Melville-Laborde v. 3455 Glen Erin Apartments Inc., 2017 ONSC 6004

CITATION: Melville-Laborde v. 3455 Glen Erin Apartments Inc., 2017 ONSC 6004

COURT FILE NO.: CV-15-520355

MOTION HEARD: 15062017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Melville-Laborde and Maria Cecilia Cauilan, Plaintiffs

AND:

3455 Glen Erin Apartments Inc., Osgoode Properties Ltd. and Briarlane Rental Property Management Inc., Defendants

BEFORE: Master P. T. Sugunasiri

COUNSEL: Lis, B., Counsel for the Plaintiffs/Moving Parties Beesley, J., Counsel for the Proposed Defendant B&L Mettel Ltd./Responding Party

HEARD: June 15, 2017

REASONS FOR DECISION

[1] This is a motion brought by the Plaintiffs to add B&L Mettel Ltd. (“B&L”) and J&N Landscaping (“J&N”) as Defendants to this slip and fall action, more than two years from the date of loss. Only B&L appears to oppose the motion. J&N is a subcontractor of B&L. The issues are whether or not the Plaintiffs have demonstrated sufficient diligence and explanation as to why the claim against B&L could not have been discovered within the two years and even so, whether the motion fails because the Plaintiffs failed to plead discoverability in their proposed Amended Statement of Claim.

[2] For the reasons that follow, I dismiss the motion as against B&L. In doing so, I balance the interest of the Plaintiffs in fully pursuing their Claim with the interests of third party contractors who are entitled to some sense of comfort that they are free from litigation after a legislated limitation period has expired. This balancing exercise is especially important in these types of cases in which snow removal entities/individuals are involved. Inherent to this line of work is the regular potential to be sued for slips and falls that may happen in areas that snow removers clear. In the absence of any evidence on the issue of diligence within the two year limitation period, the policy thrust of giving certainty and closure to potential defendants, prevails.

Facts:

[3] The facts of the case are straightforward. The action arises from injuries alleged to have been sustained by the Plaintiff Melville-Laborde (“Plaintiff”) as a result of a slip and fall that occurred on January 29, 2013. At that time of the incident, the Plaintiff was a tenant of 3455 Glen Erin Drive in Mississauga. The alleged slip and fall took place near the exterior of the west side lobby doors of the building. The Plaintiff alleges that he fell on an accumulation of ice and snow.

[4] The Plaintiff waited almost two years to retain counsel and did so on January 9, 2015. On January 20, 2015, Plaintiff’s counsel put the Defendant Glen Erin Apartments Inc. (“GEA”) on notice of the Plaintiff’s claim as well as that of his spouse, Ms. Cauilan (“FLA Claimant”). The Statement of Claim (“Claim”) was issued on January 22, 2015.

[5] There is no evidence on what the Plaintiff did in those two years with respect to discovering possible tortfeasors, whether from the Plaintiff himself or another affiant on information and belief. There is no evidence, for example, as to how the Plaintiff knew to bring the matter to a lawyer within two years from the date of loss. There is no evidence on this issue, at all.

[6] After the Plaintiff and the FLA Claimant retained counsel, counsel took steps to determine possible tortfeasors and was told in November of 2015 by counsel for the Defendants about a potential third party claim against a contractor responsible for the snow removal.

[7] On January 7, 2016, counsel for the Defendants produced a contract between GEA and B&L. While the contract was described as the relevant one for winter of 2013, the contract itself was only for the period from April 1, 2001 to March 31, 2012.

[8] In May of 2016, counsel for the Plaintiff and the FLA Claimant followed up about receiving the contract that covered January of 2013. After further inquiry in June and August, the Defendants produced the relevant contract on September 16, 2016.

[9] Counsel for the Plaintiff and FLA Claimant then put B&L on notice of the claim on October 6, 2016. The adjuster for B&L’s insurer corresponded with counsel on October 21, 2016 and indicated that B&L had contracted with J&N Landscaping (“J&N”) for the 2012/2013 winter maintenance of the Glen Erin Apartments. A notice of motion was served on B&L and J&N on December 14, 2016.

Applicable Rules and Legislation:

[10] Rules 5.04(2) and 26.01of the Rules of Civil Procedure essentially allow parties to amend their pleadings at any stage of the proceeding, with leave of the Court, and subject to some exceptions. The relevant provisions are as follows:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.

