Court File and Parties
COURT FILE NO.: CV-14-514204
MOTION HEARD: 20150820
REASONS RELEASED: 20160224
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
DARLENE BOWEN
Plaintiff
and
RENGRO LTD.
Defendant
BEFORE: MASTER D. E. SHORT
COUNSEL: Michelle P. Collins Fax (416) 256-1707
-for the Plaintiff (Moving Party)
Sin Ying (Olivia) Cheng Fax: (416) 365-7988
for the proposed defendant A.V. Management
RELEASED: February 24, 2016
Reasons for Decision
Due Diligence Redux
[1] The plaintiff moves to amend her statement of claim to add a second defendant after the expiry of the two year general limitation period established by the Limitations Act, 2002.
[2] This case involves a slip and fall which occurred on the paved walkway leading to the plaintiff’s apartment building.
[3] In my view, the law firm acting for the plaintiff may well have failed to perform the requisite degree of due diligence appropriate in investigating a “slip and fall” accident which happened upon real property in an urban setting. In such a case I regard a key question to be investigated is the establishment of the owner (or owners) of the property upon which the accident happened.
[4] In this case, the plaintiff’s lawyers now express concern that they failed to determine the correct owner within the two years of the accident which occurred on October 23, 2012. It would seem that only now, after that expiry of that period, have they undertaken, at least to a degree, appropriate searches to ascertain the owners of all relevant properties.
[5] Is that sufficient to support the amendment requested at this time?
[6] The photographs reproduced below were exhibits to an affidavit filed on behalf of the proposed defendant. They show two relatively similar apartment buildings next to each other on Wilson Avenue in Toronto. There is a walkway running from the city sidewalk (the “Walkway”) in the area between the two buildings which leads to a T-junction with a sidewalk that runs to to entranceways of the two similar looking buildings.
[7] The plaintiff fell on that Walkway. Following her accident she spoke to the property manager of the building in which she lived (which is the building on the left). Apparently the property manager, said words to the effect of “that is what we have insurance for”.
[8] It would seem that the plaintiff’s counsel accepted that as an admission that the subject walkway was owned by the owner of the building in which the plaintiff resides and commenced the action against that owner only.
I. The Problem
[9] Communications with the existing defendant and their insurer eventually lead to a denial that the Walkway was on the present Defendant’s property.
[10] Ultimately it would seem became clear that the walkway was probably actually located on the adjacent property which belongs to the proposed defendant, A.V. Management Ltd. Unfortunately this determination was not made until after the two year period from the date of the accident had elapsed.
[11] In my decision in Wolkowicz v. Avignon Inc., [2011] O.J. No. 4804; 2011 ONSC 5899 I refused to allow an amendment, where it was clear that virtually nothing had been done to establish the proper defendant prior to the expiry of the two year period.
[12] In my view, it is not to any degree “the standard of perfection” to require counsel to make reasonable, meaningful, endeavors to ascertain the proper owner of the properties involved; but rather it is the reasonable standard of investigation that ought to be expected and provided, in cases such as this.
[13] Here a Google Maps search for the Plaintiff’s home address yielded a colour version of this image that was filed by the proposed defendant:
[14] This search did not require a site visit but shows the walkway on the right side of the hedge. The building to the right is the property of the proposed defendant. The defendant also submitted a zoomed in portion of the image which focused upon the hedge and walkway between 1750 and 1748 Wilson Avenue.
[15] While the coloured image is somewhat on the dark side due to shadows it does suggest that the hedge is intended as somewhat of a boundary:
[16] In my view it is not unreasonable to expect a plaintiff’s counsel to have examined these issues when determining appropriate defendants. I regard it as unwise to fail to make some investigation of the actual site in cases where ownership is likely to be a key element. However another approach might well be to conduct an examination of the available survey and other information preserved under the province’s Registry System
II. A Title Search?
[17] On the argument of the motion neither side provided copies of any title documents. However, there were abbreviated abstracts of title filed, but that is clearly inadequate for the purpose of trying to establish the ownership of specific portions of land.
[18] As a consequence, following the argument I requested counsel to obtain copies of conveyances of the two parcels reflected in the abstracts filed.
[19] I do note that an “Ownership Report” for the property of the proposed defendant A. V. Management Ltd. was obtained by plaintiff’s counsel in December 2014. The report simply reflects the following as the “legal description” of that owner’s land: “Part Block H Plan 3855”
[20] This is contrasted with a similar ownership report obtained dated December 13, 2012, which contained the same legal description being simply “Part Block H Plan 3855”. I expect the two structures were each located within the single “Block H” on the relevant plan of survey.
