COURT FILE NO.: 19-143152

DATE: 20220201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathryn Chang, Plaintiff/Respondent

AND:

Forest Ridge Landscaping Inc., Defendant/Moving Party

BEFORE: The Honourable J. Dawe

COUNSEL: J. Daya, Counsel, for the Plaintiff/Respondent

C. Galea. Counsel, for the Defendant/Moving Party

HEARD: November 18, 2021

ENDORSEMENT

I. Overview

1In December 2016 Kathryn Chang had a slip-and-fall accident on a sidewalk in the Town of Aurora. In October 2018, she sued the Corporation of the Town of Aurora and Brookfield Residential Properties Ltd., the builder of the housing development where the accident took place.

2In the fall of 2019, Aurora’s counsel informed Ms. Chang’s counsel that the town had hired Forest Ridge to clear snow and ice from sidewalks in the neighbourhood where the accident took place. Ms. Chang proceeded to launch a separate action against Forest Ridge.

3She commenced her action against Forest Ridge on December 20, 2019, which was nearly three years after the date of the accident on December 26, 2016.

4Forest Ridge now moves for summary judgment, arguing that Ms. Chang’s claim against it is statute-barred by the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, SO 2002, c. 24, Sch. B,

5Ms. Chang’s ability to sue Forest Ridge hinges on when she first “discovered” that she had a claim against Forest Ridge within the meaning of s. 5 of the Limitations Act, 2002. As in many winter slip and fall accident cases, one of the key underlying questions in this case is when a reasonable person in her position would have first discovered that Aurora had hired a private winter maintenance contractor to clear its sidewalks.

6As I will now explain, I am not satisfied that Forest Ridge has demonstrated that the limitations issues this case raises can be fairly determined without a trial.

7In my view, both parties can be faulted for the adequacy of the evidence they have presented in this motion. However, I do not think that Forest Ridge can sidestep its onus as the moving party by pointing to the deficiencies in Ms. Chang’s responding record. As I will explain, I disagree with the suggestion that has been made in some cases that when a defendant asserting a limitation defence moves for summary judgment, the plaintiff bears the initial burden of showing that a trial of the limitations issue is necessary. The general rule, repeatedly affirmed by the Ontario Court of Appeal, is that a defendant who moves for summary judgment bears the initial burden of persuasion, even on issues where the plaintiff will bear the onus at trial. I see no good reason for treating limitations issues differently.

8I am not satisfied that Forest Ridge has met its burden of showing that no trial is necessary to fairly determine the limitations issue in this case.

9Perhaps most importantly, Forest Ridge must show that Ms. Chang’s claim was “discovered” within the meaning of s. 5(1) of the Limitations Act, 2002 more than two years before she commenced her action on December 20, 2019. Even if I were to assume that a reasonable person in Ms. Chang’s position would have recognized that there was a need to inquire into whether Aurora had contracted out its winter sidewalk-clearing duties to a private third party, I am not satisfied that such a reasonable plaintiff would necessarily have made these inquiries before December 20, 2017, which is the date two years before Ms. Chang commenced her action against Forest Ridge.

10While Ms. Chang’s counsel may have been remiss by not making these inquiries when they were first retained in the summer of 2018, Forest Ridge cannot establish a limitations defence by showing that Ms. Chang or her counsel failed to exercise due diligence within the two years limitations window. If she brought her action within two years of the date when a reasonable person in her position would have first realized that she had a claim, it does not matter whether she might have been able to commence it even more quickly if she or her lawyers had been more diligent than they were.

II. Facts and procedural history

11Ms. Chang maintains that she was injured on December 26, 2016 after slipping and falling on an icy sidewalk on William Graham Drive in Aurora. This road is in a housing development that was built by Brookfield.

12In the summer of 2018, Ms. Chang retained counsel, who sent notice letters to Aurora and Brookfield advising them that she meant to sue them both. The letter her counsel sent to Aurora in July 2018 did not ask for any information about possible other defendants. However, the letter her counsel sent to Brookfield in August 2018 stated:

Please also advise if you have knowledge of any other parties who may be responsible for the above-mentioned sidewalk. We would appreciate hearing from you as soon as possible as limitation is soon approaching.

