either of the other processes now contemplated by the rule. Indeed, in my view summary judgment would be appropriate in this case even if the Rule had not been amended. That is it could be granted on either the old test or the new test. The evidence before me demonstrates that there is no air of reality to the argument that the cause of action against these defendants was only discoverable two years before the action was commenced. To the contrary, the evidence supports a finding that with the exercise of reasonable diligence all the necessary components of the cause of action should have been apparent by the end of April, 2009 at the latest.
Analysis
[37] If the defendants can show that the limitation period expired before the plaintiff commenced this action against them the defendants have a complete defence and the action will be “statute barred”. The plaintiff clearly knew the identity of these defendants shortly after the accident occurred. To avoid the presumption that the limitation period began to run at that time, the plaintiff must prove that all of the necessary elements of a cause of action could only have been discovered at a later date; a date in this case that is later than January 10th, 2010.
[38] The relevant sections of the Limitations Act, 2002 read as follows:
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
[39] The plaintiff clearly knew on the date that she was injured or shortly thereafter the matters prescribed by s. 5 (1) (a) (i), (ii) and (iv). When she consulted counsel she knew she had been injured by slipping on snow or ice outside the Tim Horton’s and she knew she might have to sue. The only question with respect to these defendants is whether or not she can rely on s. 5 (1) (a) (iii). It will be her evidence that at the time she did not have actual knowledge that the operator of the Tim Horton’s could deny responsibility for the sidewalk outside the store. In my view however it is not whether she knew that McBride might escape liability that is important. It is whether she ought to have known that there were other parties that might share that liability or be liable instead.
[40] The question for purposes of this motion is whether she obtained the knowledge that there were other potential defendants at some point more than two years before the action was commenced or “ought to have known”. Even if she did not know the precise details of the relationship between the parties she may be caught by s. 5 (1) (b). Is there any basis for finding that she could not have known that parties other than McBride might be liable by the exercise of reasonable diligence?
[41] There can be no doubt on the evidence that the plaintiff and her counsel knew of the existence of three potential defendants in 2009. At the latest this was so by April 22nd, 2009. As noted, the fact that Ashcroft owned the plaza and Variety was the snow removal contractor and that each had separate insurance was disclosed to Mr. Meleras. He knew that all three insurers were actively interested in the matter and had corresponded with them. He had been reimbursed by each of them for medical disclosure.
[42] The only evidence put before the court on behalf of the plaintiff is the affidavit of Mr. Meleras. There is no affidavit of the plaintiff herself nor of any other witness on her behalf. Exhibit A to the Meleras affidavit is the transcript of the interview of the plaintiff conducted by Manon Trottier, on behalf of McBride’s insurer, in the presence of Mr. Meleras and the adjuster for Ashcroft on March 30, 2009[^13]. From this we know the plaintiff’s own observations at the time of the accident. Mr. Meleras was cross examined on his affidavit the transcript of that cross examination was also before the court.
[43] In the Meleras affidavit it is conceded that the plaintiff knew through her counsel about the existence of Ashcroft and Variety and that counsel was communicating with all three insurers prior to issuing the statement of claim in the McBride action. There is no specific explanation for failing to include Ashcroft and Variety as defendants. Paragraph 8 of the affidavit and the transcript of the plaintiff’s interview explains why the plaintiff believed McBride was the entity exercising control over the sidewalk outside the entrance to the store. This does not explain why the possibility of a cause of action against the other defendants once they had self identified to plaintiff’s counsel should not have been apparent.
[44] In paragraph 16 of his affidavit Mr. Meleras deposes that at no time prior to issuing the first claim had he ever been advised of the respective responsibilities of McBride, Ashcroft and Variety. That is true in specific terms but he did know of a landlord tenant relationship and a snow removal contractor.
[45] In paragraph 12 of his affidavit he points out that the statement of defence did not alert him to the fact that McBride was denying it was an occupier or alleging negligence against anyone else. As noted above, however, the covering letter did indicate the likelihood of third party claims and the lease was made available for inspection. In paragraph 18 of the affidavit he deposes that it was only at the discoveries in September of 2011 that he was told for the first time that McBride would be denying it was an occupier and that the other parties would take the position any action against them was statute barred.
[46] In cross examination Mr. Meleras agreed that he knew McBride was a tenant of Ashcroft but he never asked for a copy of the lease nor conducted a property search. It is also conceded that he did not request any information from Variety or Ashcroft as to the nature of their involvement before commencing the first action.
[47] There is nothing in this evidence which would support the contention that the plaintiff and her counsel could not be exercising reasonable diligence have determined there was a cause of action against Ashcroft and Variety as of April 22nd, 2009 at the latest. Indeed, there is nothing in the evidence which supports the contention made by counsel in argument that Mr. Meleras turned his mind to the matter and concluded it was unreasonable or unnecessary to sue these defendants.
