COURT FILE NO.: CV-20-00640836-0000
DATE: 2022 05 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JORGE HENRIQUEZ-NUNEZ, Plaintiff
- and -
WYNN’S PROPERTY MAINTENANCE LTD., 1519958 ONTARIO LIMITED, and KNIGHTSTONE CAPITAL MANAGEMENT INC. Defendants
BEFORE: Associate Justice Jay Josefo
COUNSEL: M. Barber, for Mr. Jorge Henriquez-Nunez (moving party)
M. Kealy, for Wynn’s Property Maintenance Ltd. (responding party)
R. MacDonald, for 1519958 Ontario Limited, and Knightstone Capital Management Inc. (responding party seeking costs)
DATE HEARD: May 10, 2022 (by videoconference)
DATE OF DECISION: May 20, 2022, date amended: May 30, 2022
AMENDED ENDORSEMENT
[1] It may be trite, yet remains true, that suing the right defendant(s), within the time limit, is an important task of the plaintiff’s lawyer. Not suing parties with nothing to do with the case or, when their non-involvement ought to be obvious, releasing such parties at the earliest opportunity, is an equally important task. This within motion arises out of both of these truisms.
ISSUES
[2] Pursuant to my January 21, 2022 Endorsement, the “Long Motion” (“LM”) in this matter was heard May 10, 2022. This motion, arising out of an April 15, 2018 slip and fall event in a shopping plaza, involves:
• The plaintiff, Mr. Jorge Henriquez-Nunez (“plaintiff”), who seeks to amend the statement of claim issued May 11, 2020 to, inter alia, add new defendant Wynn’s Property Maintenance Ltd (“Wynn’s). Wynn’s opposes being added, asserting that plaintiff is out of time to add it as a defendant to the within action.
• Defendants 1519958 Ontario Limited (“numbered company”), and Knightstone Capital Management Inc., which entities seek costs from the plaintiff for having been, in their view, wrongly proposed as new defendants in the within action. Plaintiff abandoned its motion to add these defendants. Plaintiff blames “confusion” between the numbered company and Knightstone (at times, collectively as “these responding parties”) which, counsel for plaintiff asserts, was only belatedly explained with the delivery of responding materials. Accordingly, plaintiff denies any entitlement to costs or, alternatively, seeks to restrict costs for these responding parties to the date of the responding affidavit. Plaintiff also asserts that the costs sought by these responding parties is excessive.
RELEVANT FACTS LEADING TO THE MOTION
I. Adding Wynn’s as a defendant:
[3] The chronology of this matter is in the main described in the September 22, 2021 affidavit of plaintiff’s lawyer Mr. Fawad Siddiqui and is, for the most part, uncontested. I summarize what I find to be relevant. My observations are also occasionally added to the following chronological narrative describing what led to this motion.
[4] On April 15, 2018, the plaintiff, in the parking lot of a shopping plaza in Toronto called “McCowan Square”, which contained a grocery store named Freshco LTD., (“Freshco”), a drugstore, and a branch of a bank, allegedly slipped and fell.
[5] On October 12, 2018, “notice letters” were sent to Freshco and Crombie REIT, whom Mr. Siddiqui identified as the “alleged occupier and owner of the property where the plaintiff suffered his fall (paragraph 3 of his affidavit)”.
[6] The affidavit is silent about what occurred in the prior nearly six months between when the plaintiff fell and when such notice letters were sent. Yet in submissions when the motion was argued, Mr. Barber stated that the plaintiff declined Mr Siddiqui’s offer to conduct a property search to identify the purportedly responsible parties. Instead, the plaintiff, as Mr. Barber submitted was agreed to by Mr. Siddiqui, returned to the shopping plaza to attempt to identify the responsible parties for his lawyer. Mr. Siddiqui also testified to this at his cross-examination.
