COURT FILE NO.: CV 15-226
DATE: 2019April25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marla Dianne Garner Dawes, Blair Dawes, Marisa Bettencourt and Jorden Bettencourt and Patrick Bettencourt, Devin Bettencourt Allen, Anna Bettencourt and Landen Allen, by their Litigation Guardian, Marla Dianne Garner Dawes
Plaintiffs
– and –
Landsborough Auctions Ltd. Operating as Triggers and Bows and Eric Tom Vlasic
Defendants
Adam J. Huff, for the Plaintiffs
Christopher P. Klinowski, Counsel for the proposed Defendant, Tony Sloot o/a Sloot’s Auto Body
HEARD: April 17, 2019
the Honourable R. J. Harper
Issues
[1] This is a motion by the plaintiffs to amend the statement of claim to add “Tony Sloot, operating as Sloot’s Auto Body” as defendant in this action.
Background
[2] The action arises out of alleged injuries the plaintiff, Marla Dawes, suffered as a result of her slipping and falling on ice in the parking lot of Triggers and Bows, a retail firearm and archery store in Burford, Ontario on or about November 22, 2014. The remaining plaintiffs are family members.
[3] On January 23, 2015, the plaintiffs’ then lawyer, Kevin Davis, sent letters to the owner of the building and the tenant corporation and asserted that, as a result of their negligence, the plaintiff incurred injuries and suffered a loss. The letter put the owner and the operator of the business on notice that the injuries occurred as a direct result of their negligence and that the plaintiff was holding them responsible.
[4] From that point in time until the end of June, 2015, there was communication between counsel for the plaintiffs and the insurance adjusters. The adjusters wanted a statement from the plaintiff with respect to how the injuries were sustained and any medical information relative to the nature of her injuries. Some of the information that was sought was provided by the plaintiffs’ counsel.
[5] On July 14, 2015, the plaintiffs commenced a claim against the operating company, Landsborough Actions Ltd. as lessee and Eric Tom Vlasic as owner of the premises.
[6] On July 21, 2015 the statement of claim was served on Eric Vlasic.
[7] On July 22, 2015 the statement of claim was served on Julie Landsborough, the person named as in control or management of the business of the tenant Landsborough Auctions Inc.
[8] Between August 4 and 7, 2015 there was an email thread between Kevin Davis and the adjuster for Landsborough asking for a waiver of filing a statement of defense or seeking a position of the plaintiff as to whether they required a defence to be served and filed.
[9] On August 17, 2015 an adjuster for the landlord Vlasic communicated with Mr. Davis confirming that he was waiving any filing of a statement of defence while negotiations for settlement were ongoing and that he would give 30 days’ notice if he was requiring the defence to be filed.
[10] On March 15, 2016 a new adjuster, Mr. Walker, took over the file for the insurer of the landlord. That adjuster confirmed the waiver and asked if Mr. Davis had any questions or comments in the meantime. Mr. Davis did not seek any answers to any questions nor did he have any comments.
[11] On September 15, 2016 insurance adjuster Mr. Walker wrote to Mr. Davis stating that he was “curious” if there was any updated medicals since he last contacted Mr. Davis on March 15, 2016.
[12] The expiry of the initial two year period after the accident incident giving rise to the action was on November 22, 2016.
[13] July 21 and July 22, 2017 was the expiry dates of the two year period after both the landlord owner and tenant operator of the business were served with the statement of claim.
[14] On July 24, 2017 a new lawyer took over from Mr. Davis for the plaintiffs. The new lawyer was no given the file from Mr. Davis until sometime in November 2017 due partly to a dispute regarding fees and disbursements. That issue was settled prior to the release of the file.
[15] The file was not transferred to the new lawyer until November of 2017. It was on that date that the new lawyer first became aware that no statement of defence had been filed.
[16] On March 26, 2018 the new lawyer files a notice of change of lawyers and sent the first of four letters asking for a statement of defence to be filed.
[17] On May 29, 2018, a statement of defence of Landsborough Auctions was served. That statement of defence stated that Sloot Plowing and Removal was retained to remove snow and ice from the parking areas and driveways of it premises. It further stated that Sloot had cleared the lot on November 20, 2014.
[18] By July 10, 2018, the lawyer for the plaintiffs became aware that Tony Sloot is a sole proprietor of the business.
