SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: Elliot v. Gallean Capital Partners Inc., 2015 ONSC 443
COURT FILE NO.: CV-10-4789-00
DATE: 20150121
RE: TARA ELLIOT – and – GALLEAN CAPITAL PARTNERS INC. and PARKWAY PLACE HOLDINGS LTD.
BEFORE: F. Dawson J.
COUNSEL: Sareena Samra, for the Plaintiff
Pearl Rombis, for the Defendants
HEARD: January 15, 2015
E N D O R S E M E N T
[1] The plaintiff applies for leave to amend her statement of claim by adding two defendants. The motion is opposed on the basis that the limitation period has expired.
[2] Section 21(2) of the Limitations Act, 2002, S.O. 2002 C. 24 (the Act) provides as follows:
If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[3] The central question on this motion is whether the limitation period has expired in relation to the claim against the two proposed defendants. If it has, s. 21(1) of the Act requires that this motion be dismissed. This case does not fall within the transitional provisions found in s. 24 of the Act and there can be no consideration of special circumstances. This statutory provision takes precedence over Rules 5.04(2) and 26.01 which provide that amendments of pleadings, including to add a party, should be granted unless prejudice would result that cannot be compensated for by costs or an adjournment: Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401, at paras. 22-25.
[4] Has the limitation period expired against the two defendants sought to be added? The motion to amend the pleadings was served November 24, 2014. The basic limitation period of two years applies and the question becomes when that limitation period began to run in relation to the defendants proposed to be added. More specifically, if it commenced to run at any point prior to November 24, 2012, then the two year limitation period had expired prior to service of the motion to amend and the motion cannot succeed having regard to s. 21(1) of the Act.
[5] This is a slip and fall case. The plaintiff was injured on December 24, 2008 when she fell outside a large office building where she worked. The lawyer she initially retained commenced an action against the two existing defendants on December 23, 2010. That was one day before the expiry of a two year period from the date of the accident. The existing defendants are the building owner and the property manager.
[6] On November 6, 2009 an adjuster for Aviva Insurance wrote to the plaintiff’s former counsel. The reference at the top of the letter indicated that “Total Contracting Group”, one of the parties proposed to be added as a defendant, was Aviva’s insured. In the first paragraph of the letter the adjuster acknowledged receipt of the plaintiff’s notice of claim against one of the existing defendants and stated the claim had been referred to the adjuster “as the insurer of the above contractor for further investigation” (emphasis added). By coincidence the existing defendants are also insured by Aviva.
[7] Given that the plaintiff’s former counsel was pursuing a slip and fall claim that occurred at a large commercial property, and that the owners or managers of such properties often employ contractors to remove snow and ice, it is surprising this did not lead former counsel to make further inquiries and to amend the pleadings prior to the expiration of the two year period from the date of loss.
[8] There is an internal email and a worksheet in Aviva’s file which each suggest that plaintiff’s former counsel was aware that independent contractors were involved in the situation. The email is dated May 25, 2010, prior to expiry of the initial two year period, and the work sheet is dated January 4, 2011, which is shortly after the expiration of that period.
[9] When the motion was argued submissions were made about whether these circumstances demonstrated that the claim against the defendants proposed to be added was discoverable in or around November 6, 2009, when the adjuster wrote to plaintiff’s counsel. I point out that if that was the earlier of the first time the plaintiff knew of the potential claim against the defendants proposed to be added, or when a person in similar circumstances to the plaintiff would reasonably have known of the claim against them, the limitation period would have commenced then and expired in early November, 2011: Limitation Act, 2002, ss. 4 and 5. That is still well before the motion to amend was served on November 24, 2014. Consequently, that scenario is of no assistance to the plaintiff.
[10] On November 25, 2011 the file was transferred from the plaintiff’s former counsel to her current counsel. This was after the limitation period would have expired even if it did not commence until five days after the November 6, 2009 letter from the Aviva adjuster to the plaintiff’s former counsel, when service by mail would be deemed effective. Notice of change of representation was not filed until June 28, 2012.
[11] The plaintiff’s current counsel maintains that the adjuster’s letter of November 6, 2009 was not in the file transferred from former counsel. This raises the question of whether former counsel received the letter. No evidence from the plaintiff’s former counsel is before the court.
[12] I have considered whether, based on these circumstances, I should permit the amendment with leave to the added defendants to plead the limitation period. Evidence about this discoverability issue, more specifically, whether former counsel received the November 6, 2009 letter, could be determined on the full record at trial. However, I have come to the conclusion this is unnecessary given the following determinative factors.
[13] Examinations for discovery of the existing defendants were held on November 2, 2012. On October 31, 2012 counsel for those defendants faxed a letter to the plaintiff’s current counsel’s office advising that Terry Robertson, a representative of Total Contracting Group, would be produced for the existing defendant’s examination for discovery. The letter stated, “As you know, Total Contracting was the snow removal contracting company who serviced Defendant’s property on the date of loss.”
[14] On November 2, 2012 Terry Robertson was examined. He also swore an affidavit of documents indicating that he was the Chief Operating Officer of Total Contracting Group which he inaccurately said was a defendant. The snow removal contract between Total Contracting Group and the existing defendants was disclosed in the affidavit.
[15] On the basis of the evidence before me the most generous view that can be taken in favour of the plaintiff is that her claim against the defendants proposed to be added was not discovered or reasonably discoverable until November 2, 2012 at the examination for discovery. Even on that generous view of the circumstances, the two year limitation period would have expired on November 2, 2014, some 22 days before the motion to amend was served.
[16] In these circumstances it is clear that s. 21(2) of the Act prevents the amendment that is sought. The motion to amend the statement of claim to add additional defendants is dismissed.
[17] If the parties cannot agree on costs, a costs outline and brief written submissions should be exchanged and provided to me within 15 days.
F. Dawson J.
DATE: January 21, 2015
CITATION: Elliot v. Gallean Capital Partners Inc., 2015 ONSC 443
COURT FILE NO.: CV-10-4789-00
DATE: 20150121
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TARA ELLIOT – and – GALLEAN CAPITAL PARTNERS INC. and PARKWAY PLACE HOLDINGS LTD.
BEFORE: F. Dawson J.
COUNSEL: Sareena Samra, for the Plaintiff
Pearl Rombis, for the Defendants
ENDORSEMENT
F. Dawson J.
DATE: January 21, 2015