[7] On February 4, 2019, Freshco’s adjuster wrote to Mr. Siddiqui, identifying Wynn’s, and suggesting a meeting whereby the adjuster would interview the plaintiff. The February 4, 2019 email from the adjuster reads as follows:
A copy of this email has been forwarded to the adjuster representing Wynn's Property Maintenance. The above noted adjuster wished to know about the mechanics of the fall and injuries to your client. The best way to know about the above is to attend the meeting on Feb 6, 2019, which involves interviewing your client. Please let us know that your client will be there on Feb 6. We look forward to your confirmation. Best Regards,
[8] On April 2, 2019, the plaintiff’s interview with the adjuster for Freshco occurred.
[9] On July 18, 2019, a different adjuster wrote to Mr. Siddiqui, confirming that they investigated the April 15, 2018 incident for Wynn’s. The adjuster informed plaintiff’s counsel that their investigation determined that Wynn’s had “no liability for any injuries [the plaintiff] sustained in this incident”.
[10] On August 1, 2019, Mr. Siddiqui responded to that adjuster, writing the following:
Further to your correspondence dated July 18, 2019, we kindly ask that you provide our office with a copy of the Winter Maintenance Contract. This will allow us to do our diligence in assessing liability of the parties involved. If not produced at this time, then we ask that you take reasonable efforts to preserve same, as we intend to name your insured as a Defendant in a claim and it will therefore need to be disclosed in future litigation [emphasis added].
[11] The adjuster never responded to this letter. At cross-examination, the adjuster confirmed that there was no intention to send the Winter Maintenance Contract, as their position was that Wynn’s had no liability.
[12] On March 16, 2020, limitation periods were suspended pursuant to Regulation 73/20 of the Emergency Management and Civil Protection Act.
[13] On May 11, 2020, the within claim was issued. Defendants were Freshco, Sobeys Inc., Empire Company Limited and Crombie REIT. Contrary to the above-referenced August 1, 2019 correspondence of Mr. Siddiqui to Wynn’s adjuster, Wynn’s was not then named as a defendant.
[14] On May 26, 2020, then counsel for Freshco sent Mr. Siddiqui a copy of the Winter Maintenance Contract. Counsel for Freshco also identified the numbered company, Knightstone Capital Management, as well as Wynn’s, as “three further target defendants you should be suing on your client’s behalf”. Notwithstanding this correspondence, however, as can be seen from the continuing chronology, nothing happened for over six months. There was no prompt pursuit, to be sure, of these additional “targets” identified for plaintiff’s counsel.
[15] On June 9, 2020, Freshco served its Affidavit of Documents, unsworn, and its Schedule “A” productions. Freshco’s counsel also then informed Mr. Siddiqui that he needed to amend to correct misnomer in how the defendants were identified (Sobeys Inc., is really Sobeys Capital Incorporated, and Crombie REIT should be Crombie Limited Partnership).
[16] On December 17, 2020, Mr. Barber wrote to counsel for Freshco seeking his position on attending a motion and asking for his preferred dates in March 2021.
[17] On December 18, 2020, counsel for Freshco responded that he takes no position regarding plaintiff’s motion to amend the statement of claim.
[18] Also on December 18, 2020, counsel for plaintiff’s office sought a motion date for a “short motion”. The actual requisition form is not in evidence. Several further emails were sent in January 2021. On February 2, 2021, Civil Motions Scheduling responded with a date of May 27, 2021, for a ten-minute motion that day.
[19] I reproduce the first part of the Notice of Motion dated February 10, 2021:
THE MOTION IS FOR:
An Order granting leave to Amend the Statement of Claim, naming the Defendant, 2449595 ONTARIO INC. o/a McCOWAN & ELLESMERE FRESHCO, in place of FRESHCO LTD, in the form attached as Schedule "A" to the Order;
An Order granting leave to Amend the Statement of Claim, naming the Defendant, SOBEYS CAPITAL INCORPORATED, in place of SOBEYS INC ., in the form attached as Schedule "A" to the Order;
An Order granting leave to Amend the Statement of Claim, naming the Defendant, CROMBIE LIMITED PARTNERSHIP, in place of CROMBIE REIT, in the form attached as Schedule "A" to the Order;
An Order granting leave to Amend the Statement of Claim, adding the proposed Defendants, 1519958 ONTARIO LIMITED o/a McCOWAN SQUARE, KNIGHTSTONE CAPITAL MANAGEMENT INC. and WYNN'S PROPERTY MAINTENANCE LTD, in the form attached as Schedule "A" to the Order;
Costs of this motion, if opposed; and
Such further and other relief as this Honourable Court shall deem just and appropriate.