[19] On July 16, 2018 the third party claim by Landsborough Auctions Ltd. is issued and served the same day on Tony Sloot as sole proprietor bearing allegations he “provides snow removal services “ and “ provides winter maintenance services to the property, including the parking lot” cause or contributing to any of the alleged loss of the plaintiff.
Position of the Moving Party
[20] The moving party, the plaintiffs, submit that they first learned that the defendants had retained Tony Sloot operating as Sloot Auto Body to remove snow and ice from the parking areas and driveways of its premises only after receiving the statement of defence dated May 29, 2018.
[21] The plaintiffs rely on the doctrine of discoverability in seeking leave to amend the statement of claim to add the proposed added defendant, John Sloot operating as Sloot’s Auto Body.
[22] The plaintiffs submit that they brought this motion promptly upon learning of the involvement of Tony Sloot as a snow removal contractor.
Position of the Responding Party
[23] The defendant Sloot submits that the Limitations Act, 2002 ss. 4 and 5 require a finding that the claim was discoverable before August 2, 2016 and this is out of time. Sloot submits that the lack of due diligence although it is not a determining factor it is a significant factor in this particular case.
[24] The responding party further submits that there is a lack of any other evidence warranting a trial of discoverability. The two lawyers that represented the plaintiffs in these proceedings were examined. The plaintiff did not waive solicitor and client privilege with her initial lawyer, Kevin Davis nor her subsequent lawyers Ms. Wendy Sokoloff and Stanley Razenberg.
[25] Tony Sloot submitted an affidavit and the moving party submitted four affidavits. Both the initial lawyer, Kevin Davis and subsequent lawyer, Stanley Razenberg, were cross examined on their affidavits.
[26] I agree with counsel for the responding party that no additional evidence would be forthcoming at any subsequent hearing that would relate to the issue of discoverability.
The Law and Analysis
[27] The Ontario Court of Appeal, in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, set out the proper evidentiary threshold in order to grant an order adding a party after the limitation period as expired. Commencing at para. 24, the Court stated:
[24] However, the evidentiary threshold that must be met by a plaintiff on such a motion is low: Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at para. 14; Burtch v. Barnes Estate (2006), 2006 CanLII 12955 (ON CA), 80 O.R. (3d) 365, at paras. 26-27. The plaintiff’s explanation should be given a “generous reading”: Wakelin v. Gourley (2005), 2005 CanLII 23123 (ON SC), 76 O.R. (3d) 272, at para.15, aff’d 2006 CarswellOnt 286 (Div. Ct.). Whether the plaintiff and its counsel acted with reasonable diligence must be considered in context: Fanshawe College of Applied Arts and Technology v. Sony Optiarc Inc., 2014 ONSC 2856, at para. 45 (the “Fanshawe Pleadings Motion”.)
[25] While Arcari, Pepper and Wakelin dealt with motions to add defendants that were opposed based on the apparent expiry of the limitation period under the Act, the same approach, and the same low threshold, is warranted where the motion is opposed or also opposed based on the apparent expiry of any statutory limitation period subject to the discoverability principle: see, for example, Fanshawe Pleadings Motion.
[28] In Mohawk Ford Sales (1996) Limited v. Jewiss, 2018 ONSC 5233, the court provides a helpful summary of the clarifications the Ontario Court set out in Mancinelli. Master M.P. McGraw , in Mohawk, stated. Commencing at para 31:
[31] In Mancinelli, the Court of Appeal provided the following guidance and clarification with respect to opposed pleadings motions on the basis of the apparent expiry of a limitation period:
i.) if a plaintiff does not raise any credibility issue or issue of fact about when its claim was discovered that would merit consideration on a summary judgment motion or a 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 motion judge may deny the motion (para. 23)
ii.) the evidentiary threshold to be met by a plaintiff is low and whether the plaintiff and its counsel acted with reasonable diligence must be considered in context (para. 24);
iii.) in considering whether the plaintiff has provided a reasonable explanation as to why they could not have identified the party (or cause of action), the explanation is to be given a generous, contextual reading (para. 27);
iv.) a plaintiff’s failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time, rather, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b)(para. 30);
v.) where the issue is due diligence, the motion judge will not be in a position to dismiss the plaintiff’s motion in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence, and by when the plaintiff could have obtained such information, such that there is no issue of credibility or fact warranting a trial or summary judgment motion (para. 31);
vi.) the same approach and the same low threshold is warranted where the motion is opposed based on the apparent expiry of any statutory limitation period subject to the discoverability principle (para. 25).
