SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 14-CV-509760
MOTION HEARD: 20150601
REASONS RELEASED: 20150609
BETWEEN:
Nancy Klein
Plaintiff
- and-
Cindy Stiller, Metropolitan Toronto Condominium Corporation No. 1397, Del Property Management Inc.
and Greg Niemkiewicz, carrying on business
as Dominus Facility Management
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Patricia Hill Fax: (416) 364-7027
- for the Plaintiff (moving party)
Varoujan Arman Fax: (416) 593-2960
- for the proposed Defendant
RELEASED: June 9, 2015
Endorsement on motion to amend Claim
Due Diligence Revisited
I. Overview
[1] The Plaintiff seeks to add a defendant after the expiration of the presumed two year limitation period.
[2] In August 2012, the plaintiff was involved in a slip and fall accident which occurred in the parking area of premises located at 123 Eglinton Avenue East, in Toronto. Her pleading asserts she slipped and fell on oil, which was present on the floor at or near the Level B parking area of the premises.
[3] Apparently a bottle of olive oil was broken when being transported within the building by one of the defendants. The defendant condominium corporation was the owner and occupier of the common elements where the accident occurred. Del Property Management (“DPM”) was the property manager. The defendant Dominus Facility Management was acleaning company which had contracted with DPM.
[4] The day the accident occurred the plaintiff spoke with the concierge on duty at the building. That individual was an employee of the proposed added defendant G4S Secure Solutions (Canada) Ltd. (“G4S”).
[5] An occurrence report was completed by the concierge on the day of the accident. The report reads in part:
At about 18:22 on August 18, 2012, [the plaintiff] came by the security desk and notified writer that she slipped and fell on Level B lobby east of elevator #3 in front of the door going to the parking area. She mentioned that she hurt her knee and hip. While she was talking with the writer, writer could make out her facial expression that she was in a lot of pain.
[6] The report concludes with a notation, following a report on the steps taken following the initial contact, to note:
“At about 18:45, writer phoned PM and briefed her on situation, she told writer to place the winter mats on the affected area to prevent more people from falling and save the camera footage for her. Writer did as requested.”
[7] The accident happened August 18th, 2012. It appears that by January of 2014 the plaintiff retained her present counsel for the purpose of seeking damages for the injuries she suffered.
[8] The issue before me is whether or not there was sufficient due diligence applied in determining whether or not to add the security firm prior to the expiry of the normal two year period.
[9] In order to consider that issue it is necessary to examine some of the exhibits put before me. Initially, a “Without Prejudice” notice of claim was mailed to an insurance adjuster on January 3, 2014. That document did not appear to indicate who was the insured and oddly indicated that the plaintiff “sustained serious injuries to and about,her body as a result of your insurer’s [sic] negligence.”
[10] The letter concluded with a paragraph that included the following:
“If there are any other persons or entities that were involved in the maintenance, operation, or monitoring of the premises, kindly advise us immediately. We would like to ensure that all parties who may have any responsibility are put on notice immediately.” [my emphasis]
[11] Two months later, on March 3, 2014, a second letter was sent from the firm which, other than a notation “SECOND NOTICE”, was a mirror image of the first letter.
[12] On each of those dates, Parallel letters were sent to the management office of the condominium corporation as well.
[13] In response to the correspondence an email was sent to plaintiff’s counsel by an insurance adjuster for one of the defendants, on March 13, 2014. That letter (with my emphasis added) read in part:
“Hi Patricia further to our telephone conversation my understanding is the incident occurred Sat Aug 18 2012 18:22 B level Lobby east of elevator #3
Cindy Stiller had borrowed the flatbed and returned it to the security guard who after it was returned noticed oil on it.