[20] The first three items pertain to the unopposed corrections of misnomer. Number four, however, involves three new parties, to date not parties to the action. Thus, given the addition of item number four, in my view, unilaterally scheduling this motion for only ten minutes, without first checking counsel’s availability for the return date, is unusual, to say the least.
[21] On February 11, 2021, the Notice of Motion (but no motion record) was served by mail on, inter alia, the numbered company, Knightstone, and Wynn’s. Thus, pursuant to Rule 16.06(2), the earliest date when these newly proposed defendants would have had notice of the motion is five weekdays after mailing, not counting the day of mailing. That would be February 18, 2021.
[22] Mr. Siddiqui purported to explain in his September 22, 2021 affidavit why Wynn’s was not named a defendant at the outset:
I do verily believe that it was not reasonable for the Plaintiff to contemplate litigation against the proposed Defendant, WYNN'S PROPERTY MAINTENANCE based on a solitary, ambiguous email and without benefit of the winter maintenance contract to explain the nature of the relationship between WYNN'S PROPERTY MAINTENANCE and FRESHCO LTD.
I do verily believe that our office made reasonable efforts to obtain a copy of the winter maintenance contract as between the Defendant, FRESHCO LTD. and the proposed Defendant, WYNN’S PROPERTY MAINTENANCE, in order to assess the potential liability of the proposed Defendant WYNN's PROPERTY MAINTENANCE. However, there was zero response to my inquiries and in fact, I did not receive a copy of said winter maintenance contract until May 26, 2020.
I do verily believe that under the circumstances, the date that the Plaintiff became aware that the proposed Defendant, WYNN'S PROPERTY MAINTENANCE was the maintenance contractor for the subject premises on the date of loss was when the winter maintenance contract was finally received on May 26, 2021, via a letter from Mr. T.H. Percival, of Percival Law, counsel for the Defendants, FRESHCO LTD And SOBEYS INC. [the date is actually May 26, 2020, not 2021]
In the alternative, I do verily believe that the earliest possible date that the Plaintiff could have been aware of any potential liability with respect to the proposed Defendant, WYNN'S PROPERTY MAINTENANCE, was July 18, 2019, when the adjuster for said proposed Defendant revealed via correspondence (attached at Exhibit 3) the existence of a winter maintenance contract. However, the same correspondence stated that following an investigation "no liability would rest with Wynn's", which confuses the issue of liability.
[23] Accordingly, Mr. Siddiqui asserts in his affidavit (as echoed by Mr. Barber in his submissions) that the plaintiff’s claim against Wynn’s was not discoverable until receipt of the Winter Maintenance Contract on May 26, 2020 or, alternatively, on July 18, 2019, when Wynn’s adjuster wrote to deny liability. In his view, the two year time limit did not begin to run until either of those dates, meaning that the plaintiff was in time on February 11, 2021 when it served the within motion seeking to add Wynn’s as a defendant.
[24] Yet his affidavit testimony, I find, contradicts with and fails to address his earlier, above-excerpted August 1, 2019 letter to Wynn’s adjuster, wherein he categorically stated his intentions: “…we intend to name your insured as a Defendant in a claim.” That letter evidenced no “confusion” in that regard as was after-the-fact asserted at paragraph 13 of Mr. Siddiqui’s September 22, 2021 affidavit. Nor did his letter express any hesitation about pursuing Wynn’s.
[25] Counsel for plaintiff and Wynn’s agree that the limitation period, extended by Regulation beyond the ordinary two years from the April 15, 2018 accident date, leaving aside any discoverability argument, ended October 15, 2020. In other words, the Regulation provided an additional six months of time.
II. Costs Issue: costs sought by 1519958 Ontario Limited (“numbered company”), and Knightstone Capital Management Inc., once plaintiff abandoned its motion to add these parties as defendants
[26] In addition to the above chronology, for this separate issue I reference correspondence sent between Mr. Macdonald, counsel for these responding parties, and Mr. Barber.
