Court File and Parties
Court File No.: CV-16-551840 Motion Heard: March 11, 2019 Superior Court of Justice - Ontario
Re: Nikolova et al. And: JR Property Services Corp. et al.
Before: Master Abrams
Counsel: T. McAvoy and C. Vasan, for the Plaintiffs E. Turkienicz, for Paragon Protection Ltd.
Heard: March 11, 2019
Reasons for Decision
[1]
Introduction
The plaintiffs seek leave to amend their statement of claim to add Paragon Protection Ltd. (“Paragon”) as a defendant to this action.
[2]
Background
The plaintiffs bring claim in respect of an alleged slip and fall, on the part of Nadya Nikolova, at Vaughan Mills Shopping Centre (“Vaughan Mills”). Ms. Nikolova alleges having slipped and fallen at Vaughan Mills on January 24/15. After the alleged fall, a Paragon security guard who was on duty at Vaughan Mills, and dressed in a Paragon uniform, attended to Ms. Nikolova and took photographs.
3The security guard’s report indicates that the security guard stayed with Ms. Nikolova for approximately 45 minutes, i.e. until emergency medical services arrived and transported Ms. Nikolova to the hospital.
4On February 15/15, predecessor counsel for the plaintiffs wrote to Ivanhoe Cambridge II Inc., the owner of Vaughan Mills, to report a potential claim. A request was made for a copy of the security guard’s incident report and for copies of witness statements and any photographs taken.
5On March 5/15, then counsel for the plaintiffs received correspondence from the owner’s insurer advising that all accidents that occurred in or around where it was that Ms. Nikolova was said to have fallen were the responsibility of JR Property Services Corp. (JR) and SEJJ Environmental Solutions, pursuant to a Hold Harmless Agreement. Thereafter, the adjusters on behalf of JR sent a letter denying liability for the incident and provided particulars of when JR had salted the Vaughan Mills parking lots and sidewalks. No finger was pointed at any other person or entity as to potential liability.
6An action was then commenced against the owner of Vaughan Mills and the two companies identified by the owner’s insurer as being responsible for “all accidents”. In the owner’s and JR’s joint statement of defence, an admission was made that JR had contracted with the owner “to carry out snow removal services at…Vaughan Mills…” on the date of Ms. Nikolova’s alleged fall. Though they denied responsibility (the denial extending to those for whom they are at law responsible), no alternative tortfeasors were identified by them.
7After investigating further, and with the consent of the owner and JR, the plaintiffs let SEJJ out of the action in September of 2017.
8In November of 2017, the plaintiffs received a draft affidavit of documents from the owner of Vaughan Mills. Listed were the incident report and plaintiffs’ counsel’s notice letter, only. No document suggesting the involvement of anyone but the owner and JR was disclosed.
9On the date scheduled for the examinations for discovery, January 15/18, an amended affidavit of documents was served by the owner, listing— for the first time —a security contract between the owner and Paragon, with a provision that Paragon was responsible for “monitor[ing] and call[ing] for salting/snow removal as required and [for] monitor[ing] the weather for safety hazards”. That notwithstanding, the evidence of the owner’s representative on his examination for discovery was that he was not aware of any other entity, other than JR, that “…was responsible for…winter maintenance, salting, sanding, [and] that sort of thing [emphasis added]” (Q. 20). He advised that icy conditions in the Vaughan Mills lot were brought to the attention of Paragon and were reported to JR. His evidence as to Paragon’s role was somewhat ambiguous; but, that notwithstanding, it is clear that it was on January 15/18 that the plaintiffs learned, definitively, that Paragon could be said to have some responsibility relating to ice and snow at Vaughan Mills.
10In May of 2018, a mediation took place herein. In its mediation memorandum, the defendants took the position, clearly and unequivocally and, for the first time, that Paragon is a necessary party to the action. Notice of a potential claim was thus given to Paragon, by the plaintiffs, by way of letter sent October 16/18. This motion was brought shortly thereafter (and within two years of January 15/18).
