COURT FILE NO.: CV-17-585353

MOTION HEARD: 20200729

REASONS RELEASED: 20200929

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

AMANDA ALI

Plaintiff

• and-

THE CORPORATION OF THE CITY OF TORONTO

Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: B. Martin E-mail: bmartin@moodiemair.com -for the Plaintiff

A. Wilkinson E-mail: awilkinson@beardwinter.com -for the Proposed Defendant, VBN Paving Limited

REASONS RELEASED: September 29, 2020

Reasons For Endorsement

I. Introduction

[1] The Plaintiff brings a motion for leave to amend her Statement of Claim to add VBN Paving Limited (“VBN”) as a Defendant to this action.

[2] This motion follows a familiar pattern. The Plaintiff commenced a claim arising from a slip and fall on a sidewalk naming the City of Toronto (the “City”) as the only defendant. The Plaintiff now wishes to add VBN, the City’s winter maintenance contractor for the area in question, after the passage of the presumptive limitation period.

II. Background

[3] On February 15, 2017, the Plaintiff suffered a fractured ankle from a slip and fall accident on Birchlea Avenue near 31^st Street in Toronto. The Plaintiff provided the City with notice of the accident on February 24, 2017, including the area, time and details of her injuries.

[4] On March 1, 2017, an adjuster from the City requested additional information regarding the accident. In response, the Plaintiff provided the City with a statement on March 20, 2017.

[5] The Plaintiff commenced this action against the City by Statement of Claim issued on October 27, 2017 claiming damages of $1,000,000. The Statement of Claim was served on October 31, 2017.

[6] On February 16, 2018, the City’s adjuster advised Plaintiff’s counsel that this action was being assigned to counsel. The City delivered a Notice of Intent to Defend on February 20, 2018 and its Defence on October 31, 2019. The City served two Demands For Particulars which the Plaintiff answered.

[7] On July 24, 2019, the City’s counsel advised Plaintiff’s counsel that VBN had been contracted for snow clearing, sanding and salting of the sidewalks in the area of the slip and fall. The Plaintiff brought this motion on August 23, 2019.

[8] This motion was scheduled to proceed before me on March 18, 2020 but was adjourned due to the suspension of regular court operations as a result of the COVID-19 pandemic and re-scheduled during a telephone case conference on July 14, 2020.

III. The Law and Analysis

Pleadings Amendments Generally

[9] Rules 26.01 and 26.02 state:

“26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court.

[10] At any stage of a proceeding the court may add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment (Rule 5.04(2)).

[11] Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).

[12] The Court of Appeal summarized the law on leave to amend motions in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42:

“[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), revd (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

The non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, 2006 CanLII 5135 (C.A.), at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.” (State Farm at para. 25).

[13] It is unnecessary to consider whether the moving party is able to prove its amended claim and the court must read the amendments generously with allowances for drafting deficiencies assuming that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true (Plante at paras. 19-22).

Pleadings Amendments and the Limitations Act

[14] Sections 4 and 5 of the Limitations Act (Ontario) state:

“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.

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).

(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.”

[15] Where a limitation period with respect to a claim against a person has expired, the claim shall not be pursued by adding the person as a party to an existing proceeding (s. 21(1), Limitations Act).

[16] A claim is discovered on the earlier of two dates: when the plaintiff actually knew of its claim, or when a reasonable person, with the plaintiff's abilities and in its circumstances, would have discovered the claim (Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469 at para. 42). Section 5(2) of the Limitations Act creates a presumption that a person had actual knowledge of their claim on the day the acts or omissions took place under s. 5(1)(a), however this presumption does not apply to the inquiry under s.5(1)(b) which asks when the claim ought reasonably to have been discovered (Har Jo at para. 39; Fennell v. Deol, 2016 ONCA 249 at paras. 21 and 26).

[17] The parties agree that the proper approach was recently summarized by the Court of Appeal in Morrison v. Barzo, 2018 ONCA 979 at paras. 29-32:

“29 Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.

30 Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.

31 The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.

32 Second, the plaintiff 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 reading", and considered in the context of the claim: Mancinelli, at paras. 20 and 24.”

