Court File and Parties

Court File No.: CV-17-73948 Date: 2020-12-23 Superior Court of Justice - Ontario

Re: Ibadete Vuniqi, Plaintiff And: Paramount Property Management, Somerset Towers Complex (Ottawa) Limited, Defendants And: 1323765 Ontario Inc. o/a TQ Landscapes, Respondent

Before: Madam Justice Heather J. Williams

Counsel: Erin Durant as agent for Kevin Butler, for the Plaintiff Ryan Kennedy, for the Defendants and Respondent

Heard: July 24, 2020 and December 14, 2020

Endorsement

H. J. Williams, J.

Overview

[1] The plaintiff seeks to amend the statement of claim to add the respondent, 1323765 Ontario Inc. o/a TQ Landscapes, as a defendant.

[2] TQ argues that, if the plaintiff had a claim against it, the claim is statute-barred.

The Key Facts

[3] The plaintiff pleads that she slipped on ice accumulation in the parking lot of the Ottawa apartment building where she lives and that she was injured in the fall.

[4] The plaintiff fell on December 5, 2016. Four days later, she retained a lawyer.

[5] On January 30, 2017, the plaintiff’s lawyer, Kevin Butler, wrote to the property manager of the plaintiff’s apartment building, Paramount Property Management. Mr. Butler informed Paramount that the plaintiff had been injured and put Paramount on notice of the plaintiff’s claim. In his letter, Mr. Butler also wrote, in bold type: “Please advise if there was a 3rd party contractor in charge of maintenance for the premises, and kindly forward their contact information so that we can put them on proper notice.”

[6] When Mr. Butler did not receive a reply to his January 30, 2017 letter, he telephoned Paramount and was told to fax the letter to Paramount. He did so on May 12, 2017.

[7] On May 15, 2017, Mr. Butler received a reply to his letter from a claims representative with Intact Insurance, Christy Roode. Ms. Roode said the January 30, 2017 letter had been referred to her and that Intact was investigating the incident. Ms. Roode said Intact would provide Mr. Butler with the results of its investigation when it was completed. Ms. Roode also requested information and documents relating to the plaintiff’s claim.

[8] In August 2017, Mr. Butler provided Ms. Roode with some of the information she had requested.

[9] Mr. Butler issued the statement of claim in this action on September 18, 2017 and served it the following day.

[10] On October 5, 2017, Ms. Roode requested a waiver in respect of Paramount’s statement of defence. Mr. Butler agreed to the waiver and said if it was not possible to settle the plaintiff’s action before the end of the year, he would ask the insurer to retain counsel. Mr. Butler informed Ms. Roode that he had only issued the claim because the insurer had been unresponsive.

[11] In April 2018, Mr. Butler informed Ms. Roode that the plaintiff had ongoing chronic back pain. Mr. Butler suggested that Intact retain counsel so that examinations for discovery could be scheduled, unless Intact was open to discussing a settlement “in the six-figure range”.

[12] On May 10, 2018, Mr. Butler provided Intact with 30 days to retain counsel on behalf of Paramount and to file a statement of defence. He requested a statement of defence by June 11, 2018.

[13] On July 18, 2018, Mr. Butler received a notice of intent to defend from Williams Litigation Lawyers, a law firm retained by Intact.

[14] Mr. Butler and Williams Litigation Lawyers discussed scheduling examinations for discovery for October 2018. The October dates were not confirmed. They then agreed to schedule the discoveries for March 11, 2019.

[15] Mr. Butler received Paramount’s affidavit of documents and productions on March 5, 2019. Paramount’s productions included a snow removal contract with the respondent, TQ Landscapes, which included an obligation to spread salt and sand and to remove ice build-up in certain areas of the exterior of the plaintiff’s apartment building.

[16] Paramount’s statement of defence was served March 11, 2019. Paramount pleaded that it had a contract with TQ Landscapes and that if the plaintiff had been injured, TQ Landscapes was partly or entirely responsible.

[17] Paramount was examined on March 11, 2019. Paramount’s witness said that Paramount was responsible for salting and sanding a certain walkway and entrance door at the plaintiff’s apartment building and that TQ was responsible for salting and sanding the parking lot and the driveway. The plaintiff was also examined briefly. Her examination was adjourned after she identified the precise location of her fall.

[18] Paramount issued a third-party claim against TQ in May 2019, but then discontinued it in October 2019.