[21] What was not referred to on the either “Ownership Report” was the full property description reflected on the abbreviated parcel register that was obtained. The parcel register reflects a transfer of 1750 Wilson Ave to Rengro Ltd on April 4, 2004, pursuant to registration number, AT425112. Of particular importance is that the property description set out at the top of the parcel register for the property of the existing defendant which reads: “PT BLK H PL 3855 NorthYork, as in NY 654683, S/T & T/W NY 654683; Toronto (N York), City of Toronto.”
[22] The abbreviations which I have bolded, convey “Subject To” and “Together With”. A few letters with a lot of meaning.
[23] As a result of my observing that information I requested and was provided with a copy of the instrument NY 654683. The document turned out to be a quit claim deed from Fabian Gross and his wife to Michael Gross and his wife. It would seem that the document was intended to sever the two adjacent units into separate parcels. Key to the matter presently before me is the inclusion of a right-of-way which read in part:
SUBJECT TO AND TOGETHER WITH a free and uninterrupted right of way for the use of pedestrian traffic and for vehicles not over 6 feet in height, in, along, over, and upon that part of said block M described as follows in schedule “A” attached hereto.
[24] It is my belief that had a proper title search been conducted, it would have indicated that the existing defendant has entitlement to the use of and responsibility for the right-of-way. They may as well have a claim over against their neighbour, depending on the arrangements between the two corporations regarding responsibility for the maintenance of the Walkway.
[25] Clearly, the determination of those obligations may or may not ultimately become part of this action.That will have to await future developments.
[26] Subject to any judicial guidance from a higher court, I am not presently satisfied that, with respect to investigating the question of the ownership of the walkway, there was adequate and timely due diligence on the part of the plaintiff or her counsel to justify adding the adjoining owner as a defendant at this late stage.
III. Proposed Amendments
[27] The plaintiff seeks these specific amendments (together with other consequent amendments) to refer to two “defendants” rather than a single “defendant” throughout the pleading: The proposed amended version would thus read:
“THE PARTIES:
The Plaintiff, DARLENE BOWEN, resides in the City of Toronto, and at all material times herein, was a pedestrian, tenant and occupant on the Defendant's premises located at 1750 Wilson Avenue, in the City of Toronto, and specifically, the common walkway between the Defendant's premises, hereinafter referred to as the "Premises."
The Defendant, RENGRO LTD., is a corporation incorporated under the Jaws of the Province of Ontario carrying on business as a commercial landlord and all material times was the owner and occupier of the Premises. At all material times this Defendant itself or through its agents, servants or employees had the control, care, management and custody of design, construction, operation and maintenance of the Premises.
The Defendant, A.V. MANAGEMENT LTD., is a corporation incorporated under the laws of the Province of Ontario carrying on business as a commercial landlord and all material times was the owner and occupier of the premises located at 1748 Wilson Avenue in North York, Ontario. At all material times this Defendant itself or through its agents, servants or employees, had the control, care, management and custody of design, construction, operation and maintenance of the premises located at 1748 Wilson Avenue in North York, Ontario, and specifically, the common walkway between the Defendant's property.
[28] In light of these reasons, and a full review of the relevant title documents, the plaintiff may wish to amend some portions of her pleading. While I am not permitting the addition of the A.V. Management as a defendant I do not expect the original defendant will be in a position to resist amendments reflecting the registered title documents.
[29] Before coming to my final decision in this case, I gave consideration to the approach of the Court of Appeal to cases concerning the addition of defendants newly identified defendants after the expiration of a limitation period.
IV. Recent Case Law
[30] While this matter was under reserve, the Court of Appeal released its decision in Stechyshyn v. Domljanovic, 2015 ONCA 889, [2015] O.J. No. 6633; 2015 ONCA 889. In that case the plaintiff sued a known defendant and a “place holder” defendant styled “John Doe”.
[31] There in a judgment released December 14, 2015 K.M. Weiler, G.I. Pardu and M.L. Benotto JJ.A. held that on a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant. The panel held specifically that “a plaintiff need not establish due diligence in identifying the true defendant within the limitation period” In this regard the Court relied upon Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.), at paras 1 and 4; and Lloyd v. Clark, 2008 ONCA 343, 44 M.P.L.R. (4th) 159, at para. 4.
[32] In Stechyshyn, after the appellant’s successful misnomer motion substituting the name of the respondent for John Doe, the respondent successfully brought a motion for summary judgment on the grounds that he was not sued until after the expiry of the limitation period and that the appellant plaintiff did not exercise due diligence in identifying the true defendant. The appeal court reversed that decision and simply summarizes their conclusion:
“[3] We held that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted. Accordingly, we allowed the appeal and indicated reasons would follow. These are those reasons.”