[18] In Mancinelli, the Court of Appeal provided guidance on the approach which the court should take on pleadings amendment motions involving discoverability issues:

i.) the motion judge is entitled to assess the record to determine, as a question of fact, if there is a reasonable explanation on proper evidence as to why the plaintiff could not have discovered its claim through the exercise of reasonable diligence. 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.) 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);

iii.) 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 (paras. 28 and 31).

Pleadings Amendments To Add Maintenance Contractors and the Present Case

[19] For the reasons that follow, I conclude that the Plaintiff should be denied leave to add VBN.

[20] A body of case law has developed in recent years with respect to pleadings amendment motions brought by plaintiffs seeking to add maintenance contractors to personal injury actions involving municipal or private property owners. This case law is not helpful to the Plaintiff in the present case.

[21] The Plaintiff submits that the failure to name VBN before the passage of the purported limitation period or to make any inquiries into the existence of a winter maintenance contractor does not prevent the court from granting leave. The Plaintiff relies on Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235 where leave was granted to add a facility services contractor after the passage of the two-year limitation period. In that case, Lauwers J. (as he then was) held that without a “trigger”, plaintiffs have no duty to inquire into the existence of possible additional defendants:

“[14] It is not unusual for possible defendants to emerge as a result of information received during the opposite party's document production or during the discovery process in an action. In the context of motor vehicle accidents, examinations for discovery are often delayed to permit injuries to ripen and perhaps resolve so later discovery of additional possible defendants is not so unusual.

[15] In the absence of an unexpected or unusual trigger, there is little to be gained by imposing judicially a free-standing duty on plaintiffs to write pro forma letters to defendants inquiring about the identity of other possible defendants under the rubric of due diligence in s. 5 of the Limitations Act, 2002. It would not be in the interests of justice to encourage an overly muscular development of the concept of pre-discovery due diligence. The burden of responding would immediately shift to defendants and add unproductive costs. The parties should not have to conduct a pre-discovery form of discovery. [citations omitted]” (Madrid at paras. 14-15)

[22] More recent case law has clarified that the principles in Madrid do not release plaintiffs or their counsel from their obligations to make any inquiries at all (Cote v. Ivanhoe Cambridge I Inc., 2018 ONSC 5588 at para. 33). There are circumstances where a plaintiff is expected to make inquiries or risk that the court may find that their failure to do so constitutes a lack of due diligence causing their motion to fail (Cote at paras 33 and 35; Laurent-Hippolyte v. Blasse, 2018 ONSC 940 at paras. 26-27). In recent cases, the courts have consistently held that requiring plaintiffs injured in slip and falls and other accidents involving snow and ice to inquire into the possible existence of winter maintenance contractors does not constitute a “pro forma” letter as described in Madrid. Further, a plaintiff’s failure to make these inquiries has been consistently found to constitute a lack of reasonable diligence ultimately leading to the denial of leave to amend.

[23] In this regard, Master Jolley held in Pashkiewich v. City of Toronto, 2017 ONSC 6921:

“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.”

[24] Master Sugunasiri expanded on what constitutes a “trigger” in Blasse:

“26 It may be that even with the necessary inquiries, the Plaintiff may not have known TWD's name. This, however, is not the issue. The Plaintiff has not provided any evidence of diligence. Her claim, via her lawyer's law clerk, is that the information did not come to her. Due diligence is not about information arriving on one's doorstep -- it is about actively taking steps outside the door.

27 In my view, and as per Justice Lauwers in Madrid supra, there are two triggers in this case that ought to have propelled the Plaintiff or counsel into action. The first is the clear existence of snow and ice on the relevant stretch of the 401. The Plaintiff acknowledges it via the law clerk's affiant in her motion materials, and it is clear from the motor vehicle accident report. If there is snow and ice, it is reasonable to expect that a plaintiff or her counsel would ask the known tortfeasor (HMQ in this case) whether or not there was a snow removal subcontractor. There are ample slip and fall, and motor vehicle cases naming third party snow removal contractors to make it reasonable in the present day to expect plaintiffs to make a simple inquiry. If no answer is given or the information is not forthcoming within the limitation period, at least the inquiry was made and would speak to diligence.”

