Pollari v. Famous Players Limited Partnership, 2015 ONSC 5121

SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CV-13-3151-SR

Date: 2015 08 14

RE: Coleen Pollari - and - Famous Players Limited Partnership

BEFORE: Bloom, J.

COUNSEL: William G. Scott, for the Plaintiff and Moving Party

Kara L. Denny for Thyssenkrupp Elevator (Canada) Limited, the Responding Party

HEARD: August 5, 2015

E N D O R S E M E N T

I Overview

[1] On or about September 17, 2011 the Plaintiff was injured at the Scotiabank
Theatre in Toronto. She issued a Statement of Claim in respect of the incident
on July 23, 2013 against the alleged owner-operator of the theatre, after
amendment now described as Famous Players Limited Partnership.

2The Plaintiff brings the motion at bar to add Thyssenkrupp Elevator (Canada) Limited as a Defendant under Rule 26.01. The notice of motion was served more than two years after the incident in which the Plaintiff was injured. Therefore, I must determine if the Plaintiff has established the existence of a triable issue on the question of whether the notice of motion was served within two years after the day on which she, with the exercise of due diligence, would have known facts on which a negligence action against Thyssenkrupp could have been based.

II THE LAW

3The relevant provisions of the Limitations Act, 2002 are:

Basic limitation period

4. 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

5. (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).

Adding party

21. (1) 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. 2002, c. 24, Sched. B, s. 21 (1).

4In The Law of Civil Procedure in Ontario the learned authors state:

2.284 For an amendment, it is incumbent upon the plaintiff to lead some evidence of the steps he or she took to ascertain the identity of the responsible party and provide some explanation as to why the information was not obtainable with due diligence before the expiry of the limitation period. However, at the pleadings amendment stage, the plaintiff will not require much evidence to establish that there is a triable issue that a proposed defendant could not have been identified with due diligence within the limitation period. It will be rare that the applicability of the discoverability principle based on due diligence will be determined on a motion to add a party.

2.285 If, however, the plaintiff does not show that there is an issue to be decided about whether he or she was unaware of the claim despite due diligence, and it is clear that the claim was discovered or ought to have been discovered, then the amendment will be refused. In other words, if there is no issue requiring a trial, and it is established that the limitation period defence is available, the court will refuse the amendment.¹

5An examination of what constitutes due diligence in the context under discussion is a critical aspect of the analysis to be made. In Zapfe v. Barnes, 2003 52159 (ON C.A.) at para. 35 the Ontario Court of Appeal stated, “In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent.” Absent an explanation setting out unusual circumstances, as Justice Bielby observed in Slack v. Bednar, 2014 ONSC 3672 at paragraph 67, “Doing nothing cannot equate to due diligence.”

III Analysis

6The notice of motion to add Thyssenkrupp was served on December 31, 2014. The parties agreed in oral argument that the service of the notice of motion was equivalent to the commencement of an action for the purpose of interrupting the running of the limitation period. I must determine if the Plaintiff has established the existence of a triable issue on the question of whether the notice of motion was served within two years after the day on which she, with the exercise of due diligence, would have known facts on which a negligence action against Thyssenkrupp could have been based.

7In the case at bar the incident occurred on or about September 17, 2011 when an escalator maintained by Thyssenkrupp suddenly stopped, and the Plaintiff was injured. The incident report prepared at the theatre at that time stated that the Plaintiff “appeared to be a little bit disoriented.” It also reported that she was advised “that the cause of the [escalator] stop has not been determined but that the escalator maintenance- Thyseen [sic]-will be contacted and a thorough investigation will be undertaken.”

8According to the affidavit of Richard Zago, a lawyer with the law firm representing the Plaintiff in her action, in the intial stages of the claim she represented herself, and provided a written statement on September 22, 2011 to adjusters acting on the claim for a party or parties other than Thyssenkrupp. Moreover, on May 14, 2013 those adjusters wrote to the Plaintiff and advised her that they had “had a telephone conference with the independent adjusting firm, Morrision Services, which are acting on behalf of this ThysssenKrupp Elevator Canada Limited.” On May 22, 2013 the same adjusters wrote again to the Plaintiff negotiating with her in respect of her claim.

9The Plaintiff’s law firm was retained on July 8, 2013 and issued the original Statement of Claim on July 23, 2013. That claim alleged negligence on the part of contractors of a then Defendant by virtue of their failure “to ensure that the escalator was in proper working order.”

10While the Plaintiff was somewhat disoriented at the time of the incident when she was first told of the involvement of a maintenance firm called “Thyseen,” on the evidence she acted for herself subsequently and communicated with insurance adjusters. There is no evidence of any steps taken by her to investigate the potential liability of Thyssenkrupp before she retained counsel on July 8, 2013.

11On July 8, 2013 her counsel wrote to the insurance adjusters with whom she had been negotiating, and specifically informed them that his firm had been retained by the Plaintiff; and that they were going to issue a Statement of Claim in view of the impending expiry of a limitation period on “September 19, 2013.” The letter also advised the adjusters, “You should immediately retain defence counsel if you intend to third party ThyssenKrupp Elevator Canada Limited if it is your instruction to claim contribution and indemnity from that company.” Yet there is no evidence of any investigation by the Plaintiff’s counsel of potential liability of Thyssenkrupp before the second anniversary of the incident giving rise to the claim of the Plaintiff.

12I find that the Plaintiff has not discharged her onus to establish a triable issue on the question of whether the cause of action against Thyssenkrupp ought only to have been discovered within two years prior to the service of the notice of motion. There is an absence of evidence of due diligence on the part of both the Plaintiff and her counsel which could have extended the limitation period by the application of the discoverability doctrine.

13There is no evidence of steps taken by the Plaintiff to investigate the potential liability of those responsible for maintaining the escalator despite her communications with insurance adjusters acting on her claim. To the contrary, when they mentioned the potential liability of Thyssenkrupp in a letter to her, she still continued to ignore the issue. Her counsel followed the same approach despite clear knowledge of the involvement of Thyssenkrupp as evidenced in that counsel’s letter to the adjusters. Further, although the Statement of Claim referred explicitly to negligence of a contractor in ensuring the good repair of the escalator, still nothing had been done by Plaintiff’s counsel to investigate Thyssenkrupp’s liability.

14I, therefore, dismiss the motion at bar.

IV Costs

15If the parties cannot agree on costs, submissions may be made to me in writing. Thyssenkrupp’s submissions will be provided within the next 15 days, and the Plaintiff shall respond within 15 days thereafter. Each submission shall be no more than 3 pages not including any bills of costs.

Bloom, J.

Footnotes

1. 1Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario Second Edition (Markham: LexisNexis Canada Inc., 2014) at 143.