[33] In that case the plaintiff was a pedestrian, struck on June 8, 2006 and encountered difficulty identifying the investigating police officer who he believed was “Officer Olson”and in obtaining the relevant police report. Before leaving the hospital, the appellant searched for the police officer but could not find him. On June 20, 2008, the appellant filed a Statement of Claim identifying the defendant as “John Doe” because he had no independent recollection of the driver.
[34] On March 30, 2011, the defendant’s insurer Guarantee Company of North America”) obtained an order for production of the Toronto Police Service (“TPS”) file concerning the accident. On July 22, 2011, the appellant received a copy of the police file, which indicated that Dusan Domljanovic was the driver. The investigating officer’s name was Officer Ollos.
[35] At this point the plaintiff then had ascertained the proper name of the defendant and on November 25, 2011, Master Muir made an Order granting the appellant leave to amend his Statement of Claim to substitute the respondent for “John Doe”. The respondent did not attend on the motion. Subsequently, the respondent brought a motion for an order dismissing the appellant’s claim against Domljanovic on the grounds that it was brought after the expiry of the two-year limitation period.
[36] Justice Weiler outlines the decision on that motion:
“[14] The motion judge granted the respondent’s motion on the basis that the appellant did not exercise due diligence and did not take all reasonable steps to identify the respondent within the two-year limitation period.
[15] The motion judge found that the information and the identity of the respondent were both available and discoverable to the appellant since the date of the accident: June 8, 2006. While the appellant had taken some steps to ascertain the respondent’s identity, it did not amount to the due diligence required of him. For example, one and a half years after being retained, the appellant’s counsel sent an “urgent” request to TPS for information regarding the accident and respondent driver. When none was forthcoming, it would have been open to the appellant to bring the same motion to compel production of the TPS file as the respondent’s insurer did. The motion judge rejected the appellant’s argument that the motion amounted to a re-litigation of his unopposed motion before Master Muir, since they were “fundamentally different issues”.
[16] Accordingly she granted summary judgment and dismissed the action.”
[37] The “Analysis” set out by the appellate court is instructive:
“[17] The respondent submits that this is not a true case of misnomer because the actual name of the respondent had been ascertained by the appellant on the day of the accident.
[18] This submission ought to have been made by the respondent before Master Muir on the misnomer motion. Generally, a litigant is prevented from raising a matter that should have been the subject of a previous proceeding between the same parties.
[19] If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff’s solicitor’s file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply. [my emphasis]
[38] The Court of Appeal held that the respondent’s motion for summary judgment “was an indirect attack on the motion for misnomer” and that, “It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the expiry of the limitation period:
“…The law does not countenance such impracticality. The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant.”
V. Disposition
[39] If the owner of 1748 Wilson was given the pleading as it stood at the expiration of the two-year period from the accident in the present case, I do not think it could be said that it would be obvious to that neighboring property owner that it was the defendant intended.
[40] Perhaps counsel will now be adding a John or Jane Doe to every list of defendants in their pleadings in an attempt to ensure against the result that I have arrived, at in this case.
[41] Regardless, there was only one defendant named in the Statement of Claim and instead the plaintiff simply seeks to add a new defendant.
[42] As indicated above, I do not regard this result as overly prejudicial to the plaintiff. I am satisfied that it is clearly arguable that the title document obliges the existing defendant to be responsible for the Walkway upon which plaintiff fell notwithstanding that it is not the owner in fee simple of that walkway. That being the case, the defendant may well have a right of a claim over, by way of a third party claim, but it would clearly be premature for me to make any binding determination in that regard at this stage.
[43] I recognize that the general rule is that amendments to a Statement of Claim are presumptively approved. In the absence of satisfactory evidence of due diligence to establish a lack of discoverability within in the statutory two year period, the Limitations Act precludes the commencement of an action which is, in all likelihood, to be ultimately a futile endeavour.
[44] In my view the direction of rule 1.04 that the Rules are to be liberally construed to secure the just, most expeditious and least expensive determination of this civil proceeding on its merits dictates that the plaintiff’s motion in this instance should fail.
VI. Costs
[45] Counsel for the proposed defendant sought partial indemnity costs of approximately $3000 on an all in basis. I regard this as an appropriate quantum and in the circumstances I feel the plaintiff should pay that sum to the proposed defendant.
[46] However, it may be that A. V. Management will ultimately be involved in a different capacity, in the overall resolution of this claim.
[47] I am therefore directing that the above sum be paid within 120 days of the release of these reasons, unless in the interim the Defendant takes steps to add the proposed defendant as a third party. In that event the sum of $3000 shall remain payable in any event of the cause, but need not be paid until the main action is resolved.
R.113/DS __________________
Master D.E. Short