The security camera shows Ms. Stiller loading contents and having trouble getting through doors
Items fell off the cart Ms. Stiller is seen picking up things
After your client fell she reported the incident it to security who recalled Ms Stiller had borrowed the flatbed which was returned with oil on it
He contacted Ms. Stiller at 18:34 and asked if she has spilt oil she acknowledge she did. The security.guard indicated to Ms. Stiller she should have notified security immediately of this incident.
Regarding the cleaning company my client had a contract with Dominus Facility Management they attend 5 days a week and ½ days Saturday and Sunday.
That is the only information I have regarding the cleaning company.”
[14] Thus counsel was made aware of the involvement of the security company five months before the second anniversary of the event.
[15] Eventually, on July 24, 2014, the plaintiff’s law firm sent similar letters advising of the claim to Del Property Management, Inc. and Dominus Facility Management and its insurer. Those letters again containing the following concluding paragraph, with my emphasis added:
“If there are any other persons or entities that were involved in the maintenance, operation, or monitoring of the premises, kindly advise us immediately. We would like to ensure that all parties who may have any responsibility are put on notice immediately.”
[16] Counsel for the plaintiff submits that counsel therefore sent at least 7 letters to various entities seeking this information and got no response identifying any entity responsible for “monitoring” the subject premises. It further was argued that perhaps the security company, by virtue of some side agreement with the condominium corporation, perhaps was responsible for some elements of property maintenance. No evidence of the specifics of any such responsibility was put before me.
[17] It would seem that the plaintiff continued to reside in the building and the concierge’s uniform has a legible badge reading “G4S Security”.
II. Timing of Pleadings
[18] The Statement of Claim was issued on August 6th , a few days days before the second anniversary of the accident. By September 22, 2014 counsel for the condominium corporation and its property manager had served a Statement of Defence and Crossclaim and Jury Notice. The letter to plaintiff’s counsel sent with those pleadings read in part:
“Our investigation has revealed that G4S Security is the security company on-site at this building that the plaintiff spoke with following this loss. Do you intend to add them to the claim?”
[19] By letter dated October 1, 2014 counsel for the insurer of Dominus forwarded a copy of the Occurrence Report, referred to above at paragraph [5], to plaintiff’s counsel, noting that the fall occurred at approximately 6:17 PM based on that report.
[20] They went on to point out that the maintenance contract with their client required it “to be on-site at the premises to provide cleaning services for four hours on Saturdays beginning at 9:00 a.m.” They suggested that , given this information, they could not see any liability against their client.
III. Notice of Claim
[21] On January 13, 2015, a letter was sent to G4S providing that “Notice is hereby given of a slip and fall accident which occurred on August 18, 2012 at 123 Eglinton Avenue… wherein our client… sustained serious injuries to and about her body as a result of the negligence of G4S security solutions (Canada) LTD., its servants and/or employees.”
[22] G4S wrote back indicating “you are already time barred from asserting any claim”.
[23] The response from counsel for the plaintiff read in part:
“ We are relying on the principle of Discoverability given that the defendants in the current action have raised G4S as an appropriate Defendant. We are in the process of scheduling the motion to add G4S to the current action.”
[24] Is this an adequate justification for adding a party following the expiration of the basic limitation period?
[25] Section 5 of the Limitations Act,2002 reads 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.
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
Presumption
(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).
(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.
[26] The proposed Defendant G4S argues that the proposed additional claim is clearly statute-barred and ought not to be permitted.
[27] The Affidavit in support of the motion to amend was provided by a lawyer in the plaintiff’s firm. The grounds for the amendment asserted (with my emphasis added) included :
- I am advised by Ms. Hill and verily believe to be true, that on or about February 2, 2015, Ms. Hill spoke with Ms. D' Alessandro by telephone and confirmed that due to the reference to the proposed Defendant. G4S in the Statement of Defence of the Defendants MTCC No. 1397 and Del Property Management Inc . served on September 22, 2014. as well as in the Occurrence Report dated August 18, 2012 . and received October 1. 2014, it became necessary for the Plaintiff to include the proposed Defendant, G4S, as a party to this action.