[25] Master Josefo followed this reasoning in Khalid v. 22622351 Ontario Inc., 2018 ONSC 7681:

“13 …. 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.”

[26] In Cote, Charney J. held that since the plaintiff knew immediately after a slip and fall that there was a security guard at the mall where she fell, her claim against the security company was immediately discoverable and her failure to name the security company resulted from a lack of diligence:

“35 In this case, the evidence confirms that the plaintiff knew that there was a security guard on the premises immediately after she fell. Accordingly, the plaintiff's claim against Paragon was immediately discoverable. The reason Paragon was not named is because counsel did not consider whether a claim could be brought against the security guard or its employer under the Occupiers' Liability Act. The failure to add the security guard or its employer as a defendant was based on a lack of due diligence rather than the failure of Ivanhoe to "trigger" the inquiry by advising the plaintiff of the terms of its contract with Paragon.”

[27] Master Short reached a similar conclusion in Klein v. Stiller, 2015 ONSC 3705, holding that a plaintiff injured in a slip and fall at a condominium who sought to add the security company after the limitation period did not exercise sufficient due diligence since she met with the security company’s employee (the concierge) on the day of the accident (Klein at paras. 51-55).

[28] I adopt the reasoning and approach of the recent cases set out above and conclude that there is no reason to depart from these principles. As in these cases, neither the Plaintiff nor her counsel in the present case made any inquiries notwithstanding that the accident occurred on a City sidewalk where snow and ice were present. Similar to Blasse, I conclude that the presence of snow and ice on a City sidewalk was a trigger which should have caused the Plaintiff or her counsel to inquire into the existence of a winter maintenance contractor for the City. All the Plaintiff was required to do was send a letter or email or make a phone call. As the case law has established, requiring the Plaintiff to make this simple inquiry does not offend the rule against “pro forma” letters enunciated in Madrid. Accordingly, as there is no evidence of due diligence, no suggestion that any additional evidence is forthcoming and no reasonable explanation, there are no issues of credibility or fact requiring a trial or summary judgment motion. Consistent with Morrison and Mancinelli, I therefore conclude that the Plaintiff’s claim against VBN was immediately discoverable, the Plaintiff did not exercise sufficient due diligence, the limitation period has expired and the Plaintiff’s motion must fail.

[29] The Plaintiff submits that the City had an obligation to advise her of VBN’s existence as part of its ongoing obligation to disclose and produce relevant information. However, the Plaintiff was unable to refer me to any authority imposing such an obligation on a defendant and acknowledges that defendants have no free-standing pre-discovery duty of production. In fact, this would seem to offend the principle against a pre-discovery form of discovery rejected in Madrid (Madrid at para. 15).

[30] I also reject the Plaintiff’s argument that there is no guarantee that she would have received a response from the City had she made these inquires. The relevant issue is the absence of evidence demonstrating effort and diligence on the part of the Plaintiff, not speculation as to the likelihood of a response. As the courts have held in previous cases, had the Plaintiff asked and not received a response, the efforts would have been evidence of diligence.

[31] The Plaintiff also asserts that the line of cases canvassed above are distinguishable given that this action was commenced approximately 9 months after the accident while many of the actions in the cases were commenced on the eve of the expiration of the limitation period. In my view, this is not relevant to the court’s consideration of discoverability and due diligence and the Plaintiff has not referred me to any cases suggesting otherwise.

[32] The parties agree that prejudice does not apply to this motion on the basis of the Court of Appeal’s holding in Morrison that s. 21 of the Limitations Act prohibits the addition of a party to an action where a limitation period has expired whether or not there is prejudice to the defendant (Morrison at para. 22). Therefore, I have not considered actual prejudice on this motion.

III. Disposition and Costs

[33] Order to go dismissing the Plaintiff’s motion for leave to amend her Statement of Claim.

[34] Counsel advised that the parties agreed in advance that the unsuccessful party would pay $2,500 in costs. Counsel shall agree upon the timing of the Plaintiff’s payment.

Released: September 29, 2020

Master M.P. McGraw