[48] The implication that the statement of defence was in any way misleading does not withstand scrutiny. Firstly the pleading does deny the only paragraphs in the statement of claim which allege that McBride was responsible for the location of the accident.[^14] Secondly, as indicated, the covering letter advised there would be a third party claim and the third party claim itself was issued on March 7th, 2011. The lease was available for inspection as of that date and the third party claim asserts the liability of Ashcroft and Variety for snow removal. In my view if these defendants had been added at that time before the end of April, 2011 there would have been a genuine issue about the expiry of the limitation period because actual knowledge of the involvement of Variety was only provided to Mr. Meleras on April 22nd, 2009.
[49] On the other hand, if the defence and the third party claim were triggering events for discoverability then this action was commenced in time. The limitation period only starts to run when the claim is discovered. I do not have to determine if it was reasonable to wait until discovery in September of 2011 to come to the realization that other parties should have been sued. The critical question is whether the plaintiff had all the necessary information to know she had a cause of action before January 11th, 2010. In that analysis the statement of defence and the third party claim are not relevant.
[50] The evidence explains why the plaintiff thought she could sue the Tim Hortons franchisee (McBride) as she believed McBride exercised control over the sidewalk. As determined by Justice Smith, she may yet be proven correct about that. McBride may turn out to be liable to the plaintiff. That is not the question on this motion in this action. The question is whether or not the plaintiff ought to have known she had a cause of action against these other defendants in March of 2009 or in any event before January of 2010.
[51] In the context of the motion before him and without the benefit of argument by these defendants, Justice Smith found “there is a good probability that the limitation period will only commence when the plaintiffs discovered the details of the area McBride leased from Ashcroft.”[^15] That statement was in the context of allowing McBride to amend its defence to plead that it was not an occupier and the question before the court was whether the plaintiff was prejudiced and whether McBride was withdrawing an admission. Justice Smith was not ruling on whether the limitation period had in fact expired whereas that is the very issue before me today. The plaintiff relies on this however to show that there is a genuine issue which should be left to trial.
[52] My task is to consider the evidence before the court on this motion and to apply the test dictated by Rule 20 in light of the Hryniak decision. On the basis of the evidence now before the court it is almost impossible to reach any other conclusion than that urged by the defendants. The plaintiff ought to have known of the potential liability of these defendants in March or April of 2009. In fact Mr. Meleras’ evidence shows that he did know they were potential defendants. He simply elected not to sue them for reasons that are not articulated in the evidence. At best the evidence shows that it never occurred to the plaintiff that McBride could escape liability on the grounds that it did not exercise control over the sidewalk. The fact that the plaintiff may have misjudged the strength of her case against McBride is not by itself justification for finding that the limitation period did not begin to run against these other potential defendants.
[53] For purposes of the Limitations Act it must be presumed that a plaintiff either knows the law or could by the exercise of reasonable diligence determine what legal principles apply. In this case of course, the plaintiff had retained counsel who was negotiating with three insurers and then chose to issue a claim against only one defendant. There is no evidence put before my by which the court could conclude that the provisions of the Occupier’s Liability Act were inaccessible.
[54] In slip and fall accidents, particularly on a sidewalk, the question of who is responsible for keeping the sidewalk in good repair is always a critical question. The existence of a snow removal contractor is also of legal significance. That is because of the specific wording of the Occupier’s Liability Act which contains several specific provisions that modify the common law.
[55] Firstly section 1 of the Act defines “occupier” to include a person in physical possession of premises but also a person who has responsibility and control over the condition of premises or control over persons allowed to enter the premises. Secondly the same section makes it clear there may be more than one occupier. In any event section 8 of the Act renders a landlord who is responsible for maintenance or repair of premises liable as if the landlord were an “occupier”.[^16]
[56] Section 6 of the Act is tremendously significant. It contains a complete statutory defence for an occupier who has hired an apparently competent independent contractor providing it was reasonable for the occupier to entrust the work to the contractor and the occupier had taken reasonable steps to ensure that the contractor was competent and the work had been done. This defence protects all occupiers if there is more than one. If the statutory test is met the occupier or occupiers avoid liability and the only recourse for the injured party will be in tort for negligence against the independent contractor.
[57] As a consequence of these provisions it is abundantly clear that a plaintiff faced with knowledge of a landlord tenant relationship and an independent snow removal contractor, properly advised, should understand there are three potential defendants. Unless one of them admits liability the most cursory review of the legislation demonstrates that this is so. In these circumstances (though it does not of course determine the question of whether the limitation period had expired) the usual and prudent practice is to join the landlord and the snow removal contractor as defendants.
[58] In the circumstances of this case when all three parties had made themselves known to the plaintiff and had appointed separate independent adjusters, in the absence of specific evidence that actionable negligence on the part of these defendants could not have been discovered prior to January 11th, 2010 I am forced to the conclusion that the limitation period had indeed expired when this action was commenced on January 11th, 2012.