[28] The affidavit also includes these paragraphs:
- The proposed Defendant, G4S, would receive a windfall in escaping its obligation while depriving the Plaintiff of compensation.
Proper and Necessary Party
- I verily believe that the proposed Defendant, G4S Secure Solutions (Canada) Ltd., is a necessary and proper party to be added to this action. Attached at TAB "7" of the Motion Record is the draft Amended Statement of Claim.
[29] The text of the proposed amendment reads:
6a. The Defendant, G4S Secure Solutions (Canada) Ltd., (hereinafter "G4S"), is a corporation duly incorporated pursuant to the laws of the Province of Ontario, and was at all material times a security firm responsible for the Premises, and as such was responsible for the care, control and maintenance of the Premises, under terms and conditions that are unknown to the Plaintiff at this time.
[30] It was submitted to me that granting the amendment of the Statement of Claim “allows the most expeditious, least expensive and just determination of the merits of this proceeding.”
[31] It was also noted that the time for any of the Defendants to bring a Third Party Claim as against the proposed defendant, G4S, has not expired.
[32] I am not satisfied that this latter point is a valid justification for allowing this amendment. However as third party claims have now in fact been issued against G4S is there any real reason to not add them as a defendant to the main action as well?
[33] The answer to that question brings me the other statute which has an impact on this case.
IV. Occupiers’ Liability Act, R.S.O. c. O.2
[34] The Occupiers’ Liability Act defines an Occupier as including:
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; (“occupant”)
[35] Section 3 of that act sets out an Occupier’s duty:
- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Idem
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
[36] Section 6 of the act potentially has an important impact on this case and potentially upon the outcome of this motion. It deals with the question of liability where an independent contractor is involved:
- (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
Idem
(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.
Idem
(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor. [my emphasis]
[37] I interpret that provision to potentially mean in this case that the condominium corporation and the property manager may be able to escape liability having contracted with the cleaning company and the security company.
[38] If either or both of those entities are found to be exempt from liability, there will be no claim outstanding for which it will need to seek indemnity by way of the third party proceeding
V. Due Diligence and Third Party Claims
[39] In 2010, Justice Lauwers, as he then was, dealt with similar issues in Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, 101 O.R. (3d) 553; 2010 ONSC 2235. In that case the plaintiff alleged that she was injured when she slipped and fell in the washroom of a building owned by the defendant in July 2007. She put the defendant on notice of a claim a month later in August 2007, and in March 2008 was advised by the adjuster appointed by the defendant's insurer that the claim was denied. She commenced an action against the defendant within the two-year limitation period. In November 2009, counsel for the defendant advised the plaintiff for the first time that the employee who was responsible for maintaining the washroom on the day of the fall had called in sick and that a replacement employee had been dispatched by another company, Unicco The plaintiff brought a motion for leave to amend the statement of claim to add Unicco as a party defendant even though the limitation period had expired. Unicco opposed on the basis that a plaintiff seeking to rely on the discoverability must demonstrate due diligence in determining the identity of the tortfeasor and that the plaintiff failed to do so.
[40] Justice Lauwers allowed the motion to amend in that case. The headnote summary indicates:
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. If the defendant's insurance adjuster had advised the plaintiff that liability was being denied because another party was liable, then the plaintiff's duty to make further inquiries would have been triggered. However, a naked denial of liability should not trigger a duty on the plaintiff to make further inquiries.
[41] In his reasons His Honour considered the role of the occupiers’’ liability legislation:
[11] Ivanhoe intends to join Unicco as a third party and can do so under s. 18 of the Limitations Act, 2002 up to two years after the day that Ivanhoe was served with the Statement of Claim. It is possible that a third party could be added up to four years after the event giving rise to the cause of action, quite apart from issues of discoverability. So Unicco will be a party to the lawsuit in any event.