13On October 31, 2018, Ms. Chang’s counsel issued a Statement of Claim naming Aurora and Brookfield as defendants (CV-18-137940). Both defendants delivered notices of intent to defend in January 2019, but they did not serve their statements of defence, in which each also cross-claimed against the other, until May 2019. Before the two defendants had delivered their pleadings, counsel for the three parties corresponded by email and eventually agreed that discoveries would be conducted on November 4, 2019.

14Aurora delivered its statement of defence and crossclaim on May 21, 2019, and Brookfield delivered its own pleadings a week later, on May 28, 2019. Aurora took the position that the sidewalk where Ms. Chang had slipped and fallen was part of an unassumed highway for which it had no responsibility, while Brookfield asserted that Aurora was responsible for winter maintenance of the sidewalk at issue. Neither defendant’s pleadings made any mention of Forest Ridge having been hired as a winter maintenance contractor by Aurora.

15On July 2, 2019, Aurora’s counsel, Charles Painter, wrote to Forest Ridge’s insurance broker. In his letter he explained that Ms. Chang had brought a slip-and-fall action against Aurora, and that the street where the accident occurred “is maintained on behalf of our client by the insured … Forest Ridge Landscaping Inc.”. This is directly contrary to the position Aurora had taken in its statement of defence disclaiming any responsibility for maintaining this street and its sidewalk. However, Mr. Painter did not inform Ms. Chang’s counsel of Aurora’s changed position at this time.

16On October 31, 2019, a few days before the scheduled discoveries, Mr. Painter sent an email to Ms. Chang’s counsel stating:

The Town of Aurora’s defence is about to be taken over by counsel appointed by the insurer for the Town’s contractor, Forest Ridge Landscaping Inc. I am copying in Ms. Galea, with whom I happening [sic]. My understanding is that she will be counsel defending the Town. She has not yet served a Notice of Change of Lawyer however.

Attached is a copy of the agreement between the Town and Forest Ridge.

17The scheduled discoveries were then cancelled. Ms. Galea sent a letter in which she noted that her client Forest Ridge had not been named as a defendant or third party, and that “[i]f any of the parties are going to maintain a claim against Forest Ridge, then the pleadings need to be sorted out prior to discoveries.”

18On December 19, 2019 Ms. Chang’s counsel sent a notice letter to Forest Ridge’s counsel, and on December 20, 2019 issued a Statement of Claim commencing a separate tort action against Forest Ridge (CV-19-143152).

19Forest Ridge delivered its statement of defence on January 16, 2020, and in an accompanying letter Ms. Galea advised that she expected to obtain instructions to bring a summary judgment motion, on the grounds that the action against Forest Ridge was statute-barred by the two year limitation period.

20Mr. Painter’s expectation that Ms. Galea would also be taking over Aurora’s defence turned out to be incorrect, and he remained on the file as Aurora’s counsel. On May 8, 2020 Aurora issued a third party claim against Forest Ridge in the companion action in which Aurora and Brookfield were the defendants. Forest Ridge delivered its statement of defence to this third party claim on June 29, 2020.

21On May 12, 2021 I made a consent order in which I directed that Ms. Chang’s two actions be heard together, and set a timetable for them both to proceed. I also granted leave to Ms. Chang to amend her Statement of Claim in the action against Aurora and Brookfield to plead the date that she first became aware of Forest Ridge’s existence as Aurora’s winter maintenance contractor.

22In the summer of 2021, Ms. Chang and Aurora settled and entered into a Pierringer agreement in which Ms. Chang agreed to release Aurora from the companion action and proceed only against Brookfield. As Abella J. explained in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623 at para. 6:

[A] Pierringer Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused. There is no joint liability with the settling defendants, but non-settling defendants may be jointly liable with each other.

23I then heard Forest Ridge’s summary judgment motion on November 18, 2021 and reserved my decision. At the conclusion of the hearing I directed that both parties could file additional written submissions on a particular issue raised by Ms. Chang’s counsel during the hearing. Both parties proceeded to file supplemental submissions in December 2021.

