CITATION: Onwumere v. Steenwyk et al., 2016 ONSC 2504
COURT FILE NO.: 13-CV-484077
Heard: March 24, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Onwumere v. Steenwyk et al
BEFORE: Master Joan Haberman
COUNSEL: Rosenberg, D. for the moving party Cosentine, R. for responding party
ENDORSEMENT
Master Haberman:
[1] On March 24, 2016, I heard this motion to add four defendants to this action and granted the relief sought. I indicated that my reasons would follow.
CHRONOLOGY
[2] On March 14, 2013, the plaintiff was walking along the municipal sidewalk in front of a private home located at 3 Hardisty Drive in Toronto, when she slipped and fell on ice, sustaining injuries.
[3] As the fall took place on a sidewalk, property owned by the City, the City was an obvious defendant. However, as statute provides that a homeowner is responsible for clearing snow and ice from the portion of the sidewalk that runs along the frontage of their property, it was appropriate for the plaintiff to also name Steenwyk, the homeowner at number 3, as a defendant.
[4] Accordingly, plaintiff’s counsel wrote to Steenwyk and to the City on April 4, 2013, putting them both on notice that a claim would be advanced against them.
[5] Presumably, a search was conducted to obtain Steenwyk’s name and then confirm that she was the owner of number 3. On the evidence before the court, there was no obvious indication or any reason to believe at the time the claim was issued that anyone other than these two defendants might be answerable for this loss in whole or in part. There was no confusion about where the accident occurred and the house was owner-occupied. This appears to have been a straightforward slip and fall situation, clearer than many.
[6] The only other obvious potential defendant that might have come to mind in this scenario is a snow clearing service. It appears, however, that none was involved here. In any case, on receipt of the notice letter, neither Steenwyk nor her insurer came forward to identify a service provider nor anyone else they believed should be included in the action. In fact, there was no response from Steenwyk or from her insurer at all.
[7] The City’s adjusters, Jason Ponton of Granite Claims Solutions, did respond, advising they would be adjusting the loss on behalf of the City and that they were in the course of investigating the matter. However, nothing further was heard from him regarding others he believed could possibly be held accountable for this loss.
[8] The statement of claim was issued on July 4, 2013. In paragraph 5 thereof, the plaintiff states that she sustained injuries after having slipped and fallen on ice in front of 3 Hardisty Drive. In paragraph 6(e), she alleged that the defendant City permitted or failed to prevent the discharge of water onto the sidewalk from drainage pipes at 3 Hardisty Drive. In paragraph 7(A), the plaintiff asserts that the defendant, Steenwyk, failed to ensure that water gathered by and discharged from her drainage pipes onto the sidewalk did not freeze and cause injury to passerby.
[9] These allegations are quite specific. The plaintiff clearly states that water was discharged from pipes located at 3 Hardisty Drive onto the sidewalk, were it accumulated and turned into ice. It ought to have been clear to anyone reading this claim what it was about and why these particular defendants were implicated. If Steenwyk or her insurer believed there was more to the story that could help her cause, such as a problem with the pipes at number 5, it would have been in their interest to make the plaintiff aware of that as soon as possible.
[10] Presumably, neither defendant nor their insurers, each of whom had a stake in the outcome of the litigation, formed the view at that time that the water might have come from elsewhere. Though they would have been in the best position to have information regarding the source of the water that was discharged, neither defendant/insurer came forward with an alternate theory until far later.
[11] In their statement of defence, served on January 7, 2014, the City simply denied paragraph 6 in its entirely and claimed no knowledge regarding paragraph 7. Steenwyk denied paragraph 7 and claimed no knowledge of paragraph 6 in her pleading, served on March 24, 2014. The two defendants cross-claimed against one another.
[12] Despite stating that she had no knowledge about these issues on March 24, three days later, on March 27, 2014 Steenwyk issued a third party claim, naming all of the proposed defendants in the main action as defendants to her third party action. The claim was served on plaintiff’s counsel on April 2, 2014. This was the plaintiff’s first knowledge of their involvement.
