Court File and Parties
COURT FILE NO.: CV-17-00579949
MOTION HEARD: 2019-07-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tigiest Mulugeta Tesema, Plaintiff
AND:
1580346 Ontario Ltd. o/a Freddie’s No Frills, 1239085 Ontario Inc. and Loblaw Properties Ltd., Defendants
BEFORE: Master B. McAfee
COUNSEL: Benjamin Witmer, Counsel for the Moving Party, the Plaintiff
Ian Mutter, Counsel for the Responding Party, the Proposed Defendant 8051933 Canada Corp. o/a Pro-Tech Inc.
HEARD: July 24, 2019
REASONS FOR DECISION
Nature of the Motion
[1] This is a motion brought by the plaintiff pursuant to Rules 5.04 and 26.01 of the Rules of Civil Procedure for an order granting leave to amend the statement of claim to add 8051933 Canada Corp. o/a Pro-Tech Inc. as a defendant. The proposed defendant is referred to below as proposed defendant or the various versions of the name of the proposed defendant as referred to by the parties at the relevant times.
[2] The proposed defendant opposes the motion.
[3] For the reasons that follow, leave is granted. The proposed defendant shall be at liberty to plead the expiry of a limitation period as a defence.
The Facts
[4] In this action the plaintiff alleges that she sustained injury as a result of a slip and fall that occurred on August 1, 2015, at the premises of the defendant 1580346 Ontario Ltd. o/a Freddie’s No Frills (Freddie’s No Frills).
[5] The plaintiff initially retained a paralegal. On August 11, 2015, the paralegal sent a notice letter to Freddie’s No Frills.
[6] On August 14, 2015, the insurer for Freddie’s No Frills requested various productions regarding the plaintiff’s claim.
[7] On July 26, 2017, the paralegal referred this matter to the office of the current lawyer for the plaintiff.
[8] On July 31, 2017, the plaintiff commenced the within action against Freddie’s No Frills, the landlord 1239085 Ontario Inc. (123 Ontario) and Loblaw Properties Ltd. (Loblaw).
[9] In October and November of 2017, the statement of claim was served on the defendants.
[10] In or about December 2017, a law clerk working in-house at the insurer of Freddie’s No Frills requested that the action be discontinued against Loblaw because Freddie’s No Frills “holds jurisdiction for the internal premises of the store.” A production request was also made. Plaintiff’s counsel delivered a notice of discontinuance against Loblaw.
[11] On January 17, 2018, Freddie’s No Frills delivered a statement of defence and jury notice.
[12] 123 Ontario has not delivered a defence.
[13] On February 1, 2018, counsel for Freddie’s No Frills sent an email to plaintiff’s counsel stating: “… at all material times, Protech Janitorial had been retained in relation to store maintenance. Please advise if you intend to amend your pleadings to add Protech as a party defendant. If you do not intend to do so, kindly provide your consent so that we may issue a third party claim as against same. Also, I can advise that my insured, No Frills, will admit jurisdiction over the area of the loss, so that you may discontinue your claim as against the landlord, 1230985 Ontario Inc.”
[14] On February 1, 2018, plaintiff’s counsel responded to the email from counsel for Freddie’s No Frills stating that the action will be discontinued against 123 Ontario and a motion to add Protech Janitorial would be brought. Plaintiff’s counsel requested that counsel for Freddie’s No Frills provide the full name and mailing address for Protech Janitorial.
[15] On February 1, 2018, counsel for Freddie’s No Frills responded to plaintiff’s counsel advising that he requested a copy of any contract with Protech that Freddie’s No Frills may have in its possession, or in the alternative, contact information.
[16] On February 1, 2018, plaintiff’s counsel requested that Cyberbahn conduct a corporate search for Protech Janitorial. An exact match could not be found.
[17] On September 12, 2018, plaintiff’s counsel requested that Cyberbahn perform a corporate search for Protech Janitorial. On September 13, 2018, the results of the request indicated that there appeared to be 400 companies with “Protech” somewhere in the name.
[18] On September 13, 2018, plaintiff’s counsel sent an email to counsel for Freddie’s No Frills advising that he could not find a match for Protech Janitorial and requesting the full name and mailing address for Protech Janitorial.
[19] On September 24, 2018, October 5, 2018, and October 25, 2018, plaintiff’s counsel followed up with counsel for Freddie’s No Frills.
[20] On October 25, 2018, the law clerk for counsel for Freddie’s No Frills advised that the information had been requested, they had not heard back, and they would follow up.
[21] On November 5, 2018, the law clerk for counsel for Freddie’s No Frills advised that she is still waiting for the mailing address for Protech.