III. Analysis

A. Should I refuse to consider Ms. Chang’s supplemental submissions?

24Forest Ridge argues that I should disregard Ms. Chang’s supplemental written submissions because they go beyond the issue on which her counsel had asked to file additional written argument, and because they were filed one day after the deadline that I had set.

25I disagree. Ms. Chang’s supplemental submissions focused on a recent decision of a single judge panel of the Divisional Court, Ali v. City of Toronto, 2021 ONSC 5867, rev’g 2020 ONSC 5888, that was released in early September 2021. Neither party brought this case to my attention at the hearing, although Forest Ridge had cited and relied on the decision that was overturned by the Divisional Court. As I will discuss, the Divisional Court’s decision in Ali also casts considerable doubt on the correctness of many of the other cases that Forest Ridge cited and relied on in its factum. I would note that Forest Ridge’s factum is dated November 15, 2021 hearing, some two and a half months after the Ali decision was rendered on September 2, 2021.

26In my view, it was entirely appropriate for Ms. Chang’s counsel to alert me to the existence of the Divisional Court’s recent decision, even though it did not bear on the specific issue on which I had given her leave to make supplemental written submissions. Indeed, it is very disappointing that Forest Ridge’s counsel did not bring the Divisional Court’s judgment to my attention in the first place, given that she was relying on the specific decision that was overturned, as well as on the broader line of authority that Ali calls into question.

27Forest Ridge has also suffered no discernible prejudice as a result of Ms. Chang missing the deadline I had set by a single day. It has filed fulsome responding submissions of its own.

28In these circumstances, I think it is plainly in the interests of justice that I consider both sets of submissions when deciding this motion on its merits. While the Ali decision, rendered by a single judge sitting as a judge of the Divisional Court, is not binding on me in the way that a judgment by a three-judge Divisional Court panel would have been, I cannot and will not simply ignore it or its implications for Forest Ridge’s argument, as Forest Ridge would have me do. Indeed, if Ms. Chang’s counsel had not brought the case to my attention, Forest Ridge’s counsel ought to have done so herself as an officer of the court.

B. Sections 4 and 5 of the Limitations Act, 2002

29Section 4 of the Limitations Act, 2002 requires a plaintiff’s action in respect of a claim to be “commenced” within two years of “the day on which the claim was discovered”. Under Rule 14.01 of the Rules of Civil Procedure, an action is “commenced” on the date that a statement of claim is issued.

30Section 5 of the Limitations Act, 2002 defines when a claim is deemed to have been “discovered” for the purpose of s. 4. Specifically, subsection 5(1) provides that a claim will be “discovered” on the earlier of two dates: (a) the date when the plaintiff acquired actual knowledge of the facts giving rise to the claim; or (b) the date when “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)”.

31Subsection 5(2) then reverses the onus of proof on the issue of actual knowledge in s. 5(1)(a), providing:

5 (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.

32It should be noted that s. 5(2) does not create any presumption with respect to the question under s. 5(1)(b) of when a reasonable person in the plaintiff’s position ought to have known of these matters. As Laskin J.A. explained in Galota v. Festival Hall Developments Limited, 2016 ONCA 585 at para. 15, “[t]he rebuttable presumption in s. 5(2) means that a plaintiff has the onus of showing that the rule of discoverability in s. 5(1)(b) applies”.

33In summary, if Ms. Chang’s action proceeds to trial, she will have to prove that she did not acquire actual knowledge of Forest Ridge’s potential role in her December 26, 2016 slip-and-fall accident at any time before December 20, 2017, which is the date two years before the day when she commenced her action against Forest Ridge by issuing her statement of claim.

34If she can meet this burden, the issue will then become whether a reasonable person with Ms. Chang’s abilities and in her circumstances ought to have acquired this knowledge before December 20, 2017.

35As van Rensburg J.A. explained in Fennell v. Deol, 2016 ONCA 249 at para. 24:

Due diligence is part of the evaluation of s. 5(1)(b). In deciding when a person in the plaintiff’s circumstances and with his abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Again, whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired.

C. The onus of proof on the summary judgment motion

36Forest Ridge moves for summary judgment on the grounds that there is “no genuine issue requiring a trial” with respect to its limitations-based defence against Ms. Chang’s action: see Rules of Civil Procedure, Rule 20.04(2)(a).