[11] The threshold to grant amendments pursuant to Rules 5.04 and 26 is generally quite low. It is well established, however, that despite the mandatory language of Rule 26.01, in determining whether or not to grant an amendment, the Court must consider, among other things, whether or not the proposed claim is tenable: Marks v. Ottawa (City), 2011 ONCA 248; [2011] OJ No.1445 at para 19 (CA). Included in that scrutiny is whether or not the proposed amendment runs afoul of any limitations periods.

[12] In the present case, the motion to add B&L is brought 41/2 years after the date of loss. The notice of motion was served almost 4 years after the date of loss. The issue of limitations is therefore central to the motion.

[13] Rule 26.01 also has a prejudice component. In other words, an amendment will not be allowed if the party opposing the amendment can show that there will be prejudice that cannot be compensated by costs or an adjournment. However, where there is a claim that the limitation period has expired, there is a presumption of prejudice that must be rebutted by the moving party.

[14] The relevant sections of the Limitations Act, 2002 are as follows:

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.

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).

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).

Analysis:

The Plaintiff has not provided any relevant evidence on discoverability

[15] The Limitations Act, 2002 makes it clear that the basic limitation period to commence a proceeding is two years from the date it was discovered. As noted by Justice Weiler in York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. (2007), 2007 ONCA 49, 84 OR (3d) 414 at para. 2 (CA), the purpose of the new Act is to “balance the right of claimants to sue with the right of the defendants to have some certainty and finality in managing their affairs.” the Act protects the right to sue by incorporating common law discoverability principles. Subsection 5(2) of the Act presumes that the date of discovery is equivalent to the date of loss, unless a plaintiff can show that the cause of action could only be reasonably discovered at a later date.

[16] The countervailing protection intended by limitations legislation for potential defendants is expressly stated by the Ontario Law Reform Commission in its 1969 report to the Attorney General (Report of the Ontario Law Reform Commission on Limitation of Actions (Toronto: Department of the Attorney General, 1969)):

Lawsuits should be brought within a reasonable time. This is the policy behind limitation statutes. These laws are designed to prevent persons from beginning actions once that reasonable time has passed. Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter. Nor is it in the interests of the community that disputes should be capable of dragging on interminably. Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute. A statute of limitation is sometimes referred to as an “Act of peace”.

[17] The main issue in this motion is whether the Plaintiff and the FLA claimant can rely on the discoverability principle found in section 5 of the Limitations Act, 2002. In order to do so, they must establish that given their abilities and in their circumstances, September 16, 2016 is the first day they reasonably could have known about their claim against B&L.

[18] The subjective component of this subjective-objective test makes the Court’s discretion in determining discoverability, highly discretionary and unique to the facts of each case. In other words, whether or not a plaintiff satisfies this burden is a question of fact: Lima v. Moya, 2015 ONSC 324 (SCJ), [2015] OJ No 171 at para. 76, aff’d on appeal 2015 ONSC 3605 (DivCt), [2015] OJ No 3101 at para. 19; Arcari v. Dawson, 2016 ONCA 715; (2016), 134 OR (3d) 36 at para. 10.

[19] If a plaintiff does not raise any issue of credibility or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim by exercising reasonable diligence, the Court may deny the motion. In meeting this onus, the bar is not very high but there needs to be some minimal degree of explanation (Wakelin v. Gourley, 2005 CanLII 23123 (Master Dash)).

[20] I am also mindful that the Ontario Court of Appeal has stated that the absence of due diligence in discovering a claim is not a separate and independent reason for dismissing a claim (Fennel v. Deol, 2016 ONCA 249 at para. 18). While this comment was made in the context of a summary judgment motion, at least one Master has applied it in the context of a motion to add parties after the expiration of a limitation period (See Wong v. Salivan Landscape Ltd., 2016 ONSC 4183 (Master Haberman)). There is also a line of cases that relies on Justice Lauwer’s comments in Madrid v. Ivanhoe Cambridge Inc. et al., 2010 ONSC 2235 at para. 15 that in the absence of an unexpected or unusual trigger, there is little to be gained by imposing a free-standing duty on plaintiffs to write pro forma letters to identify possible defendants. (See for example Master Short’s decision in Klein v. Stiller, 2015 ONSC 3705).

[21] Finally, if there is an issue of fact or credibility, the appropriate remedy is to allow the amendment without prejudice to the added party raising the limitations defence in its pleading: Pepper v. Zellers Inc. 2006 CanLII 42355 (ON CA), 2006 CarswellOnt 7985, [2006] OJ No 5042 at paras. 18, 19, 24 (CA).

