Court File and Parties

COURT FILE NO.: CV-16-545100 MOTION HEARD: 20171117 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jessica Pashkiewich, Plaintiff AND: City of Toronto, Karpaty Variety of European Foods and A.P. Dollar House, Defendants

BEFORE: Master Jolley

COUNSEL: V. Purewal, Counsel for the Moving Party Plaintiff Stephen Libin, Counsel for the Proposed Added Defendant Pave-Tar Construction Ltd.

HEARD: 17 November 2017

Reasons for Decision

[1] The plaintiff brings this motion to add Pave-Tar Construction Ltd. as a defendant to this action after the expiry of the putative limitation period. Pave-Tar opposes the relief sought.

[2] The plaintiff relies on section 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c.24, Schedule B to argue that the limitation period did not begin to run until 8 September 2017, the date the City of Toronto advised her lawyer that the City had a winter maintenance contract with Pave-Tar. She argues that she did not discover the existence of Pave-Tar or its potential role until that date and could not have discovered the identity of Pave-Tar with reasonable diligence before that date.

[3] Section 5(1) of the Limitations Act, 2002 states:

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).

[4] The plaintiff did not swear an affidavit so little is known of her “abilities and circumstances”. What we do know in terms of the evidentiary record is that the plaintiff slipped and fell on a sidewalk that she pleads was owned and occupied by the City of Toronto. We know the slip and fall took place on 6 February 2014. We know that the plaintiff believes she fell because of a failure to clear the sidewalk and road of accumulated ice and snow and that she pleads that the sidewalk and road were not salted or sanded. We also know that, at least by 8 December 2014, she had retained the Grillone Law Firm as counsel.

[5] What we do not know is what the plaintiff did to exercise reasonable diligence in ascertaining her right to seek damages from Pave-Tar. The record discloses that her lawyers wrote a letter to the City of Toronto in December 2014 putting it on notice of her claim. The letter does not inquire about whether was a winter maintenance company.

[6] While the courts do not require plaintiffs to write “pro forma” letters, when a fall takes place on snow or ice in winter on City property, a letter to the City inquiring about a winter maintenance contract should not be considered pro forma but considered a reasonable step.

[7] The plaintiff has the onus of satisfying the court that her claim was not reasonably discovered on the date of the incident. It is uncontested that the bar is a low one. Unfortunately, the plaintiff here has not met even that low bar. She has led no evidence at all to explain why she did not or could not discover the claim against Pave-Tar within two years of her February 2014 slip and fall. As noted by Emery, J. in Fontanilla Estate v. Thermo Cool Mechanical 2016 ONSC 7023 at paragraph 40:

Although due diligence on the part of a person in the plaintiff’s circumstances to determine the elements of a claim is but one factor in the evaluation of when a limitation period begins, it is an important factor. Where from outward appearances a limitation period has expired, or where discoverability under s. 5(1) of the Act is raised, the court is put on inquiry to determine whether a party has acted with reasonable diligence to learn the identity and role of a prospective defendant to extend the start and end date of a limitation period. However, the court requires evidence of the steps taken to meet the obligation to act with reasonable diligence.

[8] It appears from the record that the plaintiff took no steps to determine if there was a winter maintenance contractor despite every indication that the plaintiff fell on a city sidewalk that was, allegedly, covered with ice and snow. As noted in Fontanilla at paragraph 45, “the absence of this evidence creates a factual vacuum for the assessment of what reasonable diligence the plaintiffs exercised to discover the identities and roles of possible defendants.”

[9] I adopt the reasoning of my colleague Master Sugunasiri in Melville-Laborde v 3455 Glen Erin Apartments Inc. 2017 ONSC 6004 that, “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.”

[10] As a result, the plaintiff’s motion to add Pave-Tar as a defendant is dismissed with costs payable by the plaintiff to Pave-Tar in the amount of $2,000 forthwith.

Master Jolley Date: 20 November 2017