[22] On November 14, 2018, and November 30, 2018, plaintiff’s counsel sent follow up emails to the law clerk for counsel for Freddie’s No Frills.
[23] On November 30, 2018, the law clerk for counsel for Freddie’s No Frills advised that she has still not heard back and had followed up and would call the client again.
[24] On December 5, 2018, plaintiff’s counsel followed up with the law clerk for counsel for Freddie’s No Frills with respect to the contact information for Protech Janitorial.
[25] On December 11, 2018, a motion to add John Doe Company was served on the defendants.
[26] On December 14, 2018, the law clerk for counsel for Freddie’s No Frills provided an address for Protech Janitorial Inc. by email. The email from the law clerk states: “We just located the contact for Protech Janitorial Inc. There has been a delay as the company moved locations. Please see below. (it is a residence) Protech Janitorial Inc. 3269 Oak Street Innisfil, ON L9S 2K8.”
[27] On December 17, 2018, plaintiff’s counsel requested that Cyberbahn conduct a corporate search for Protech Janitorial Inc. Cyberbahn was not able to locate the entity, notwithstanding trying different variations of the word Protech.
[28] On January 3, 2019, at the initial hearing of this motion, the presiding Master adjourned the motion to February 7, 2019. Contact information had now been provided for Protech Janitorial Inc. On January 3, 2019, Protech Janitorial Inc. was served with the motion record by mail to the address provided on December 14, 2018.
[29] On January 3, 2019, plaintiff’s counsel sent an email to the law clerk for counsel for Freddie’s No Frills requesting confirmation of the name of Protech Janitorial Inc. The law clerk responded confirming that the name provided was correct and suggested that plaintiff’s counsel conduct a different search.
[30] On January 4, 2019, plaintiff’s counsel received confirmation that the searches did not yield a result for Protech Janitorial Inc.
[31] On January 22, 2019, plaintiff’s counsel sent a letter to Protech Janitorial Inc. reminding them of the upcoming motion and suggesting that they forward a copy of the correspondence and motion record to their insurer.
[32] On January 22, 2019, plaintiff’s counsel sent a letter to counsel and the law clerk for Freddie’s No Frills advising that they still had no confirmation of the existence of Protech Janitorial Inc. or an address for service. A contact phone number was requested.
[33] On January 23, 2019, the law clerk confirmed to plaintiff’s counsel that she had spoken to the proposed defendant who confirmed the address and name. The law clerk provided a contact phone number for the proposed defendant.
[34] On January 24, 2019, plaintiff’s counsel telephoned the contact phone number for Protech Janitorial Inc. and spoke to a person who confirmed receipt of the motion record and confirmed that a copy of the motion record had been provided to the insurance company and/or agent.
[35] On February 7, 2019, no one appeared on the motion save for plaintiff’s counsel. I adjourned the motion to April 3, 2019, because the version of the proposed amended statement of claim provided to me on February 7, 2019, was not the same as the version in the motion record. The different version of the proposed amended pleading had not been provided to the parties or the proposed defendant.
[36] On February 7, 2019, plaintiff’s counsel sent a letter to Protech Janitorial Inc. advising of the new return date for the motion.
[37] On February 22, 2019, a lawyer wrote to plaintiff’s counsel advising that he had been retained by the insurer of Pro-Tech Janitorial and asked whether the motion had been granted.
[38] On February 22, 2019, plaintiff’s counsel responded to counsel for the proposed defendant advising that the motion was adjourned to April 3, 2019. Plaintiff’s counsel also requested the correct name of the proposed defendant.
[39] On March 24, 2019, plaintiff’s counsel followed up with counsel for the proposed defendant for the correct name of the proposed defendant.
[40] On March 27, 2019, counsel for the proposed defendant responded advising for the first time that the motion would be opposed and confirmed that the proper name of his client was 8051933 Canada Corp o/a Pro-Tech Inc.
[41] On March 28, 2019, the proposed defendant served a responding factum and book of authorities.
[42] On April 3, 2019, on consent, the motion was adjourned to June 7, 2019.
[43] On June 7, 2019, at the request of the plaintiff, the motion was adjourned to June 24, 2019, to allow the plaintiff an opportunity to file further evidence.
[44] On June 24, 2019, the motion proceeded before me.
Position of the Parties
[45] Having regard to the above facts, the plaintiff and proposed defendant agree that the plaintiff did not have actual notice of the existence of the proposed defendant until February 1, 2018, and that the defendant did not learn of a name for the proposed defendant until December 14, 2018. The full legal name of the proposed defendant was not provided until March 27, 2019.