[13] The proposed defendants are Steenwyk’s neighbours, who own number 5 Hardisty, Daniel James Hartmann and Melissa Micelli; Portico Design Limited, a firm they retained to perform drainage work for them at number 5; and Carl Godfry, the owner of Portico. The allegations against them in the third party claim are general and vague in the extreme. As against the owners of number 5 it is essentially alleged that they failed to prevent the discharge of water from their property onto the sidewalk and as against Portico and Godfy, the claim is based on their negligent design and implementation of a drainage system for their property.
[14] Plaintiff’s counsel took appropriate and timely steps to explore the basis of the third party claim. On April 21, 2014, they wrote to Steenwyk’s counsel, indicating that as they believed the water discharge had emanated from number 3, they wanted to understand the basis for the position that number 5 was also involved. Particulars were therefore sought. Again, it would have been in the interests of Steenwyk’s insurer to respond to that query through counsel, particularly if they were of the view that this somehow absolved Steenwyk of liability or diminished her exposure.
[15] This, in my view, was prudent course for plaintiff’s counsel to have followed in view of the nature of the allegations in the third party claim. There are cost ramifications for adding defendants to an action without having any basis for doing so this is something the court does not want to encourage. Here, the only basis the plaintiff had for joining the third parties as defendants was a third party claim, which provided no details at all regarding number 5. It was therefore appropriate for the plaintiff to satisfy herself that there was actually some basis for this amendment before taking the next step.
[16] Unfortunately, no response was ever received from counsel for Steenwyk, such that both the initial notice letter to Steenwyk and this letter to her counsel went unanswered.
[17] The contractor defended the third party action on September 16, 2014 followed by the owners at number 5 on April 14, 2015. By that time, the presumptive two-year limitation period had already expired. Both defences amount to little more than general denials. They provide no further insight into the nature of the work undertaken and performed by Portico, when it was done or what might have gone amiss. Precisely how number 5 is involved in these events is still not apparent.
[18] The plaintiff’s draft amended statement of claim was circulated to all parties and proposed parties on September 22, 2015. Both sets of proposed parties asked to see the motion record before responding and the contractor ultimately agreed not to oppose the relief sought.
[19] It was therefore only the homeowners at number 5 that opposed the motion. Their position is that:
• The plaintiff was aware of these potential defendants within the presumptive limitation period but failed to add them at that time;
• The plaintiff should have been able to tell from the drainage pipe photos in her affidavit of documents, served within the presumptive limitation period, that water was being discharged from number 5; and
• The plaintiff failed to take any steps to learn about the potential involvement of the proposed or any other defendants.
[20] The photographs were the subject of discussion when the deponent who swore the affidavit in support of the motion was cross-examined. They show three drainage pipes in the vicinity of number 3 Hardisty Drive. It is not clear from the photos if all three are located on that property or if any come from elsewhere, though it appears that one of them could have been located on an adjacent property. It is also not clear that all three pipes are connected, such that each actually discharges water onto the sidewalk in a manner that it could end up in front of number 3.
[21] It seems plaintiff’s counsel did conduct a google search in preparation for this motion and it revealed that one of the pipes is located on number 5, but it could not have shown whether or not the pipe was still in operation. Having reviewed these photographs before hearing the motion and again afterwards, I am of the view that they are really not helpful as it is not clear where one the property line each.
[22] When he was cross-examined on his affidavit supporting this motion, Mr. Little was asked several times if anyone from his firm went out to speak to the defendant at number 3 personally about the events. He responded that to do so would have been improper.