[27] The initial March 1, 2021 correspondence from Mr. Macdonald, sent after these responding parties received the Notice of Motion (yet not the motion record) informed plaintiff’s counsel that:
“…Knightstone transferred ownership of the property to Crombie Property Holdings Limited on June 27, 2017, nearly 10 months before your client's alleged date of loss. When it transferred ownership of the property, Knightstone ceased to have any connection with the property at all. It did not possess or control the property; nor was it responsible for any activities on the property, or its maintenance. In short, it was not an "occupier", as defined by the Occupier's Liability Act, and cannot otherwise be responsible to your client at law.”
[28] Plaintiff was asked to confirm that it would not proceed against these parties, failing which costs would be sought.
[29] On May 13, 2021, Mr. Barber sought a copy of the title search documentation “…which verifies that Knightstone transferred ownership of the subject property to Crombie…on June 27, 2017”. That same day, Mr. Macdonald sent this publicly available document to plaintiff’s counsel. He subsequently answered additional questions of counsel for plaintiff, reiterating that Knightstone was no longer interested in the property following its sale.
[30] Yet only after these responding parties delivered their responding record, including the October 4, 2021 affidavit of David Lehberg, did plaintiff agree to let them out of the action.
[31] All counsel in this matter were before me on January 21, 2022. On that day we identified the two issues identified herein, and we scheduled this LM. At that time, I urged the parties to settle this issue of costs. Yet such did not occur. On the return of the motion, counsel for plaintiff confirmed he did not obtain instructions to make any offer, notwithstanding Rule 37.09(3).
DISCOVERABILITY – when was the claim discoverable against Wynn’s?
Statutory Provisions:
[32] This is yet another case which demonstrates the “push-pull” or legal tension between sub-rules 5.04 (1) & (2) and Rule 26.01 of the Rules of Civil Procedure, and sections 4, 5, and 21(1) of the Limitations Act, 2002. For context, I reproduce these provisions which underpin the case-law:
Rules of Civil Procedure:
5.04(1) No proceeding shall be defeated by reason of the misjoinder or non- joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.
(2) At any stage of a proceeding the court may by order 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.
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.
Limitations Act, 2002 [hereinafter, referred to as the “Limitations Act”]:
4(1) 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.
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
Discussion and Conclusions:
[33] Both counsel made detailed submissions on the facts, as well as discussed the case-law which each believed relevant as pertains to the facts of this matter. I have taken all this into account. Yet, to avoid elongating these reasons I only discuss that which I find is most apt to this matter.
[34] Beginning with the evidence before me, there was, I observe, nothing from the plaintiff. Rather, only his lawyer Mr. Siddiqui testified via his affidavit and when he was cross-examined thereon. Mr. Barber took pains to assert that this case was not about solicitors’ negligence. I agree that such is not the issue before me. Yet Mr. Siddiqui, through his affidavit, as well as in his cross-examination testimony, squarely put his actions and choices of strategy in issue. I thus am not able to avoid coming to some conclusions thereon. Those are, however, obiter to the first issue before me.
[35] Returning to my opening paragraph of these reasons, I find it difficult to accept that letting an unsophisticated client try to identify or discern who are the defendants arising out of a slip and fall accident in a parking lot is appropriate. In my view, that is counsel’s task. Nor is counsel insisting on fulfilling such obvious responsibilities properly belonging to counsel an “access to justice” issue, as Mr. Barber attempted to argue.
[36] It is equally inappropriate to solely rely on other counsel opposite in interest, with their own (legitimate) agenda, to identify potential “targets” for the plaintiff. As did former counsel for Freshco on May 26, 2020, as referenced above, it is hardly unknown for defendants to such a lawsuit to attempt to broaden the net, to point the litigation finger at other possible defendants to share exposure to liability, so that other parties are equally exposed along with the initial defendant(s). In so doing, counsel for the initial defendant likely hopes to lessen his/her client’s exposure or render it more diffuse.