37As the moving party, Forest Ridge bears the overall burden of establishing that no trial is necessary. However, both parties have a tactical obligation to “put their best foot forward” and present as much evidence as they can to support their respective positions on the disputed issue.

38As Nordheimer J.A. explained in Dia v. Calypso Theme Waterpark, 2021 ONCA 273 at paras. 24-25:

The obligation on the responding party is often captured by the expression “a respondent on a motion for summary judgment must lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (Ont. C.A.), 21 O.R. (3d) 547 (C.A.), at p. 557.

The fact that both sides to a motion for summary judgment may bear evidentiary burdens does not alter where the onus or burden of proof originates. On this point, I repeat the explanation of the burden of proof enunciated by Brown J.A. in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2016] S.C.C.A. No. 443, where he said:

First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) – “a defendant may... move with supporting affidavit material or other evidence.” As explained in Connerty, [Connerty v. Coles, 2012 ONSC 5218] at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success

39Forest Ridge relies on a line of authority that holds that when a summary judgment motion is brought by a defendant who asserts a limitations-based defence, the initial burden shifts to the plaintiff to show that there is a genuine issue requiring trial: see, e.g., Silva v. Biasini, 2020 ONSC 8035 at para. 30; Verbeek v Liebs-Benke, 2017 ONSC 151 at para. 23; Shukster v. Young et al., 2012 ONSC 4807.

40These cases all adopt Leach J.’s analysis in Shukster, supra, where he stated at para. 19:

Pursuant to Rule 20, a party moving for summary judgment retains the overall burden of showing that there is no genuine issue requiring trial. However, where a defendant moves for summary judgment in relation to a statutory limitation period, the evidentiary burden as to the discoverability issue and under Rule 20 effectively shifts to the responding party under section 5(2). In particular, the plaintiff must adduce evidence sufficient to demonstrate that there is a genuine issue, requiring trial, concerning operation of the limitation period pursuant to subsections 5(1) and 5(2). In particular, a plaintiff seeking to defeat operation of the limitation period on such a motion has the onus to rebut the presumption in s.5(2), or at least demonstrate that there is a genuine issue requiring trial as to whether that presumption is rebutted.

41With respect, I do not think it is correct to say that s. 5(2) of the Limitations Act, 2002 “effectively shifts” the initial onus on a defendant’s summary judgment motion to the plaintiff. I say this for two reasons.

42First, as discussed above, s. 5(2) of the Limitations Act, 2002 creates a rebuttable presumption of actual knowledge on the part of the plaintiff of the matters that are listed in s. 5(1)(a). However, it does not create any presumption in relation to the issue of constructive knowledge of these matters under s. 5(1)(b). Accordingly, even s. 5(2) could be said to “effectively shift” the burden on a Rule 20 motion to the responding party, it is not apparent why this “shift” would apply to the issue of constructive knowledge under s. 5(1)(b), to which s. 5(2) does not apply.

43Second, and more fundamentally, plaintiffs bear the burden of proof at trial on most issues. However, this does not generally reverse the burden of proof when the defendant moves for summary judgment. Rather, the Ontario Court of Appeal has made it clear that a moving defendant bears the threshold burden of establishing that there is no genuine issue requiring a trial, even in respect of issues where it will be the plaintiff who bears the burden of proof at trial.

44For example, Sanzone v. Schecter, supra, involved a medical malpractice action against a group of dental surgeons. When the defendant dentists moved for summary judgment, neither side had presented evidence addressing the question of whether the defendants had breached the applicable standard of care. At trial, the plaintiff would bear the burden of proof on this issue. However, Brown J.A. held that the defendants’ still bore the burden on their summary judgment motion, explaining (at paras. 32-33):

In the present case, given the absence of evidence from the moving party dentists in support of their defence, the motion judge should have addressed the threshold question of whether the respondents had discharged their evidentiary obligation as moving parties under rule 20 to put their best foot forward by adducing evidence on the merits. In my respectful view, the motion judge erred in failing to address that question.