[19] Also in October 2019, Paramount served a notice of change of lawyers. At that time, the in-house lawyers with Economical Insurance who now represent TQ assumed Paramount’s defence.

[20] On January 22, 2020, Mr. Butler informed Paramount’s lawyer that he would be amending the statement of claim to add TQ as a defendant.

[21] Mr. Butler served the motion record for this motion on June 8, 2020.

The Issue

[22] The issue on this motion is whether the plaintiff’s claim may be amended to add TQ as a defendant, or whether the limitation period for the claim has expired and the amendment is precluded by s. 21(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

The Position of the Plaintiff

[23] The plaintiff’s position is that she first became aware that Paramount had a contract with a snow removal company, and of the identity of the company, when Mr. Butler received Paramount’s affidavit of documents and productions in March 2019. She argues that she “discovered” her claim against TQ at that time.

[24] The plaintiff argues that the steps taken to ascertain whether Paramount had a contract with a snow removal company were reasonable.

[25] The plaintiff argues that her motion to add TQ as a third party was brought within two years [^1] of the March 2019 date of discovery of the claim and, as such, her claim against TQ is not statute-barred.

The Position of the Respondent, TQ Landscapes

[26] TQ argues that the plaintiff’s claim is statute-barred. It argues that, with the exercise of reasonable diligence, the plaintiff would have been able to discover her claim against TQ within the two-year presumptive limitation period under the Limitations Act, 2002. It argues that reasonable diligence was not exercised and, consequently, the plaintiff’s motion should be dismissed.

Analysis

The Legislative Framework

[27] Rule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for the addition of parties to a proceeding. It says that, 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 cannot be compensated for by costs or by an adjournment.

[28] Section 21(1) of the Limitations Act, 2002 provides that a party may not be added to a proceeding if a limitation period in respect to that party has expired.

[29] Sections 4 and 5 of the Limitations Act, 2002, reproduced below, provide that a claim will be statute-barred if it is not commenced within two years of the date it was “discovered”:

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.

Discovery is not limited by the presumptive limitation period

[30] TQ takes issue with the plaintiff’s attempt to add TQ as a defendant to her action after the expiration of the presumptive limitation period. [^2] TQ argues, in para. 2 of its factum, that the plaintiff failed to take steps to discover TQ’s identity before the expiration of the presumptive limitation period, that TQ’s identity was discoverable within that limitation period with the exercise of reasonable diligence, that the plaintiff failed to exercise reasonable diligence and that, as such, the plaintiff should not now be entitled to add TQ as a party.

[31] TQ has mischaracterized the issue. A party discovers a claim when they know of the four matters list in s. 5(1)(a) of the Limitations Act, 2002. There is no requirement that a party discover a claim within the two-year presumptive limitation period. Subject to the application of the ultimate limitation period in s. 15 of the Act, a party is only required to discover a claim at the time or before a reasonable person in the same circumstances would have first discovered it. That reasonable person is described in s. 5(1)(b) of the Act as a person “with the abilities and in the circumstances of the person with the claim.” Section 4 of the Act then provides that, once the claim has been discovered, a proceeding must be commenced within two years.

[32] The plaintiff must, however, rebut the presumption in s. 5(2) of the Act that she discovered her claim against TQ on the day of her fall. I turn now to consider that consideration.

Can the plaintiff rebut the presumption in s. 5(2) of the Limitations Act, 2002?

[33] To overcome the presumption in s. 5(2) of the Limitations Act, 2002, the plaintiff need prove only that they did not actually discover the claim on the date the events giving rise to the claim took place: Morrison v. Barzo, 2018 ONCA 979, at para. 31.

[34] I am satisfied that the plaintiff has overcome the s. 5(2) presumption that she knew of her claim against TQ on the day she fell. The plaintiff said she had never seen snow removal equipment bearing the name of a snow removal contractor. She had, however, seen Paramount employees shoveling snow in front of the apartment building. Paramount’s Occurrence Report supports the plaintiff’s evidence that when she reported her fall to Paramount the day she fell, Paramount employees were dispatched to clear the area. TQ cross-examined the plaintiff on this evidence and had an opportunity to file its own evidence in response. Having considered the cross-examination transcript and TQ’s evidence, I find that the plaintiff was not aware of TQ’s involvement or identity the day she fell.