[37] Accordingly, while in some cases, a defendant may seek to “chest its cards”, as that expression was used in Ali v. City of Toronto, 2021 ONSC 5867 (“Ali”), more often, in my view, defendants in tort cases strategically seek to broaden the base. Yet, while such “free” information may be welcome and helpful to counsel for plaintiffs, I am reminded of what then President Reagan said to then General Secretary Gorbachev: “trust but verify”. It remains the responsibility of counsel for the plaintiff in a tort (or any) action to take such necessary steps so to identify the proper defendant parties.
[38] Yet sometimes, especially when matters are hidden or lurk below the radar of discoverability, doing so is neither easy nor obvious. Indeed, the Rules and the Limitations Act recognize that difficulties in that regard can arise, with the power, in appropriate cases, to allow corrections for misnomer, and, inter alia, the ability to add parties based on discoverability.
[39] Again, referring to the Ali decision, the Court concluded that context in such cases is very important. At paragraph five, Justice D.L. Corbett wrote the following:
… The Associate Justice treated the emerging jurisprudence below as creating a principle of general application. With respect, to the extent that the Associate Justices’ jurisprudence does create such a principle, it is wrong in law. The proper inquiry is context specific. Where a property is obviously under the control of a large business – such as a downtown office-building or a shopping mall, it may be fair to conclude, as a matter of common sense and knowledge, that a private contractor may well have been hired to clear snow and ice. Outside a small business or private residence, it may not be apparent that it is necessary to make such an inquiry. Where, as here, the party responsible for clearing snow and ice is the municipal government, there must be some factual record to establish that a reasonable person would suppose that the City was undertaking this work with a private contractor rather than using its own employees. There was no such evidence on this motion [emphasis added].
[40] In the factual context of this case, Wynn’s submits that, contrary to what the Court of Appeal required in Morrison v. Barzo, 2018 ONCA 979, I do not have any evidence from the plaintiff about when he did or did not discover his claim against Wynn’s, and why the presumption in the Limitations Act at 5(2) was or was not rebutted. In that regard, the Court wrote as follows at paragraphs 31-32:
[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
[41] In some cases, for example, in medical malpractice cases, it may not only be much better from an evidentiary standpoint, but indeed necessary, that the plaintiff swear an affidavit and be cross-examined thereon (perhaps in addition to her or his counsel also testifying). Yet in this case involving a slip and fall in a mall parking lot, in my view the party responsible for suing the correct defendants is the plaintiff’s lawyer. I thus do not accede to the request of Wynn’s to dismiss the motion solely on the basis that the plaintiff did not himself testify. After all, Justice Boswell in McAuley v. Canada Post Corporation, 2021 ONSC 4528, at paragraph 60, cogently observed that:
It is typical on a limitations motion for the plaintiff’s counsel to file an affidavit describing the steps they took to investigate the claim in an effort to substantiate the assertion that the plaintiff was reasonably diligent.
[42] Unlike in that case, I have no discovery evidence of the plaintiff. Yet I am still able to address the matter without summarily dismissing plaintiff’s motion because he did not personally testify in his own affidavit.
[43] Addressing the quality of the evidence, I have already pointed out above a contradiction in the affidavit of Mr. Siddiqui (as to why Wynn’s was not sued at the outset). I also give no credence to the submissions of Mr. Barber in his factum and orally that there is no evidence when the February 4, 2019 email of Freshco’s adjuster, addressed to plaintiff’s law firm receptionist, was actually seen by either Mr. Siddiqui or Mr. Barber (as each were at various times acting as counsel on this matter).
[44] First, at paragraph four of his affidavit, Mr. Siddiqui clearly acknowledges that, on that date “the adjuster wrote to me…”. Secondly, while he raises other concerns about such purportedly unclear correspondence, at no point does Mr. Siddiqui assert in his affidavit that the email did not come to him on the day when it was sent, or very shortly thereafter. The argument that the email was not seen contemporaneously with it being sent is thus disingenuous.