[11]
Analysis
“The evidentiary burden on [plaintiffs] seeking to add a defendant after the apparent expiry of a limitation period [as here] is two-fold. First, the plaintiff[s] must overcome the presumption in s. 5(2) [of the Limitations Act] that [they] knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim was actually discovered. …To overcome the presumption, the plaintiff[s need] to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. …Second, the plaintiff[s] must offer a ‘reasonable explanation on proper evidence’ as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff[s’] explanation should be given a “generous [contextual] reading”, and [be] considered in the context of the claim” (Morrison v. Barzo, 2018 ONCA 979, at paras. 31 and 32, and Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, at para. 27).
12To discover a claim, the plaintiffs must only have sufficient facts upon which to support an allegation that there is a cause of action. Knowledge as to the existence of a potential party is not, in and of itself, enough to start the clock. There must be knowledge of some potential act or omission on the part of the party that caused or contributed to the plaintiffs’ damages. “The discovery of a tortfeasor involves more than the identity of one who may be liable. It involves the discovery of his or her acts, or omissions, which constitute liability” (see: Wilkinson v. Braithwaite, [2011] O.J. No. 1714, at para. 32 and Coutanche v. Napoleon Delicatessen, 2004 CarswellOnt 2655, at para. 22, citing from Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.)).
13I agree with plaintiffs’ counsel that this case is similar to that of Galota v. Festival Hall Developments Limited (2016 ONCA 585), as relates to what was done and what might have been done. “Under s. 5(1)(b) [of the Limitations Act], the plaintiff[s] ‘first ought to have known’ of the claim when the plaintiff[s have] enough evidence or information to support an allegation of negligence, including facts about an act or omission that may give rise to a cause of action against a possible tortfeasor” (at para. 15). The fact of Paragon’s involvement in attending to Ms. Nikolova and the fact of its maintenance of a presence on site were not sufficient to suggest its involvement in outdoor maintenance at Vaughan Mills. And even if more could have or, even, should have been done by the plaintiffs in investigating their claim, this is “not a stand-alone or independent ground to find a claim out of time” (at para. 23).
14And while Paragon draws comparisons with Cote v. Ivanhoe Cambridge I Inc./Ivanhoe Cambridge 18 Inc., 2018 ONSC 5588, and I understand why it does, there is one distinguishing factor in the case at bar. Whereas in Cote “there was no suggestion…that any other party was responsible for maintenance at the mall” (at para. 20) and no suggestion by the company responsible for janitorial/cleaning services that anyone else might be responsible for maintenance and cleaning, here the finger was pointed directly, and without exception, at JR and SEJJ. Had the owner simply denied liability or indicated that the list of those with potential responsibility might extend beyond the two entities named (or had JR made any reference to it having been dispatched to do the salting that it alleges having done), “the duty to make further inquiries would have been triggered” (Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235, at para. 16). While it is true that former counsel for the plaintiffs may not have considered whether a claim could be brought against Paragon under the Occupiers’ Liability Act and, perhaps, with the benefit of hindsight ought to have/could have done so, it is also true that his gaze was averted because he was told that JR and SEJJ were responsible for all accidents at Vaughan Mills and because there was nothing in the Paragon incident report to suggest any involvement of Paragon, save as being involved in a “first aid call”.
15I think that, here, “there is an issue of fact or of credibility on the discoverability allegation” (Wong v. Adler, at para. 45, aff’d [2005] O.J. 1399 (Div. Ct.)), with the plaintiffs having advanced at least “…a reasonable explanation as to due diligence…such as to raise a triable issue” (Wakelin v. Gourley (2005), 76 O.R. (3d) 272 (S.C.J.), at para. 15, aff’d [2006] O.J. No. 1442 (Div. Ct.) ). And with the threshold on a motion such as this being low, I think it appropriate that leave to amend to add Paragon as a party be granted (and it is)--with Paragon having the right to raise all defences, including a limitations defence. On the issue of prejudice to Paragon, I note that the person on duty at Vaughan Mills on the day of Ms. Nikolova’s alleged fall is the same person who prepared the incident report on which the parties rely and the same person who had sufficient recall as to be able to swear a January 22/19 affidavit in response to the plaintiffs’ motion.
[16]
Costs
If counsel wish me to address the issue of costs, I am to be so notified by July 31/19.
June 7/19