Court File and Parties

COURT FILE NO.: CV-16-566904

MOTION HEARD: December 20, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nasir Ahmad Khalid, Plaintiff

AND: 2262351 Ontario Inc., o/a Shoppers Drug Mart, and Mervyn Dube Pharmaceuticals Ltd., Defendants

BEFORE: Master J. Josefo

COUNSEL: Michael Kealy, Agent solicitor for counsel for the Plaintiff, Moving Party, Email: mkealy@moodiemair.com Noam Uri, counsel for the Proposed-to-be-added Defendant, DNA Landscaping Inc., Responding Party, Email: nuri@rileyaikins.ca

HEARD: December 20, 2018

REASONS FOR DECISION and Order

[1] This motion arises out of a typical Canadian winter “slip and fall” accident occurring on January 3, 2015. The Plaintiff, Mr. Khalid, claims to have slipped on ice and fallen outside of a Shoppers Drug Mart store (“Shoppers”) that day. Mr. Khalid promptly, on or about January 19, 2015, retained Mr. Slavko Ristich as his lawyer to represent him in this mishap.

[2] After three telephone conversations between Mr. Ristich and Ms. D. O’Brien, the insurance adjuster for Shoppers, on December 29, 2016, close to the expiry of the two year limitation period, Mr. Ristich commenced the within action. Shoppers was a defendant. Pursuant to paragraph two of the proposed draft amended statement of claim contained in the motion record of the moving party, the numbered company operating as Shoppers and Mervyn Dube Pharmaceuticals Ltd. are the owners and occupiers of the property where the slip and fall occurred.

[3] On January 18, 2018, prior to the scheduled examinations for discovery, the assistant to counsel for the defendants informed Mr. Ristich that the discoveries had to be cancelled. The reason given was that the defendants were likely to add the defendants’ snow-clearing contractor, DNA Landscaping Inc. (“DNA” or the “contractor”), as a third party.

[4] Until January 18, 2018, and thus outside of the ordinary or presumptive time-limit, Mr. Ristich was unaware of the existence of the contractor. The Plaintiff thus in this motion seeks to add DNA as a defendant in this within action, despite the expiry of the presumptive two year time limit. Mr. Kealy acts as agent for Mr. Ristich in that regard. DNA opposes the motion. Before me Ms. Uri appeared to argue its’ position.

[5] The Limitations Act, 2002, particularly sections 4 and 5, along with Rule 5.04 (2), are I find what governs in this matter. Section 4 provides the general rule that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. Section 5(1) addresses when a claim is discovered, and thus “discoverability”. As the plaintiff states in his factum, as I summarize, “a claim arises when the facts on which it is based have been discovered, or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Aquonie v. Galion Solid Waste Material Inc, 1998 CanLII 954 (ON CA), 1998 CarswellOnt 417 (C.A.) at paragraph 24 [emphasis mine]).

[6] The issue on this motion is whether Mr. Ristich was reasonably diligent when he only discovered, in January 2018, thus after the two year time limit, the existence of the contractor. Acknowledging the low hurdle that he must get over, did he meet his obligation by being reasonably diligent in the circumstances of this case?

[7] To answer that, I must consider, when applying the discoverability principles as these have developed from case-law, including the recent (2018) Court of Appeal decision in Morrison v. Barzo, when Mr. Ristich (given that, as Mr. Kealy properly stated in his submissions, once Mr. Khalid retained counsel, the primary onus was on counsel) knew or ought to have reasonably known that an act or omission of DNA caused or contributed to the injuries of Mr. Khalid. In addressing that, I must be satisfied that a reasonable person in similar circumstances ought to have similarly discovered the claim. I also will attempt to identify by when the claim should have been discovered. It will hopefully be clear from these reasons why I have come to my conclusions.

[8] In this case, in my view the date of reasonable discoverability will be no clearer at any later stage of the litigation then it is at present. Mr. Ristich was cross-examined on October 22, 2018 on his affidavit of September 7, 2018. His evidence then is likely as good as it will ever be, and probably better than would be his fading memory as more months or years pass.

The sworn affidavit and the cross-examination transcripts reveal to me, however, very little truly reliable evidence. Paragraph 8 of the affidavit contains a double hearsay: “…and my client advised me that he was told that Shoppers was responsible for salting and clearing this area.” Mr. Ristich also refers to what is described as an “incident report”, which item is attached to his affidavit. Yet that is not, as one might expect given the formal name, a form completed by the store for its insurer. Rather, all that document is, is a hand-written page of notes consisting in part of the following:

• the name, address and phone number of Mr. Khalid, • a note that he “fell on ice…” and the location where he fell, • a reference to an unidentified witness, • seemingly, instruction to Mr. Khalid that “I will need if you go to the Doctor a complete report from fall on Jan. 3/15”, • in the handwriting of another person, identified as Mr. Ristich’s assistant who could speak in the language of Mr. Khalid, the following: “client fell and then they salted. The person who put salt take him to the store” [as in original].