[45] The ultimate question for me is, is it “plain and obvious” that the limitation period has expired (per Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, paragraph 31, and more recently, as expressed by Justice Chown in Zeppieri v. Shahid, 2021 ONSC 2858) before the motion to add Wynn’s was brought? This is again a contextual and fact-specific determination to be made, on all the evidence before me.
[46] On the one hand, on April 15, 2018, a slip and fall occurred in the parking lot of a small shopping plaza, with several different retail outlets. The claim is established on the day of the event, pursuant to section 5(1)(a) of the Limitations Act. On that day the plaintiff surely knew, assuming he was injured as he asserts, that he had a claim against someone.
[47] Yet, against whom? The plaintiff returned to the parking lot in the mall, purportedly to investigate. Ultimately, notice letters were sent on October 12, 2018, as described above. No notice letter, obviously, was at that time sent to Wynn’s. The reason being is that counsel for the plaintiff had no knowledge of Wynn’s at that time. Nor, to be fair, even if counsel had then conducted a title search, as should have been done, would he have discovered the existence of Wynn’s. At that time Wynn’s was simply below the radar of discoverability.
[48] I hasten to add that this was not because of anything nefarious done on the part of Wynn’s. It was carrying on business and, presumably, operating per its contract. Yet there is no evidence, for example, of signage on the mall property that “snow clearing operations are conducted by Wynn’s”, or something similar which would alert a member of the public to its presence or existence, or allow it to be discovered.
[49] Accordingly, I find that neither when the accident occurred, nor as of October 12, 2018, was the claim discoverable against Wynn’s.
[50] There is much to be said for the argument that plaintiff’s counsel should have been aware that there likely was a snow or maintenance contractor for such a mall. As Justice Corbett observes in Ali, above, this, in context of this matter, would be a “matter of common sense”. Yet, while I agree with that, even still, until hearing from Freshco in February 2019, there was seemingly no reasonable way for counsel for the plaintiff to ascertain, or to discover, specifically who that contractor might be. In that regard, I must respectfully disagree with Wynn’s argument made at paragraph 33 of its factum:
…there is no reason the plaintiff, or his lawyers once he retained them, could not have identified a contractor responsible for snow and ice for this snow and ice claim, within weeks of the fall on snow and ice on April 15, 2018.
[51] No evidence is set out for this assertion. In my view, again, counsel for plaintiff should have been alive to the notion that there likely was such a contractor involved in the context of this case involving ice and snow and a slip in a mall. Yet, knowing or assuming that in the abstract, without specifically knowing who that contractor could be, and with no clear (or even murky) way of discovering that important fact, is, I find, not enough to have allowed plaintiff to have then discovered the existence of Wynn’s.
[52] In any event, even if there was some method (not adduced in evidence before me) of discovery, I agree that this would not necessarily be fatal, as my colleague Associate Justice McAfee in Tesema v. 1580346 Ontario Ltd. o/a Freddie's No Frills, 2019 ONSC 4760, stated at paragraph 60:
…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.
[53] In my view, prior to February 2019, there is no evidence of any steps which counsel for plaintiff could reasonably have then taken which would have likely led to the discovery of Wynn’s.
[54] The question, however, remains: as I have ruled out the date of accident itself, and October 12, 2018, then when could Mr. Siddiqui have discovered the existence of Wynn’s as a party against whom the plaintiff would have a claim? I review the four remaining possible dates of discoverability put forward.
• May 26, 2020, when the winter maintenance contract was received: That plaintiff’s counsel before this date did not have the actual Winter Maintenance Contract in my view is not significant. Mr. Siddiqui himself did not indicate that this missing item was any impediment to his intention to sue Wynn’s, pursuant to his above-referenced correspondence of August 1, 2019. The specifics in the contract may have made the claim against Wynn’s more viable, stronger, or better. See Musllam v. Hamilton General Hospital, 2021 ONSC 91, wherein at paragraphs 60-61 in that medical malpractice case the difference between a claim, simpliciter, and a better one, enhanced or improved by additional evidence, is discussed. Yet I find that the claim had already arisen against Wynn’s as of May 26, 2020, as it was already known, or ought to have been known, by then.