If the respondent dentists had filed evidence dealing with the merits of their defence in support of their summary judgment motion, it would have been open to the motion judge to treat the appellant’s failure to deliver a compliant expert’s report as a basis to dismiss her action. In light of the respondents’ failure to file any such evidence, it was not open to the motion judge to grant summary judgment. He erred in so doing.

45Dia v. Calypso Theme Waterpark is to the same effect. The plaintiffs in that case alleged that they had been assaulted by a group that included the moving defendant, Messina. At trial, the plaintiffs would have to prove that Messina was indeed one of the assailants. However, Nordheimer J.A. held that it was an error for the motion judge to put this burden on the plaintiffs as the respondents to Messina’s Rule 20 motion, explaining (at paras. 22-23):

[I]t is evident that the motion judge reversed the onus or burden of proof from the respondent [defendant], who was the moving party, to the appellants [plaintiffs] as responding parties. For example, the motion judge said, at para. 25:

The plaintiffs argue that Mr. Messina has not proven that he was not involved in the alleged assault. He is not required to do so. Mr. Messina's burden on this motion is to satisfy me that there is no issue requiring a trial in respect of the plaintiffs’ claim against him because the plaintiffs cannot prove that he was involved in the alleged assault. He has met that burden. [Emphasis in original.]

That statement is simply wrong in law. In the circumstances of this case, the respondent was required to prove that he was not involved in the assault. That is the only way he could show that there was no genuine issue for trial as regards the claim against him. It was not up to the appellants to prove the contrary, at least not until the respondent had first met his evidentiary burden.

46I see no principled reason for treating summary judgment motions involving limitations-based defences any differently. In my view, when defendants seek summary judgment on the basis that they have a limitations defence that does not require a trial, they bear the initial burden of supporting their position with some evidence.

47If a moving defendant’s evidence does not satisfy the court that the limitations issue can be fairly determined without a trial, summary judgment should not be granted. The defendant cannot rely on the deficiencies in the plaintiff’s responding motion record as a makeweight.

48It follows that I disagree with Forest Ridge’s assertion that Ms. Chang bears the initial burden on this motion. In my view, the initial burden of persuasion rests with Forest Ridge, as the moving party.

D. Does the issue of Ms. Chang’s actual knowledge of her claim against Forest Ridge require a trial (Limitations Act, s. 5(1)(a))?

49As noted above, if Ms. Chang’s action proceeds to trial she will be presumed under s. 5(2) of the Limitations Act, 2002 “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”.

50In practical terms, this means she will have to prove either that she did not know that Forest Ridge’s “acts or omissions” may have contributed to her slip-and-fall accident (s. 5(1)(a)(iii)), or that she did not know that she had been injured so badly in the accident that “a proceeding would be an appropriate means to seek to remedy” her injuries (s. 5(1)(a)(iv)).

51Forest Ridge argues that Ms. Chang has failed to rebut the s. 5(2) presumption because she “has not filed her own affidavit evidence confirming when she came into knowledge of the [Forest Ridge’s] existence” as Aurora’s winter maintenance contractor. Instead, Ms. Chang has tendered an affidavit from a former associate at her counsel’s law firm, Amanda Theiss, who states in her affidavit that “[t]he Plaintiff had no knowledge of the existence of Forest Ridge until November 1, 2019, when it was relayed to [her counsel] by [counsel for Aurora]”. Forest Ridge points out that Ms. Theiss acknowledged during cross-examination that she had never personally spoken with Ms. Chang.

52Although Rule 20.02(1) allows affidavits on summary judgment motions to be based on information and belief, I agree with Forest Ridge that Ms. Theiss’s bare unsourced assertion about when Ms. Chang first learned of Forest Ridge’s existence is entitled to no weight: see Rule 39.01(4). I also agree with Forest Ridge that Ms. Chang will have to produce better evidence at trial if she hopes to rebut the s. 5(2) presumption of actual knowledge.

53However, Ms. Chang is not required to rebut the s. 5(2) presumption on this motion, as she will need to do if her action proceeds to trial. Rather, as I have already discussed, I consider it to be Forest Ridge, as the moving party, who bears the initial burden of demonstrating that the question of Ms. Chang’s actual knowledge of her claim against it does not require a trial.