[22] In the present case, the Plaintiff and FLA Claimant argue that the time to sue B&L and J&N did not start to tick until September 16, 2016 when the winter maintenance contract from April 1, 2012 to March 31, 2013 was provided to counsel. They rely on some of the jurisprudence cited above to further argue that lack of due diligence does not preclude their proposed claim against B&L and J&N.

[23] B&L argues that the motion must be dismissed because the Plaintiff nor any other affiant has provided any evidence as to discoverability during the relevant time period – that being the two-year period after the date of loss. B&L asserts that the absence of any such evidence is fatal to the motion.

[24] I agree with B&L. There is absolutely no evidence in this case as to what occurred between the date of loss and the time that the Statement of Claim was issued, which was shortly before the expiry of the two-year limitation period. While I accept that Plaintiffs should not be required to send pro forma letters and that the expectations placed on unrepresented Plaintiffs to identify tortfeasors should be low, this does not mean that a Plaintiff can succeed on these motions with absolutely no evidence on the issue.

[25] At the very least the Plaintiff, or other affiant, could have explained what was happening in the relevant two-year period and/or describe the level of knowledge that the Plaintiff did or did not have in pursuing the Claim. For example, how did the Plaintiff know to bring the matter to a lawyer shortly prior to the expiration of the two-year period? Without any evidence to this effect, a Court cannot determine, as stated in section 5(1)(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).” I was provided with no evidence on the Plaintiff’s abilities or circumstances.

[26] The decision in Fennel, supra ought not to be adapted to motions to add defendants such that plaintiffs may proceed even where no evidence of diligence is tendered. Otherwise, the Court would be acting as “little more than a rubber stamp” as noted by Master Dash in Wakelin, supra at para. 27 and it would render section 5(1)(b) of the Limitations Act, 2002, inoperative. Further, as I stated at the outset, snow removal and other such contractors are routinely potential defendants, given the nature of their work. These are precisely the types of defendants contemplated in the underlying policy goal of limitations legislation: “…that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter.” It would be even more unfair to allow a plaintiff to proceed against a proposed defendant where there is a complete absence of evidence on discoverability during the relevant time period (as opposed to after the limitation period expired, which is the only evidence that was provided in this motion.)

[27] Given my findings on the first issue, I need not address B&L’s submissions with respect to the need to plead discoverability in the body of the proposed Amended Statement of Claim rather than waiting for Reply. I do note, however, that while there does appear to be two decisions that suggest the same (Parsons v. Deutscher Estate, 2008 CarswellOnt 4370 (Div Ct) and Shilling v. Anishnabe Wiisookodaadiwin Treaty No. 3 Corp.,[2002] OJ No 5053 (Master)), Shilling can be readily distinguished on its facts and the broader issue in Parsons has been more recently addressed by the Ontario Court of Appeal in Collins v. Cortez, 2014 ONCA 685. In any event, I leave that discussion to another day.

[28] I also need not discuss the issue of prejudice as I have found that the Plaintiff and FLA Claimant’s proposed claim against B&L is statute-barred.

Costs Follow the Event

[29] Both parties provided me with very similar costs outlines. As such, the amount claimed by B&L would have been in the reasonable contemplation of the Plaintiff and the FLA Claimant. In applying the factors in Rule 57.01, there is no reason to deviate from the outline provided.

The Court is not Bound by J&N’s Non-Participation

[30] Even though J&N did not oppose or participate at the hearing, in my view it is still necessary to exercise my discretion with respect to the proposed claim against it. That discretion is independent of the position of the parties. In other words, the consent of a party is an important factor that this Court considers but it is not determinative of the issue, since to hold otherwise would be to fetter the discretion otherwise given to this Court under Rules 5.04 and 26 and as developed in the jurisprudence. In this case, J&N is in the same position as B&L. My reasoning does not turn on anything unique to B&L but rather on the absence of evidence provided by the Plaintiff as to what steps were taken between the date of loss and when counsel was retained shortly before the expiration of two-year limitation period. I am therefore inclined to dismiss the motion as against J&N as well. However, since the Plaintiff did not have an opportunity to address this issue, I make the following order:

a. The motion is dismissed as against B&L Mettel Ltd. with costs payable by the Plaintiffs in the amount of $5512.01 within 30 days from the date of this Order; and

b. The motion with respect to J&N is adjourned to me in writing to allow for further written submissions as follows:

i. The Plaintiffs shall file written submissions of no more than 5 pages double spaced with no more than 3 authorities with respect to whether or not I am bound by J&N’s non-participation or consent to the motion in exercising my discretion, within 10 days from the date of this Order.

Original signed

“Master P. Tamara Sugunasiri”

Date: October 10, 2017