[46] The proposed defendant does not take any issue with the plaintiff’s efforts to ascertain the identity and proper name of the proposed defendant following February 1, 2018.
[47] The plaintiff acknowledges that no steps were taken to investigate any potential claims against the proposed defendant prior to February 1, 2018.
[48] The proposed defendant argues that the motion ought to be dismissed on the basis that no steps were taken to investigate any potential claims against the proposed defendant within two years of the slip and fall.
[49] The plaintiff argues that the lack of steps within two years of the slip and fall is not fatal in the circumstances of this case. The plaintiff submits that leave ought to be granted to add the proposed defendant without prejudice to the proposed defendant pleading the expiry of the limitation period.
The Law and Analysis
[50] Sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the Act) provides in part as follows:
Discovery
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. 2002, c. 24, Sched. B, s. 4
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 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). 2002, c. 24, Sched. B, s. 5(1).
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).
[51] For the purposes of this motion, the presumption in s. 5(2) of the Act has been displaced. As noted above, the parties agree that the plaintiff did not have actual knowledge of the existence of the proposed defendant until February 1, 2018.
[52] Also as noted above, it is agreed that no steps were taken to ascertain the identity of the proposed defendant prior to February 1, 2018.
[53] The issue to be determined on this motion is whether the plaintiff has a reasonable explanation on proper evidence as to why the claim against the proposed defendant could not have been discovered through the exercise of reasonable diligence prior to February 1, 2018 or prior to two years before the bringing of this motion (Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 at para. 20, Morrison v. Barzo, 2018 ONCA 979 at para. 32.
[54] The evidentiary threshold on this motion is low. The plaintiff’s explanation should be given a generous, contextual reading (Mancinelli at para. 24).
[55] I disagree with the proposed defendant’s position that the lack of steps is fatal. As stated in Mancinelli at para. 30: 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. Instead, the reasonable steps a plaintiff ought to take is a relevant consideration in deciding when a claim is discoverable under s. 5(1)(b): Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35 (Ont. C.A.), at para. 23; Fennell v. Deol, 2016 ONCA 249, 265 A.C.W.S. (3d) 1029 (Ont.C.A.), at paras. 18, 24.
[56] Also as stated in Mancinelli at para 31: Where the issue on a motion to add a defendant 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: Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Ont. S.C.J.), at para. 45; Pepper, at para. 18.
[57] The affidavit of the paralegal (M. Laraia) filed in support of the motion provides an explanation for the lack of efforts. The paralegal deposes that it is his understanding that in-house grocery store maintenance departments are responsible for spill issues which occur inside the store and third party maintenance contractors would be hired for outside store issues such as snow removal and salting. As such no inquiries were made to determine whether any third party maintenance contractors existed with respect to in-store maintenance. There was no cross-examination on the affidavit.
[58] There was no evidence from the proposed defendant of reasonable steps that the plaintiff could have taken to ascertain the identity of the proposed defendant earlier.
[59] Having regard to the low evidentiary threshold, and giving the plaintiff’s evidence a generous, contextual reading, for the purpose of this motion the plaintiff has provided a reasonable explanation for the lack of efforts as set out in the affidavit of M. Laraia.
[60] In these circumstances, the issue of whether the plaintiff could have discovered the identity of the proposed defendant with due diligence and, if so, when the plaintiff could have done so are issues that require consideration on a summary judgment motion or at trial. Leave is granted to add the proposed defendant and the proposed defendant shall have the right to plead a limitation defence.
Costs
[61] The plaintiff was successful on the motion and is entitled to costs of the motion payable within 30 days. I am not satisfied that a different order would be more just (Rule 57.03(1)(a)). The plaintiff sought costs of the motion in the amount of $8,000.00. If the proposed defendant was successful on the motion, the proposed defendant sought costs of the motion in the amount of $3,702.63. No responding motion record was served. No cross-examinations took place. In my view the all-inclusive sum of $4,500.00 is a fair and reasonable amount that the proposed defendant could expect to pay for costs in all of the circumstances of this motion.
Summary of Order
[62] Order to go as follows:
Leave is granted to amend the statement of claim to add the proposed defendant 8051933 Canada Corp. o/a Pro-Tech Inc. in the form of the draft proposed amended statement of claim provided to the court at the return of the motion.
The proposed defendant 8051933 Canada Corp. o/a Pro-Tech Inc. shall be at liberty to plead the expiry of a limitation period as a defence.
Costs of the motion are fixed in the all-inclusive amount of $4,500.00, payable by the proposed defendant 8051933 Canada Corp. o/a Pro-Tech Inc. to the plaintiff within 30 days.
Master B. McAfee
Date: August 16, 2019