54While I agree that it would have been preferable for Ms. Chang to have responded to Forest Ridge’s motion with better evidence about what she personally knew and when she knew it, both about Forest Ridge and about the extent of her injuries, it would be an error of law for me to skip over Forest Ridge’s initial burden on its summary judgment motion: see Dia v. Calypso Theme Waterpark, supra at para. 26.

55In this case, while Forest Ridge will be entitled to rely at trial on the s. 5(2) presumption of knowledge, it has not presented any affirmative evidence that suggests that it will have any basis to challenge Ms. Chang if she testifies at trial that she knew nothing about Forest Ridge’s winter maintenance contract with Aurora until she learned about it from her lawyers in the fall of 2019.

56While courts are “[g]enerally … entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial”, there are “exceptions to this principle”: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 27; Dia v. Calypso Theme Waterpark, supra at para. 26. As Lococo J. explained in DCR Strategies Inc. v Gomez, 2021 ONSC 5404 at para 52:

Generally, the motion judge is entitled to assume that the summary judgment motion record contains all the evidence the parties would present at trial, but the motion judge is not required to make that assumption if in the circumstances of a particular case it is against the interests of justice to do so:

57In this case, I do not think it would be in the interests of justice for me to assume that because Ms. Chang failed to file an affidavit on this motion, she will not be available to give evidence at trial on the issue of her actual knowledge of Forest Ridge’s existence or the seriousness of her injuries.

58I am also prepared to infer circumstantially that if she does testify, her evidence will likely be that she knew nothing about Forest Ridge’s role as Aurora’s winter maintenance contractor, either at the time of her accident or for several years thereafter. It makes little sense that she would have concealed any information she did have about Forest Ridge from her lawyers, or that they would not have named Forest Ridge as a defendant in Ms. Chang’s original action if they had known, or even suspected, that it had a sidewalk winter maintenance contract with Aurora. Ms. Chang gained no discernible tactical benefit by not naming Forest Ridge as a defendant in her original suit and then commencing a separate action against it a year later. Indeed, proceeding in this way seems to have plainly worked to her disadvantage, both by delaying the progress of her case and by requiring her and her lawyers to spend time and resources defending against this motion.

59I agree with Forest Ridge that this type of circumstantial reasoning about what Ms. Chang probably knew and did not know will not be sufficient to rebut the s. 5(2) presumption at trial, and that if this matter proceeds to trial Ms. Chang will be required to produce further and better evidence about her actual knowledge. However, this is not the trial. As I have already explained, I do not think Forest Ridge can rely on the s. 5(2) presumption to shift its burden on its motion to Ms. Chang, as a means of papering over its own failure to lead any affirmative evidence that Ms. Chang was subjectively aware of Forest Ridge’s existence before she learned about it from her lawyers.

60In short, I am not satisfied on the evidential record before me that the issue of Ms. Chang’s actual knowledge does not present a genuine issue that requires a trial. While Ms. Chang ought to have presented better evidence on this point, Forest Ridge cannot sidestep its own obligation to support its position with evidence by pointing to the deficiencies in Ms. Chang’s responding record. Forest Ridge has not met its burden of demonstrating that this issue can be fairly and accurately determined on the record that I presently have before me.

E. Does the issue of Ms. Chang’s presumptive knowledge of her claim against Forest Ridge require a trial (Limitations Act, s. 5(1)(b))?

61Forest Ridge can still succeed on its summary judgment motion if it can demonstrate that the further issue of when Ms. Chang ought reasonably to have known about her claim against Forest Ridge under s. 5(1)(b) of the Limitations Act, 2002 is one that does not require a trial to be fairly determined in Forest Ridge’s favour.

1. General principles

62As a starting point, it is important to note that since Ms. Chang commenced her action against Forest Ridge on December 20, 2019, what matters for the purposes of s. 5(1)(b) is whether a reasonable person in her position ought to have learned about Forest Ridge’s status as Aurora’s sidewalk winter maintenance contractor more than two years earlier: that is, before December 20, 2017.

63If a reasonable person would only have learned about Forest Ridge’s existence as Aurora’s contractor on some date after December 20, 2017, Ms. Chang’s action will have been commenced in time under s. 4.