[9] Most importantly, in my view, this document identifies the assistant store manager of the Shoppers location, and has a telephone number for him. Yet there is no evidence that Mr. Ristich ever called this individual to ask him about snow-clearing or, for that matter, to ask about anything else.

[10] Rather, at question # 122 from his cross-examination, in response to the question, “did you ask your client if he spoke to the person who had salted the property?”, Mr. Ristich answered, following some hesitation, “…after he got taken into the store he told me that Mr. Bailey [the assistant store manager] had told him that they were going to do the salting now—and by ‘they’, I mean Shoppers was going to do the salting now. That’s why Nooria [the assistant of Mr. Ristich] put that note, because it was specifically different than what was in the incident report”.

[11] Given those specific contradictions in information of which Mr. Ristich was obviously aware, given his above-noted testimony, and given that his client had linguistic challenges, I am unable to fathom why Mr. Ristich was content to simply stop there, and to rest there, for the next many months. Even if on an urgent basis, which arguably this was given someone falling in front of the store, staff from the store went outside to throw down salt (likely to prevent anyone else falling), that alone ought by no means lead to a reasonable conclusion that a commercial business did not have a contractor. Moreover, it is in my view hardly clear, as Mr. Ristich purported to assert, that the store was itself taking care of the salting and clearing of snow. Mr. Ristich had the name and phone number of the assistant store manager, Mr. Bailey. All he had to do, initially, was to call him and ask about this to verify his assumptions.

[12] As Master Sugunasiri stated in Laurent-Hippolyte v. Blasse et al, 2018 ONSC 940, “due diligence is not about information arriving at one’s doorstep—it is about actively taking steps outside the door”. Similarly, Master Jolley in Pashkiewich v. City of Toronto, 2018, ONSC 6921, remarked that, “while courts do not require plaintiffs to write ‘pro forma’ letters, when a fall takes place on snow or ice in winter…a letter [in that case, to the defendant municipality] inquiring about a winter maintenance contract should not be considered pro forma but considered a reasonable step.”

[13] I agree. Whether a municipality or a business premise, it is a reasonable, straight-forward and, indeed, quite minimal step to make modest inquiries about who is responsible to clear the snow. Counsel should not simply assume something. Relying on confused and contradictory “information” (in this case, assumptions more than anything else) from ones client without doing more was, I find, simply not sufficient, even considering the low burden. It was below the requisite standard of reasonable diligence.

[14] In this case, I find that Mr. Ristich, if acting with ordinary or reasonable diligence, and taking the most minimal of steps, would likely have discovered the existence of DNA within a week or so after he obtained the so-called incident report, and telephoned Mr. Bailey given his number was on that document. It was that easy—counsel did not have to investigate who to call (at least not initially); the name and phone number were there. All that had to be done was for Mr. Ristich to make that phone call and ask the question. Alternatively, if Mr. Ristich had made even one inquiry to insurance adjuster O’Brien about a snow-clearing contractor during even one of his three admittedly brief telephone discussions with her (for which calls he inexplicably kept no notes), again, he would have likely learned of the existence of this defendant in good time. Even if answers had not been forthcoming, the asking of the question would have been evidence of reasonable diligence.

[15] Yet Mr. Ristich unfortunately did none of this. Rather, he waited for the information to arrive at his doorstep, instead of taking even one of the several available reasonable (and very simple and easy) steps, any of which I find would have been an exercise of reasonable diligence. I accordingly am unable to find that Mr. Ristich acted with reasonable diligence in the circumstances of this case. Had he acted reasonably, I find that he would have very likely discovered the existence of DNA on several occasions well before the expiry of the limitation period.

[16] I am unable to be more precise about when Mr. Ristich would have likely obtained the information on these facts, because Mr. Ristich in his evidence was imprecise—he could not remember, and again, he had no notes, when he had conversations with the insurance adjuster; he was not even sure when, specifically, the “incident report” was created.

[17] Referring to the decision of Melville-Laborde v. 3455 Glen Erin Apartments Inc. 2017 ONSC 6004, another decision of Master Sugunasiri, I agree this type of case involves a balancing of rights. I also agree that:

“…third party contractors are entitled to some sense of comfort that they are free from litigation after a legislated limitation period has expired…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.

[18] Accordingly, for all these reasons, the plaintiff’s motion to add DNA as a defendant is dismissed with costs.

[19] To assist the parties come to an agreement on costs, if not yet done they should each exchange their bills of costs and, (unless offers were exchanged or other unusual circumstances exist) if the partial indemnity rates are relatively equal, the plaintiff could agree to pay that or close to that quantum to DNA. If the parties cannot agree on costs, they may book a tele-conference with me through my Assistant Trial Coordinator.

(original signed)_ Master J. Josefo

Date: December 21, 2018