[35] If the plaintiff had known of TQ’s involvement or identity, it is reasonable to infer that she would have passed on this information to her lawyer, who would not then have asked Paramount, in his letter of January 30, 2017, if it had a snow removal contractor. It is more likely that the plaintiff’s lawyer, in his letter to Paramount, then would have been seeking confirmation of the identity of the snow removal contractor or would have written a letter directly to TQ, putting it on notice of the plaintiff’s claim.

When did the plaintiff know, subjectively, that she had a claim against TQ?

[36] On a motion such as this, the court must make a finding as to when the plaintiff first knew the elements of a claim set out in s. 5(1)(a) of the Limitations Act, 2002: Morrison v. Barzo, at para. 29.

[37] The plaintiff must lead evidence as to the date the claim was actually discovered. This evidence can then be tested and contradicted by the putative defendant. The s. 5(2) presumption is then displaced by the court’s finding as to when the plaintiff subjectively knew that she had a claim against the defendant: Morrison v. Barzo, at para. 31.

[38] I accept the plaintiff’s evidence that she did not learn of the involvement or identity of TQ until the day she was examined for discovery, March 11, 2019.

[39] I have already noted that the plaintiff was cross-examined on this evidence.

[40] There is no evidence that any information about the involvement of a snow removal contractor came to the attention of the plaintiff or her lawyer, Mr. Butler, before Mr. Butler received Paramount’s affidavit of documents and productions on March 5, 2019. TQ does not suggest otherwise. The thrust of TQ’s argument in defence of the plaintiff’s motion is that Mr. Butler should have taken additional steps to discover the plaintiff’s claim against TQ earlier, not that the plaintiff or Mr. Butler in fact discovered the claim earlier.

[41] I find that the plaintiff, through her lawyer Mr. Butler, knew, as of March 5, 2019, that she had a claim against TQ. Mr. Butler received Paramount’s productions that day. The productions included the contract between Paramount and TQ.

[42] Interestingly, there is evidence suggesting that, as late as March 11, 2019, the lawyers retained to defend Paramount were unsure as to whether the plaintiff had a claim against TQ. Paramount’s contract with TQ provided that Paramount was responsible for snow removal in specified areas outside the plaintiff’s apartment building and that TQ was responsible for all other areas. Paramount’s lawyer questioned the plaintiff about the location of her fall on March 11, 2019, before adjourning her examination for discovery so that a claim could be started against TQ.

Was the date of the plaintiff’s subjective knowledge objectively reasonable?

[43] Having found that the plaintiff has overcome the presumption in s. 5(2) of the Limitations Act, 2002 and that, subjectively, she did not discover her claim against TQ until March 5, 2019, I must now consider whether the reasonable person described in s. 5(1)(b) of the Limitations Act, 2002 would have discovered the claim against TQ earlier than the plaintiff did.

[44] As the Court of Appeal stated in Morrison v Barzo, at para. 30, if I conclude that the reasonable person would have discovered the claim before the plaintiff discovered it, I must specify when the reasonable person would have discovered the claim and provide the basis for the conclusion:

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. [Emphasis added.] 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. [internal citation omitted].

[45] Key to the case before me is not so much whether the s. 5(1)(b) reasonable person would have discovered the claim against TQ before the plaintiff discovered it on March 5, 2019, but whether the reasonable person would have discovered it before June 8, 2018. This is because the plaintiff served the notice of motion to add TQ as a defendant on June 8, 2020. [^3] Working backwards, if the s. 5(1)(b) reasonable person would have discovered the claim before June 8, 2018, the plaintiff’s claim against TQ will be statute-barred, because a proceeding must be commenced within two years of the date the claim first reasonably could have been discovered.

[46] TQ argued that the plaintiff and her lawyer could have taken a number of “reasonable and very simple steps” that would have enabled them to find out earlier that there was a winter maintenance contractor at the plaintiff’s apartment building and to identify it. TQ argued that the plaintiff or her lawyer could have asked Paramount, on the telephone, whether it had a snow removal contractor and that Mr. Butler could have asked Paramount’s insurer’s claims representative, Ms. Roode, on one of the many occasions he communicated with her. TQ also argued that although it is true that Paramount never denied liability for the plaintiff’s accident or indicated to Mr. Butler before March 11, 2019 that it would be seeking contribution or indemnity from another party, Paramount never admitted liability. TQ argued that by doing nothing beyond sending his January 30, 2017 letter, Mr. Butler did not meet the reasonable diligence test.