[23] I agree. Further, in view of the fact that the notice letter was sent about three weeks after the accident, I suspect any effort to speak to Steenwyk, who was already alerted to the fact that she was going to be sued, would not have been productive. Counsel followed the proper course, in my view, by writing to Steenwyk and putting her on notice of the claim. Presumably, she shared the letter with her insurer who appointed counsel. At some point, she would have been asked for a statement and had she identified number 5 as a possible alternate source for the water discharge, I expect the insurer would have passed that along to plaintiff’s counsel in order to deflect liability from their insured. It is not clear, however, that this occurred, or when or why Steenwyk’s insurer decided to bring number 5 into the action. There is a very small window of a matter of days between her defence and the third party claim that has not been explained.
[24] In my view, all of these assertions about what the plaintiff ought to have done early on amount to red herrings, as it appears Steenwyk’s insurer/counsel hadn’t even formed the intent to add number 5 to the action until after they delivered their statement of defence.
[25] When the deponent was asked if the firm had interviewed any of the surrounding homeowners, her response was that there was no reason to do so. I view the suggestion that they ought to have done so as going beyond what would be considered reasonable. Absent any indication from Steenwyk or her insurer that there was possibly another culprit responsible for this event, I don’t see why this path is one that should have been pursued. This was not a case where it was clear there was another party(ies) involved, and it was just a matter of flushing them out. There was no reason to believe another property was involved.
THE LAW, ANALYSIS and CONCLUSION
[26] The Limitations Act, 2002 creates a presumptive limitation period of two years, starting from the day on which the claim was discovered.
[27] Section 5(1) specifies when a claim is discovered, setting out the elements that a party must be aware of before being deemed to have discovered that they have a claim to assert. A plaintiff is presumed to have knowledge of all of these elements on the day of the act or omission giving rise to the claim pursuant to s. 5(2).
[28] The exception to this general regime involves what has come to be referred to as discoverability. This is dealt with in s. 5(1)(b) which provides that the claim is deemed to be discovered on the earlier of the date on which all of the elements listed in s. 5(1)(a) in are first known and the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought have known of the matters referred to in clause (a).
[29] Section 5(1)(b) creates what is commonly referred to in case law as the due diligence test. It is not enough for a plaintiff to simply state that they were not aware of the identity of another potential defendant earlier. They must go farther, and demonstrate that they took steps to identify others that might be involved.
[30] The issue becomes what a plaintiff must do to demonstrate that they have satisfied that test in the context of the type of claim they are involved in. On a general level, the test contains both objective and subjective elements. By speaking of a reasonable person as the standard, the Act takes an objective approach, such that the standard of what is reasonable is applied across the board to all.
[31] However, this objective language is tempered in the Act by subjective elements. The Act does not speak generally about the reasonable person, but instead, suggests that what will be expected of that reasonable person will vary, depending on his abilities and in [his] circumstances.
[32] The words in the circumstances are particularly important. They suggest a case by case analysis, or a contextual approach. What is reasonable in each case will vary with the facts of that case.
[33] As a result, what would be expected from a plaintiff involved in an outdoor slip and fall accident would differ from what a plaintiff in a motor vehicle accident would be expected to do to demonstrate due diligence. In the latter instance, there are public records, such as motor vehicle accident reports, as well as licence and plate searches available to assist identifying potentially liable owners and drivers. Similarly, in a medical malpractice action, there are hospital records that can be ordered and reviewed to identify all doctors and hospital staff involved in patient care.
[34] Accordingly, the inquiry in each case must be “what did this plaintiff have to do, in the context of their claim, to show that they undertook the necessary level of inquiry to satisfy the due diligence test?” Case law is therefore helpful, in terms of articulating general principles, but unless the facts are sufficiently similar, cases cannot be viewed as setting a specific bar that a particular plaintiff must meet.
[35] In Higgins v. Barrie (City) 2011 CarswellOnt 2398, DiTomaso J. provided a helpful analysis of the prevailing approach in the context of a slips and fall accident that occurred on a city street. There, the plaintiff sought to add a snow removal contractor after the expiry of the presumptive limitation period and was barred from doing so. The plaintiff learned that the identity of a contractor who handled the city’s snow removal during discoveries, about 4.5 years after the date of loss, and they in turn, identified the contractor to whom they had subcontracted this work.
