Court File and Parties

COURT FILE NO.: 59283/09 DATE: 2016-09-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Maria Carone Plaintiff / Respondent

– and –

PEEL CONDOMINIUM CORPORATION NO. 766, SIMERRA PROPERTY MANAGEMENT INC., MOSSTEK LANDSCAPING INC., CARRYING ON BUSINESS AS MVP LANDSCAPING, and CASEY JOHN MOSS, CARRYING ON BUSINESS AS MVP LANDSCAPING Defendants / Applicants

Counsel: Daniel Balena, for the Plaintiff / Respondent Joel Cormier, for the Defendants / Applicants

HEARD: August 23, 2016

Justice B.A. Glass

Summary Judgment Motion of the Defendants Mosstek & Casey

[1] The action of Ms. Carone claims personal injuries sustained when she slipped and fell on property of Peel Condominium Corporation in March 2007.

[2] The Defendants Mosstek Landscaping Inc and Casey John Moss were not added to the action until December 2013.

[3] The Landscaping Defendants / Applicants take the position that when they were added as parties to the action, the limitation period for the claim was expired and now they seek an order dismissing the claim because of the limitation period eliminates the claim. They submit that there is no genuine issue requiring a trial.

[4] On the other side of the coin, the Plaintiff submits that discoverability applies thereby blocking the loss of a limitation period. The action was commenced and pursued actively. With all the discussions between the Plaintiff, Peel and Simerra, there was no hint that there was a party responsible for snow and ice removal. Once the Plaintiff discovered this factor, she added the two landscaping Defendants.

Issues

[5] Is the claim of the Plaintiff to be removed because of the passage of time pursuant to the Limitations Act?

[6] When does the discoverability factor come into play?

[7] Did the Plaintiff move to add the landscaping defendants within a time limit once a claim against them was discovered?

Analysis

[8] If this were simply a missed limitation period, there would be no genuine issue requiring a trial. However, the fact situation displays a reasonable explanation that the discovery of another party was not made through any negligence of the Plaintiff. The evidence in the materials leaves no doubt that the claim was not made until discovery of the identity of the snow removal defendant. The core issue though is whether the Plaintiff failed to exercise due diligence to determine if there were a snow removal contractor.

[9] The plaintiff and initial defendants advanced openly. There was no suggestion by Peel and Simerra to infer that someone else might have been at fault for the state of conditions of the surface upon which persons walked.

[10] After the two year limitation period expired for Peel and Simerra to make a claim against Mosstek and Casey, Peel brought the existence of the snow removal contractor to the Plaintiff’s attention as well as noting that Peel and Simerra could not claim against Mosstek because of a limitation period.

[11] That development of information left the Plaintiff as the only possible claimant to add Mosstek and Casey as parties and pointed out that factor to the Plaintiff.

[12] There is no doubt that a Plaintiff has an obligation to search out information when advancing a claim. Mr. Balena, in his affidavit, states that he did exercise diligence in exploring the facts of the accident and the parties involved. At no time within the two year limitation period did he discover the existence of Mosstek and Casey. When he did make that discovery, the statement of claim was amended by adding Defendants.

[13] The Plaintiff submits that the two year limitation period is affected by the discoverability rule found at section 5(1) of the Limitations Act. In a nutshell, the limitation period commenced running for Mosstek and Casey when their identity was discovered. If that is correct, the claim against Mosstek is a valid claim advanced within the Limitations Act boundaries.

[14] If a party fails to make inquiries about possible claims in this case against Mosstek and Casey by not asking any question, that party might find herself outside a limitations period.

[15] Mr. Balena through his affidavit states that he provided notice to Peel and Simerra and negotiated with them and their counsel. The whole of his work explored who should be liable and at no time did Peel and Simerra mention Mosstek and Casey. The Plaintiff says that only when Peel brought Mosstek and Casey to Mr. Balena’s attention and the fact that Peel was outside a limitation period did the Plaintiff have the commencement of a limitation period.

[16] In this motion, Peel takes no position and has advised that it will live with a dismissal of a claim against Mosstek and Casey.

[17] This is not a situation that would eliminate the issue requiring a trial of the liability of Mosstek and Casey.

[18] I am persuaded that there is evidence that the Plaintiff did take reasonable steps to determine who might be liable for her injuries. Peel and the property manager had the opportunity to disclose the identity of Mosstek and Casey and failed to do so. The Plaintiff should not be deprived of the opportunity to advance a claim against them because their identity was not disclosed.

Conclusion

[19] The motion by Mosstek and Casey is dismissed. There is a genuine issue requiring a trial.

[20] Costs to the Plaintiff are fixed in the sum of $5,000 plus H.S.T. on a partial indemnity scale. This motion was scheduled as a long motion. The parties presented facta, books of authority and bills of costs for what was not a minor topic. A client of modest means would reasonably anticipate such costs.

Justice B. Glass Released: September 12, 2016