• July 18, 2019, when Wynn’s adjuster denied liability: In my view, by this point Mr. Siddiqui knew not only of the existence of a parking lot contractor, he actually knew who it was. That, as he testified to in his affidavit, he was put off or confused by the denial of liability by a potential defendant in a pending action is hard to credit. His own correspondence, the previously referenced August 1, 2019 letter which categorically informed the adjuster that Wynn’s would be a defendant, makes clear that this lawyer was not truly confused by such a pro forma denial of liability. It is, after all, a rare defendant which, on initial demand, at first instance, willingly acknowledges responsibility. Surely no competent plaintiff’s counsel expects such unusual good fortune.
• February 4, 2019, when the email identifying Wynn’s was received by Mr. Siddiqui: In my view, this date was when Mr. Siddiqui was made aware of not only the actual existence, but also the specific identify of this other defendant, against whom the plaintiff likely had a claim. At that time, it was unknown if it was a “good” claim, meaning, one that would likely succeed. Yet the same could fairly be observed regarding the overall cause of action against Freshco and the other defendants initially identified in the notice letters. In my view, however, the February 4, 2019 identification of the maintenance contractor was a sufficient “trigger” for plaintiff’s counsel that there was a claim against this newly identified defendant. Following from Ali, applying common sense, counsel then knew, or certainly ought to have known, that Wynn’s was a party against whom the plaintiff had a cause of action in negligence, similar to the claims he had against the other parties. In other words, as of February 4, 2019, the claim against Wynn’s was discovered.
[55] What is the significance of that date? Applying the relevant sections of the Limitations Act, inter alia, S. 5(1)(a)(iii) and 5(2), as I find the claim discovered on February 4, 2019, then, pursuant to the ordinary law of limitations, the motion would have had to have been brought by February 4, 2021. Yet, the motion was only served on February 11, 2021 and, as discussed above in these reasons, deemed received by February 18, 2021. Ordinarily, the result would thus be that the plaintiff would have been out of time, by about two weeks, to add Wynn’s as a defendant.
[56] Counsel for plaintiff argued that the date the motion was first sought to be requisitioned, starting on December 18, 2020, should count as plaintiff’s intention to bring the motion. In my view, however, such did not provide notice to the parties to be added. Mr. Barber also did not refer to any case-law which held that attempting to requisition a motion, while perhaps evidencing counsel’s intentions, is akin to notice to the impacted party. I thus do not accept this argument.
[57] In any event, fortuitously for counsel for the plaintiff, limitation periods were suspended on March 16, 2020, pursuant to Regulation 73/20 of the Emergency Management and Civil Protection Act. This is thus counsel for the plaintiff’s Deus Ex Machina, as time periods were extended, as all agreed, by six months. Six months from February 4, 2021, the ordinary deadline, is August 4, 2021. As the within motion to add Wynn’s was served and received well before August 4, 2021, which is the new deadline given the time period extension, the plaintiff was accordingly within time when it served its Notice of Motion.
[58] Thus, the pleading is amended to add Wynn’s as a party defendant. Presumably, counsel will be able to agree on the form of an Order, attaching the Schedule “A” amended statement of claim. Such may be sent to Assistant Trial Coordinator Mr. Magnante, who will forward it to me. If there is disagreement about the terms of the Order, such can be addressed when costs are addressed, if such is necessary.
[59] It is appropriate at this juncture to make some observations regarding costs as between Wynn’s and the plaintiff. I urge these parties themselves to resolve this issue. To aid in that regard, I offer this observation. While the plaintiff obtained the result it desired, in my view this was, as I stated above, due more to “fortuitous” circumstances than for any other reason. The quality of the evidence, and the actions of counsel for plaintiff, I have already sufficiently discussed. In my view, Wynn’s did not act unreasonably by opposing this motion.
[60] In these circumstances, preliminarily, I am not of the view that costs should follow the event. I am inclined to either leave costs in the cause or to order no costs. Of course, if the plaintiff still wishes to argue costs, he should be aware of Rule 57.01(2), which is also of possible application herein.