[36] After reviewing the relevant case law, DiTomaso J. posed the question, how much evidence must the plaintiff put in at the pleadings amendment stage to establish that the proposed defendants could not have been identified with due diligence within the limitation period, answering his question as follows: not very much.
[37] This low threshold reflects the court’s preferred route of trying cases on their merits, when tensions are at play that appear to challenge that outcome. Lauwers J. referred to this in Madrid v. Ivanhoe Cambridge Inc. 2010 ONSC 2235, 2010 CarswellOnt 2799, where he noted that the dominant policy thrust of the system of justice is that cases should be heard on the merits. He discussed this is relation to the often competing policy thrust which involves encouraging plaintiffs to issue their claims as soon as possible. He concluded that the third policy thrust – a tempering one – resulted in the discoverability principles now enshrined in the Limitations Act, 2002.
[38] Lauwers J. went on to discuss what the court expects, and does not expect, a plaintiff to do to meet their “due diligence” onus:
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 absence of an unexpected or unusual trigger, there is little to be gained by imposing a judicially 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 ….
[39] The case at bar does not involve the identity of a snow removal contractor, a potential defendant one would normally expect to be involved in many outdoor slip and fall cases that occur in winter, as was the case in Higgins (supra), and in Pooran v. 2029301 Ontario Ltd. (07-CV-326276, released July 2008, citation not provided by counsel) where I refused a motion to add the contractor after the expiry of the presumptive limitation period.
[40] As a snow removal contractor can easily be anticipated in these cases, inquiries as to identity of these potential parties should be common place in actions of this kind. However, as discoverability requires the court to assess what is reasonable in the context of the circumstances of the actual case it is dealing with that is where the court’s focus must be. The question must be what would have been reasonable for the plaintiff or her representatives to have done in the circumstances of this case.
[41] In this case, the possibility that the ice patch on which the plaintiff fell was the result of water being discharged from anywhere other than the property in front of which she fell is not something one would generally expect. I agree with Lauwers J. in Higgins (supra) and point out that there would have been little to gain in this case by sending pro forma letters to these two defendants, asking about other possible players, or, as counsel for the proposed parties suggested, having plaintiff’s counsel knock on doors of neighbours or target defendant.
[42] The plaintiff did receive a notice letter, yet failed to respond to it, to indicate that the water might have come from elsewhere. Similarly, there was no word from her insurance adjuster about any investigation they may have been conducting in that regard. Finally, her counsel did not contact plaintiff’s counsel early on to alert him to what he perceived as another avenue they should be expiring.
[43] The action was defended without reference to the third party, the third party action having been issued only days after Steenwyk denied knowledge of any of this. Finally, though her counsel was approached and specifically asked for any particulars after having issued the third party claim, he did not respond.
[44] In my view, the plaintiff has met her onus of showing due diligence in the circumstances of this case. The proposed parties rely on my decision in Lima v. Moya; Mata v. Moya 2014 CarswellOnt 316 where I noted that a plaintiff should proceed to include a defendant once they know their identity and there is some information on which a court could make a finding of liability, without necessarily having satisfied themselves that they have a winning case against that party. In the case at bar, the plaintiff was not aware that number 5 could have played a role in her fall, and the only information she had about the owners of that property was that they had been third partied by Steenwyk on the basis of a bald assertion in a third party claim. That case is very different from the one currently before the court.
[45] During the course of the hearing, I repeatedly asked counsel for the proposed parties what more she felt the plaintiff ought to have done. Her response was that what was available to be known could have been discovered earlier. That is a circular response in view of where the matter currently sits as it ignores the fact that, at this stage, all that is known is that the owners of number 5 have been third partied but it is not clear why. The allegation made against them is vague and general. No particulars were provided by Steenwyk’s counsel when they were asked for details an none are pleaded. This is quite unlike Lima v. Moya, where counsel and the plaintiffs were always aware of the identity and the role played by of the person they later sought to add.