[29] Applying these considerations to this case, I find there is no reasonable explanation in the evidence as to why the plaintiffs could not have identified the party (or cause of action) within the limitation period.
[30] The only explanation that was given by the moving party was that counsel for the plaintiff, Kevin Davis sent letters to the insurance adjusters for Landsborough and Vlasic that detailed the nature of the plaintiffs’ claim and the adjusters expressed that they wanted to work with Mr. Davis in order to try to resolve the claim.
[31] It is within that backdrop that Mr. Davis issued the statement of claim and then waived the filing of a statement of defence pending further discussions.
[32] The moving party submitted that Kevin Davis did conduct reasonable investigations in order to determine if there were any other prospective defendants. Counsel for the moving party referred to the evidence of Kevin Davis in his cross examinations where Mr. Davis stated:
… generally speaking, and with respect to rural properties, I consider this to be a rural property, more rural than urban, that, generally speaking, the owner of a business located in a rural area many times they will do their own ploughing and snow, I mean their own ploughing and salting. And… the last time it had snowed, I think, was three days before, in fact, it rained that morning, making it very unlikely that , even if there was a contractor, they would be walked in that day. And, also, combined with the information that when my client went into the store, which is described in one of the statements given to adjusters, that when she reported it, the owners, the employees, came out and had salt and put salt in the parking lot…
[33] However, there was other evidence of pictures of the subject store and parking lot. These pictures clearly show that the parking lot was extensive. It is not reasonable to infer that just because it was in a more rural area but within the Town of Burford, that the owners would plow the parking lot themselves.
[34] Counsel for the respondent also points out that Mr. Sloot’s business at that time was only 200 metres to the west of the subject property on the same street. He also submits that the owner’s wife of the subject property paid the invoices for Mr. Sloot’s plowing. One of the invoices submitted into evidence was payment for plowing that occurred on the date of the incident, November 20, 2014.
[35] The responding party submits that all Mr. Davis had to do was ask if they had a snow plowing contractor. Mr. Davis stated that if he asked he would most likely not be given accurate information. I do not agree that is a reasonable inference to draw without an evidentiary base and other than Mr. Davis’ mere assumption that the named defendants would not be forthcoming that is no evidentiary basis for that assumption.
[36] The moving party referred to the case of Kozey v. Canadian Tire Corporation (o/a Canadian Tire) 218 CarswellOnt 21563 a decision of Justice Lococo. In that case, the plaintiff commenced a personal injury action against Canadian Tire Corporation o/a Canadian Tire store in Hamilton in February 2014. The original claim states, in error, that the incident occurred outside a Canadian Tire store on Upper James Street. In March 2017 the plaintiff, in that case, obtained leave to amend the statement of claim including to add certain defendants. The amended statement of claim correctly states that the trip and fall incident occurred outside the Canadian Tire Store on Barton Street in Hamilton.
[37] In January 2018, the plaintiff brought a motion for leave to further amend the plaintiff’s claim, including to add two additional defendants, Broadleaf Landscaping and Snow Removal Inc. and Triovest Realty Advisors Inc. Broadleaf and Triovest were the maintenance contractor and the property manager of the Barton Street store. Broadleaf opposed the motion. Justice Lococo granted the motion to add both Broadleaf and Triovest.
[38] The responding party submits that Kozey can be distinguished from the case before me since in Kozey, the plaintiff asked the Kenilworth and the Centre Mall about the proper location of the Canadian Tire store and they did not respond to that inquiry until several months after they were served with the amended statement of claim. Justice Lococo found that under those circumstances the plaintiff would not have known about the existence of Broadleaf before early 2016, which would have been within the two year limitation period.
[39] I agree with the submissions of the responding party. In this case, no questions were asked by counsel. There is no evidence that counsel for the plaintiffs made any inquiries of any of the adjusters they were communicating with. It is reasonable to assume that the adjusters were conducting some investigation about the incident. I find that there is no evidence that any discussions took place about liability and what the insurance companies’ position was given any investigation that may have occurred.