III. COSTS CLAIM OF Defendants 1519958 Ontario Limited and Knightstone Capital:
[61] This issue harkens to the second part of my opening paragraph in these reasons: not suing the wrong parties or releasing them quickly when that occurs. It is conceded by plaintiff that these responding parties should not have been sought to be brought into the action. The only remaining issue, accordingly, is costs between the plaintiff and these parties.
[62] Rule 37.09 (3) provides that, for abandoned motions, a responding party “is entitled to the costs of the motion forthwith, unless the court orders otherwise”.
[63] As the above-recited chronology makes clear, Mr. Macdonald early on informed moving counsel that these responding parties were the wrong parties. Mr. Barber explained in his submissions that he relied on what the then counsel for Freshco informed him on May 26, 2020, when that counsel provided additional “targets”.
[64] Yet, unfortunately, counsel for plaintiff did not do his own due diligence, including obtaining a basic title search, to identify the current owner of the property. He simply relied on counsel opposite who, as discussed earlier, likely had his own agenda. Moreover, after subsequently obtaining an abstract from Mr. Macdonald and obtaining further information from him (which Mr. Macdonald patiently provided), instead of then folding his losing hand and avoiding exposure of the plaintiff to costs, moving counsel still insisted that these responding parties deliver a responding record.
[65] In my view, there was little new information in that record, other than what Mr. Macdonald had already provided. Counsel for plaintiff should have earlier on let these parties out of the matter, and that would have then been without costs. By pushing the matter, choosing to go forward without having taken appropriate steps to verify that the information he was given was still current, counsel exposed their client to costs. Further, I disagree with Mr. Barber that these responding parties in any way caused confusion or muddied the waters. Rather I find that these parties were consistent in the information they attempted to provide to moving counsel.
[66] Given the unfortunate facts of this matter, I see no basis to depart from the general premise of Rule 37.09(3). In other words, I will not “order otherwise”, but will order costs payable by plaintiff to these responding parties. The question then becomes at what quantum.
[67] In the May 3, 2022, Costs Outline, these responding parties claim partial indemnity fees and disbursements at $7,116.29. The substantial indemnity total is $10,064.06. While I appreciate that Mr. Macdonald had to attend court on two occasions, and I consider that the plaintiff could, and should, have reasonably settled this issue let alone have let these parties out far sooner, in my view the quantum claimed is still quite high. Even while I accept that, as was submitted in the Costs Outline, “plaintiff acted unreasonably” in failing to do his own due diligence, more than 20 hours of time of two lawyers and a law clerk for these respondents is, I find, excessive.
[68] Taking the forgoing into account, fixing costs is a holistic endeavour. To that end, I consider this aspect of the motion (and at least that the plaintiff ultimately abandoned it, belatedly), rather than only focusing on the various tasks or steps taken, and how long such task or step took.
[69] As I apply the well-known Rule 57 factors, when dealing with costs, the goal is to fix a fair and reasonable amount, and one which is perceived as such, by the unsuccessful plaintiff. After all, it is the unsuccessful party which typically must pay the costs of the successful party. See, in that regard, Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26.
[70] In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice".
[71] I am guided by these holdings. When I take all the above-discussed factors into account in this matter, including the submissions from counsel, I find that the quantum of partial indemnity costs payable by plaintiff to these respondents is $3,500.00.
[72] My final observation on this issue is that Mr. Barber submitted he had no instructions from the plaintiff to settle this aspect of the motion, implying that the plaintiff could not afford to do so. However, it was likely not the plaintiff who determined the various strategic and tactical decisions in this case, including the decision not to let out these responding parties when that far earlier ought to have occurred, and when so doing would have avoided these costs.
Costs and Order:
[73] As discussed above, the costs of the motion between the plaintiff and Wynn’s should be resolved, along with wording for a Consent Order. Assuming such occurs, this may be sent to me through ATC Mr. Magnante.
[74] If however, the parties are unable to resolve these issues or either of them, a tele-case-conference with me may be scheduled, again, through Mr. Magnante.
ASSOCIATE JUSTICE JAY JOSEFO
DATE: May 20, 2022 (Date Amended: May 30, 2022)