[59] In reaching this conclusion I need not exercise any of the powers reserved to judges under the new subsections of the Rule. In fact I need not draw even the negative inferences I am entitled to draw under Rule 20.02 (1). I am however entitled to assume that the plaintiff has put its best foot forwards and the evidence now before the court is the best she can do at trial. Not only does Rule 20.02 (2) require the plaintiff to prove there is a genuine issue requiring a trial, the Supreme Court has specifically cautioned that the purpose of summary judgment is undermined if a motion can be defeated by speculation about what evidence the responding party might be able to adduce if given a chance.[^17] The motion for summary judgment must be decided on the basis of the evidence actually before the court on the motion.
[60] Although the moving party bears the onus on the motion, it is the plaintiff who bears the onus under the Limitations Act to displace the presumption that the cause of action is discoverable on the date of the accident. And the plaintiff has to satisfy the requirement of Rule 20.02 (2) to put forth the evidence by which it will prove the case at trial. The evidence before me does not demonstrate a genuine issue on this point.
Disposition of the Motion
[61] For the reasons set out above, it is clear that the limitation period had expired against these defendants before this claim was issued. In my view it had done so by April 22nd, 2011 with respect to Variety and by March 30th, 2011 with respect to Ashcroft but I need not make a finding that is that precise. It is only necessary to be satisfied that all of the requirements of 5 (1) of the Limitations Act, 2002 should have been apparent before January 11th, 2010. On the basis of the evidence before me there can be no doubt of that and a trial is not necessary to decide the question.
[62] Having reached this conclusion Rule 20.04 (2) (a) entitles these defendants to a judgment dismissing the action. They are also entitled to costs.
Costs
[63] I received costs outlines from the plaintiff and from Ashcroft and a Bill of Costs from Variety. In the case of Ashcroft I was given a costs outline for the motion and another for the action including the motion whereas the Bill of Costs of Variety was for the action including the motion. It is of interest that the costs outlines of the plaintiff and of the defendant Ashcroft for the motion are virtually identical.
[64] Notwithstanding the success enjoyed by the moving parties, I do not think this is a case for substantial indemnity costs. There are however two defendants with separate interests, separate insurers and separate counsel so two sets of costs are appropriate. Counsel for Ashcroft took the lead role in arguing the motion but similar costs were incurred by Variety.
[65] Fixing of costs is not a science nor is it intended to be as specific an exercise as assessment. All of the relevant factors in Rule 57.01 may be considered but in this case the most significant are the principles of indemnity on the one hand and reasonable expectation on the other. I have already commented on the significance of the motion which obviously justified the parties in taking it seriously and expending the necessary time and effort in preparation.
[66] I fix the costs of the motion at $6,000.00 to Ashcroft and $5,000.00 to Variety on a partial indemnity scale. I fix the costs of the action exclusive of the motion at $9,000.00 to each of the defendants on the same scale. In the result the plaintiff is to pay costs of $15,000.00 to Ashcroft and $14,000.00 to Variety. These amounts are inclusive of disbursements and HST.
[67] I had advised counsel at the close of argument that I would dispose of costs on the basis of the costs outlines if possible. It is possible however that there were offers to settle. If there were any such offers that were not disclosed to me and which permit any party to argue for costs on a higher or lower scale then counsel may arrange to make submissions and I will reconsider the costs awards.
April 16, 2014
Master MacLeod
[^1]: 2014 SCC 7 – released January 23rd, 2014.
[^2]: Combined Air Mechanical Services v. Flesch 2011 ONCA 764; (2011) 108 O.R. (3d) 1 (C.A.)
[^3]: Though not in the entire country it appears – see Orr v. Fort McKay First Nation 2014 ABQB 111 (Alta. Q.B.)
[^4]: Court file no. 11-50451. Mr. Michael Switzer who is counsel for McBride Corp. in that proceeding and Ms. Laurie Tucker who is now counsel for the plaintiff in that proceeding were present in court to observe this motion.
[^5]: The relationship may be indirect as the original lease was with The TDL Group Ltd. McBride may be a sub tenant or assignee under the franchise agreement but the details are unimportant for purposes of the motion.
[^6]: Pammett v. McBride Corp. 2013 ONSC 2382 paras 26 - 29
[^7]: See paragraphs 66 & 76 - 77
[^8]: Paragraphs 67 - 68
[^9]: Paragraph 66
[^11]: Paragraphs 75 – 77. These powers are available to masters although of course the master will not be able to seize herself or himself of the trial as suggested by paragraph 78.
[^12]: 2010 ONSC 5414 (Master); aff’d 2011 ONSC 3571 (Div.Ct.); leave to appeal refused, Oct 20, 2011, Docket M40188 (C.A.)
[^13]: The transcript says March 20th but it should read March 30th – see Q. 20 , cross examination of Mr. Meleras
[^14]: Q. 123, cross examination
[^15]: Paragraph 34, Pammett v. McBride, supra
[^16]: R.S.O. 1990, c. O.2.
[^17]: Canada (Attorney General) v. Lameman 2008 SCC 14; [2008] 1 S.C.R. 72 at para. 19