[40] Counsel for the moving party submitted that Mr. Davis was content to let the matter proceed without the filing of a defence since his client’s injuries had not plateaued at the point that new counsel was appointed in March 2018. The moving party submitted that this is not out of the ordinary to wait until the evidence with respect to injuries develops prior to insisting on a defence and proceeding to examinations for discovery.
[41] Counsel for the responding party submits that this case does not have the complex issues that the Court of Appeal was dealing with in Mancinelli. In that case there were some forty-eight banks involved in class action law suit that alleged conspiracy. The particular facts of that case made it difficult to discover all of the potential defendants. It is within that factual underpinning that the reasonableness of the explanation must be viewed.
[42] Counsel for the responding party submitted that the case before me is not at all complex. All that needed to be done was to ask the question. That question being was there any snow removal contractors engaged by the owner or operator of the business. The answer to that question could not be given due to the claim of solicitor and client privilege.
[43] The responding party further submitted that the moving party did not do any amount of investigation in order to determine if there was a contractor involved. All he needed to do was ask the operator of the business if they had engaged a snow removal contractor. Counsel for the responding party points out that filed as an exhibit was an invoice from Sloot for snow removal for the month of November of the year the incident allegedly occurred.
[44] In Rojas v. Porto et al, 2019 ONSC 447, Master Josefo commencing at par. 16 stated:
[16] The Court of Appeal on Galota seemed to agree with the motions Judge that “ a plaintiff must investigate on a reasonable basis with a view to determining the proper defendants to the claim.” My colleague Master Sugugasiri held in Lauraent-Hippolyte v, Blasse et al, 2018 ONSC 940 that “due diligence is not about information arriving at one’s doorstep—it is about actively taking steps outside the door.” In other words, simply resting on ones laurels is not enough. Doing nothing is clearly not being due diligent. Yet the motions Judge in Galota also commented that “a pre-discover of an adverse party is not required”.
[17] In this within matter, however, the Plaintiff really had to do very little investigation—if any at all. Certainly, a “pre-discovery’” as what would have been required for the Plaintiff to ought to have known, if not actually to have known, of the existence of the Third Parties, and that they likely should be added as party defendants to the main action…
[18] With respect to counsel for the Plaintiff, waiting until discovery in the matter was insufficient. It allowed, without called reason, time to slip away, and ultimately to slip past the limitation period.
[45] In the case if Neville-Laborde v. 3455 Glen Erin Apartments Inc., [2017] O.J. N 5211, Master Sugunasiri was dealing with facts that are similar to the this case before me.
[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.
[46] Master Sugunasiri further stated at para;26:
[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.)
[47] I agree with the responding party’s submissions that the issue becomes how long is too long to wait and take no action to move the case along. There is no evidence advanced by the moving party that they took any steps to determine if there were any other persons who ought to be made defendants.
[48] The moving party submitted that they were waiting for updated medicals, however, despite being asked over two years after the claim was issued, they did not have any updated medicals.
[49] The moving party stated that they were waiting on settlement discussions. There is no evidence that any settlement discussions were taking place only that the parties and the adjusters were prepared to have the discussions.
[50] There is no evidence that either of the named defendants even admitted to liability.
[51] Despite the lack of any real movement on the case, two years and eight months passed by with no real evidence that the matter was moving forward or could not move forward due to a valid reason.
[52] As Justice DiTomaso stated in Higgins v. Barrie (City) [211] O.J. No. 1598 at para. 38:
[38] The limitation period set out in the Limitations Act is not to be ignored. The statutory rights of Lawlor and Dol not be sued outside the two year limitation period should not be compromised in the absence of evidence of the Plaintiff’s reasonable efforts and due diligence (of which there is none) to identify these Proposed Defendants.
[53] In the case before me Sloot’s statutory rights not to be sued outside of the two year limitation period should not be compromised in the absence of evidence of the moving party that reasonable efforts and due diligence to identify this proposed defendant is before the court. There is no such evidence.
[54] The motion for leave to amend the statement of claim to add “John Sloot operating as Sloot’s Auto Body” as a defendant is dismissed.
[55] If costs cannot be agreed to counsel may submit written submissions no later than May 23, 2019.
The Honourable R. J. Harper
Released:
April 25, 2019
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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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