[46] Counsel for the proposed parties maintain that plaintiff’s counsel ought to have turned their minds to the possibility of other defendants and that they should have investigated further. But she gave no indication of where they could even begin such an inquiry. As I noted earlier, the photographs relied on by the proposed parties were of little help.
[47] Counsel for the proposed parties also submitted that plaintiff’s counsel ought to have gone to the scene to investigate, although, again, it is not at all clear that their presence there would have added anything to the mix. What should they have been looking for? Even if a pipe is visible, without knowing if it is connected, there is little opportunity to understand if it played a role in the plaintiff’s fall. If a pipe is located on private property, an expert cannot simply walk onto the property and test it. Presumably that explains the absence of detail in the third party claim vis a vis these proposed parties.
[48] Although plaintiff’s counsel was served with the third party claims within almost a year of the expiry of the presumptive limitation period, it would have been premature and not responsible of plaintiff’s counsel to have sought to add the third parties as defendants at that point without first exploring how they are actually implicated. Counsel for the proposed parties maintains the plaintiff should have done more, but none of her suggestions for what “more” could have consisted of are appropriate and/or helpful.
[49] This case is very different from a situation where a plaintiff ignores parties named on a motor vehicle accident report or fails to make inquiries before the expiry of a presumptive limitation period regarding a snow removal service.
[50] As was noted in Higgins, not much evidence is needed to show due diligence. An inquiry was made in this case once plaintiff’s counsel became aware of the existence of potential defendants – they wrote to Steenwyk’s counsel for more information and were ignored. This is not a run-of-the mill factual scenario where they ought to have anticipated the possibility that a neighbour could be involved or that, once learning that this was a possibility, that there was an obvious path for them to pursue in order to confirm that was the case. Having written, they were entitled to wait for a response. Having received none, they then opted to add these parties.
[51] Proportionality governs the approach all counsel are mandated to apply in all cases. As a result, a widespread investigation at large into all possible defendants in all kinds of actions is not what the court expects. In my view, the standard the proposed parties wish this court to adopt is an overly onerous one, one certainly not called for on the facts of this case. In the context of facts in play here, I believe that it would have been unreasonable or abnormal for plaintiff’s counsel to have undertaken the level of investigation during the presumptive limitation period or after receipt of the third party claim advocated by counsel for the proposed parties (see Mercurio v. Smith, 2011 ONSC 3904).
[52] In all of the circumstances, I am of the view that the two year limitation period only began to run in this case upon service of the third party claim on March 27, 2014 as that is when the plaintiff first had notice that the owners of number 5 could have done or failed to do something to attract liability.
[53] I am also satisfied that this is when they first ought to have had notice, having applied due diligence. Nothing that counsel for the proposed party put forward to suggest that the plaintiff was somehow derelict in her duty to investigate further, was, in my view, warranted.
[54] Going back to the question I posed at the outset, “what did this plaintiff have to do, in the context of their claim, to show that they undertook the necessary level of inquiry to satisfy the due diligence test?” I am satisfied that, by writing to Steenwyk’s counsel once they were served with the third party claim, the plaintiff met the standard of what the reasonable person would have done in the circumstances of this case. This is not to say that writing a letter will always suffice, but in the circumstances of this case, it is all that was reasonably required.
[55] As this motion was booked and actually heard within two years of the trigger date, on the basis of the principles of discoverability, the request to add these parties was made within the applicable limitations period. I see no basis for making the order subject to allowing the proposed defendants to plead the expiry of the limitation period as I am satisfied on the evidence that discoverability has been established.
[56] The motion is therefore granted. If the parties are unable to agree as to costs, I can be spoken to within the next 30 days.
(original signed)__
Master Joan M. Haberman
Released: April 14, 2016