[47] TQ did not, however, offer any evidence that would enable me to determine when the reasonable person in the plaintiff’s position first would have discovered the claim against TQ. There was no evidence, for example, that Paramount, having sent Mr. Butler’s January 30, 2017 letter to its insurer, subsequently would have provided Mr. Butler or the plaintiff with TQ’s identity or information about the scope of TQ’s responsibilities, if they had asked. There was no evidence to explain why Ms. Roode failed to answer Mr. Butler’s question about whether Paramount had a snow removal contractor. There was no evidence about when Ms. Roode first became aware of Paramount contract with TQ. I have already mentioned that there was evidence suggesting that Paramount was unsure, before the plaintiff was examined for discovery on March 11, 2019, whether the plaintiff fell in an area TQ was contractually obliged to maintain.

[48] Based on the evidence before me, I am unable to determine the date of reasonable discoverability of the plaintiff’s claim against TQ.

The evidence on the motion

[49] I wish to make two comments about the evidence on this motion:

1. I accept TQ’s argument that Mr. Butler should have sworn an affidavit in support of this motion. Instead, a lawyer colleague, Tatyana Loeffler-Vulpe, swore two affidavits, both of which included information Mr. Butler provided to her, not all of which could be characterized as non-controversial. To the extent that Ms. Loeffler-Vulpe’s evidence related to documents that were sent or received or was corroborated by attached exhibits or the evidence of the plaintiff or TQ, I have considered it. Otherwise, I have not relied on it. The evidence I did not consider included Ms. Loeffler-Vulpe’s evidence in respect of conversations involving Mr. Butler or Mr. Butler’s state of mind, I have not relied upon it: Mapletoft v. Christopher J. Service, 2008 ONSC 6935 at para. 15.

2. I have not relied on the plaintiff’s evidence that Paramount’s lawyer apologized to her on March 11, 2019 for being required to adjourn her examination for discovery because he had failed to inform Mr. Butler about TQ. I have considered the plaintiff’s cross-examination on this point and while I accept that the lawyer apologized I am unsure about his explanation for the apology. Mr. Butler was present for the conversation between Paramount’s lawyer and the plaintiff. An affidavit from Mr. Butler on this point would have been helpful.

Conclusion

[50] As I have found that the plaintiff did not discover that she had a claim against TQ until March 5, 2019 but I am unable to make a finding with respect to when a reasonable person in the same position would have discovered the claim, the appropriate result is to order that the plaintiff may amend her claim to add TQ as a defendant and that TQ may plead a limitation period defence: Morrison v. Barzo, at para. 30.

Costs

[51] At the conclusion of the hearing, the parties provided me with an indication of the costs they would be seeking in the event they were successful on the motion.

[52] Ms. Durant said the plaintiff’s total costs on a partial indemnity basis are approximately $11,000.00, all-inclusive, which includes fees of $1,000.00 attributable to an adjournment of the motion attributable to an affidavit filed by the plaintiff.

[53] Mr. Kennedy said his total costs are approximately $7,000.00 with fees of approximately $1,700.00 attributable to the adjournment. Mr. Kennedy’s $7,000.00 included disbursements of $809.80. Mr. Kennedy’s costs did not include HST on the fees.

[54] Mr. Butler said there may be issues relevant to costs which would make post-decision costs submissions appropriate.

[55] The parties are urged to settle costs. If they are unable to do so, the plaintiff may make brief submissions no later than January 8, 2021. The respondent may make brief responding submissions within 14 days of receipt of the plaintiff’s submissions. The plaintiff may then but is not encouraged to make very brief reply submissions within seven days.

Released: December 23, 2020

Footnotes

[^1]: Two years being the basic limitation period for claims under s. 4 of the Limitations Act, 2002. [^2]: The presumptive limitation period arises from sections 4, 5(1) and 5(2) of the Limitations Act, 2002, which, read together, provide that, unless the contrary is proven, a claim is discovered on the day on which the act or omission giving rise to the claim took place and an action may not be started after the second anniversary of that day. In the plaintiff’s case, the presumptive limitation period would expire December 5, 2018, two years after her fall. [^3]: The plaintiff’s rights crystallize on the date of service of the notice of motion in which they seek to add the party. (Filipino Centre Toronto v. Portugal, 2010 ONSC 956 (Div. Ct.), at para. 34).