[12] But this does not render the motion academic; under s. 6 of the Occupiers' Liability Act, R.S.O. 1990, c. O.2, an occupier like Ivanhoe can potentially escape liability for the negligence of an independent contractor like Unicco, leaving the plaintiff without a remedy. If Ivanhoe is protected by s. 6 of the Occupiers' Liability Act, then it has no liability to the plaintiff and there is no claim over by it against its own third party, Unicco. Hence Unicco's interest in opposing the motion.
[42] Justice Lauwers then addressed the balancing of competing “policy thrusts”:
“[13] The dominant policy thrust of the 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 s. 5 of the Limitations Act, 2002, which codifies discoverability. As the Supreme Court of Canada noted in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, at para. 36:
Since this Court's decisions in Kamloops (City of) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, and Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, at p. 224, discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it. See Sparham-Souter v. Town & Country Developments (Essex) Ltd., [1976] 1 Q.B. 858 (C.A.), at p. 868 per Lord Denning, M.R., citing Cartledge v. E. Jopling & Sons Ltd., supra:
It appears to me to be unreasonable and unjustifiable in principle that a cause of action should he held to accrue before it is possible to discover any injury and, therefore, before it is possible to raise any action.
These policy thrusts are to be reasonably balanced.”
[43] My concern in the balancing exercise in this case is that the action or inaction of the plaintiff in the face of the information available to counsel well within the limitation period may not be what I regard as “due diligence”.
[44] Justice Lauwers notes the relatively low bar to be crossed to justify allowing the proposed addition of a party:
[14] It is not unusual for possible defendants to emerge as a result of information received during the opposite party's document production or during the discovery process in an action. In the context of motor vehicle accidents, examinations for discovery are often delayed to permit injuries to ripen and perhaps resolve so later discovery of additional possible defendants is not so unusual: see, for example, Wong v. Sherman, [1998] O.J. No. 1534, 60 O.T.C. 174 (Gen. Div.); Burtch v. Barnes (Estate) (2006), 2006 12955 (ON CA), 80 O.R. (3d) 365, [2006] O.J. No. 1621, 20 M.P.L.R. (4th) 160 (C.A.). See, also, the medical malpractice cases cited in Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596, [2010] O.J. No. 368, 2010 ONSC 318 and in Konwisarz v. William Osler Health Centre, [2010] O.J. No. 1442, 2010 ONSC 2118, where the need for an expert medical opinion often precedes discoverability.
[15] 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. [my emphasis]
[45] However justice Lauwers does recognize that a trigger can give rise to a need to exercise diligence in particular fact situations:
[16] The effect of a trigger on the duty to inquire is acknowledged in the cases. In Wong v. Adler, supra, Master Dash declined to allow the addition of the third parties as defendants to the action more than two years after the date of the motor vehicle accident and more than two years from the date that the plaintiff obtained the information from the named defendant's insurer, which should have worked as a trigger. In Zapfe v. Barnes, supra, the proposed defendants argued that the third party claims by the already-named defendant should have triggered due diligence activities on the plaintiff's part; the Court of Appeal allowed the addition of the third parties as defendants but left the determination of the proper application of the limitation period to the trial.
VI. Was a need for Due Diligence triggered?
[46] The Third-Party claim that has now been issued against G4S, reads in part:
“8. These Defendants state the said contract specifically provided for advising the superintendent or management of any dangerous or hazardous situations and to ensure that same was remedied.
These Defendants state that the said contract specifically provided for reviewing the video monitors regularly to check for activity within the complex. Any unusual activities, hazards or suspicious person must be brought to the attention of the Manager.
These Defendants state that in the event that they are found liable to the Plaintiff, such liability was caused or contributed to by the negligence of the Third Party, the particulars of which are as follows:
a) it failed to monitor the Premises for any dangerous or hazardous situations;
b) it failed to monitor the video monitors at the Premises;
c) it failed to investigate the cause of the spilled olive oil on the cart when it was returned;
d) it failed to advise these Defendants of any slippery or suspect conditions at the Premises, which, if advised, would have been remedied immediately;
e) it failed to make periodic checks of the Premises to ensure they were reasonably safe;
f) it failed to provide its services pursuant to its contract with these Defendants;
g) it failed to investigate a spill, when it knew, or ought to have known, that a spill would have been present;
h) it failed to take all reasonable care in the circumstances: and
i) such further and other particulars as may become apparent and counsel may advise.”
- These Defendants further plead and rely upon the contract and agreement, verbal or written, as between these Defendants and the Third Party.
[47] While these elements are now clearly stated in the now delivered pleading and would enhance an argument to permit the allowance of an added defendant. I am not satisfied on the evidence before me that such a justification could not been obtained with reasonable diligence by the plaintiff within the two year period following the accident
[48] In my decision in Wolkowicz v. Avignon Inc., 2011 ONSC 5899 I held that the plaintiff had not exercised “due diligence” in seeking to identify the name of the appropriate security company within two years of the arising of the cause of action.
[49] At the outset of those reasons I set out these two definitions:
Diligence
“careful and persistent work or effort"
- Concise Oxford English Dictionary, 11th edition
Due Diligence
"The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or discharge an obligation."
- Black's Law Dictionary, 9th edition
[50] Ultimately I held that there was inadequate evidence to the contrary to rebut the presumption that the plaintiff knew the necessary information concerning the identity of the security company prior to expiration of the limitation period. There was no evidence of refusal to respond to a written request to confirm the security company's identity. Given the extent of the claim, it would have been reasonable to expect early confirmation of the parties involved. There, as here, it was not a case of misnomer, as there was no notice of the claim provided to the intended defendant until the limitation period had elapsed. The plaintiff failed to show that its efforts to ascertain the correct defendant's identity constituted reasonable diligence.
VII. Disposition
[51] Here in my view the identity of the security company could be ascertained by a simple inquiry, but that was not done: Wakelin v. Gourley (2005), 2005 23123 (ON SC), 76 O.R. (3d) 272, [2005] O.J. No. 2746 (S.C.J.) (per Master Dash), at para. 26. In that case, a desultory effort to obtain police reports was found to be insufficient to show due diligence.
[52] I contrast this case with cases such as Barnes v. Sunlife Financial Services of Canada (2007), 2007 57086 (ON SC), 88 O.R. (3d) 780, [2007] O.J. No. 5056 (S.C.J.), where Gordon J. found that a request by the plaintiff to examine the malfunctioning elevator, to get disclosure of the maintenance file and to get disclosure of the name of the company that maintains the elevators was sufficient to demonstrate due diligence. The request for information was rebuffed. Following Master Dash in Wakelin v. Gourley, supra, Gordon J. found, at para. 40, that "the evidentiary burden at the pleadings amendment stage is not a high one". But it still must be meaningful and demonstrate a degree of diligence.
[53] Here the plaintiff met with the security guard the day she fell. Her counsel received notification of the involvement of the security company in March and did nothing to follow up or to assert that her injury ,loss or damage was caused or contributed to by an act or omission” of the security company. She had an opportunity to identify the concierge’s employer every time she entered the front lobby of her residence.
[54] In all the circumstances I am not convinced that due diligence has been demonstrated to the degree necessary to support permitting an addition of a new defendant at this point in time.
[55] I am therefore refusing the Plaintiff’s motion to add G4S Secure Solutions (Canada) Ltd. as a defendant to this action
VIII. Costs:
[56] In the result, any subject to any offers made with respect to this motion, I see no reason not to award costs to G4S on a partial indemnity basis, which in the circumstances I am fixing at an amount roughly equal to the sum that the plaintiff was seeking had she been successful, being $3150, payable within 60 days.
E.106/DS __________________
Master D.E. Short