64Accordingly, it does not matter for the purposes of s. 5(1)(b) whether Ms. Chang or her lawyers ought by reasonable diligence to have discovered Forest Ridge’s existence earlier than they actually did, unless it can also be concluded they ought reasonably to have made this discovery before December 20, 2017. To reiterate van Rensburg J.A.’s observation in Fennell v. Deol, supra at para. 24, lack of due diligence by a plaintiff “is not a separate basis for determining whether a limitation period has expired”.

65It is also important to keep in mind that the issue on this motion is whether the discoverability issue can be fairly resolved in Forest Ridge’s favour without a trial. As I have already explained, I disagree with Forest Ridge that the burden on this motion shifts to Ms. Chang. Rather, I consider it to be Forest Ridge’s burden to affirmatively establish that there is no need for a trial of this issue.

66Put simply, Forest Ridge must satisfy me that the issue of whether a reasonable person in Ms. Chang’s position ought to have learned about Forest Ridge’s existence as a potential tortfeasor before December 20, 2017 is so clear-cut in Forest Ridge’s favour that no trial is necessary to resolve it.

2. Reasonable diligence in winter slip and fall cases

67There is now a sizeable body of cases addressing the specific issue of when plaintiffs in winter sidewalk slip and fall cases ought reasonably to make inquiries about the possible existence of winter maintenance contractors as additional potential defendants.

68Forest Ridge relies on a series of decisions by Associate Justices of this Court – formerly known as Masters – holding that plaintiffs in these types of cases must routinely assume the possible existence of such contractors.¹ In Ali v. City of Toronto, supra at para. 17, Corbett J. summarized the holdings in this line of cases as follows:

[I]t is a fair summary of recent cases to say that several Associate Justices have stated a principle that the existence of hazardous snow and ice is sufficient to require a plaintiff to ask a known tortfeasor (in this case the City) whether there was a private contractor involved in snow removal. In these cases, failure to make the “simple inquiry” is a failure of due diligence within the meaning of limitations law.

69Forest Ridge relies on these cases to argue that:

The existence of ice on the [s]idewalk in the case at hand was a “trigger”. This trigger should have propelled the Plaintiff or her counsel into action to make inquiries of Aurora of whether it had a snow removal contractor.

70According to Forest Ridge, “a person in the Plaintiff’s circumstances and with her abilities ought reasonably to have discovered the elements of the claim on the date of the Accident or shortly thereafter” (emphasis added).

71In contrast, Ms. Chang relies on Corbett J.’s decision in Ali, supra, in which he held that to the extent that the cases relied on by Forest Ridge have been interpreted as establishing a general rule that plaintiffs in winter slip-and-fall cases must always inquire about winter maintenance contractors, they are wrongly decided. He explained (at para. 5)

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.

72Neither of these competing lines of authority are binding on me. However, I agree with and adopt Corbett J.’s analysis.

73Forest Ridge argues that Ali is both wrongly decided and that it is distinguishable on its facts.

74As I will explain, I think the principles laid out in Ali are correct. I do agree that the facts of Ali are distinguishable from those in the case at bar. However, as I will also explain, I do not think that the factual differences between the two cases help Forest Ridge.

75Forest Ridge argues that as a matter of policy, plaintiffs in winter slip-and-fall should be put under a positive obligation to make early inquiries about the existence of winter maintenance contractors, since it may otherwise take years for these contractors to learn that they face tort claims. Forest Ridge argues that allowing this to happen would undermine the policy reasons for having a two year limitation period, and argues further that:

Distinguishing municipalities from other types of large business defendants … does not align with the greater policy objectives of the limitation provisions as they relate to snow removal contractors as contemplated by the jurisprudence.

76In this regard, Forest Ridge points to recent legislative amendments to the Occupiers Liability Act, R.S.O. 1990 c. O.2, that single out claims “for personal injury caused by snow or ice” for special treatment, while acknowledging that these amendments have no application in the case at bar.²

77There is some force to Forest Ridge’s policy arguments. However, the Limitations Act, 2002 tries to strike a balance between the competing interests of plaintiffs and defendants. It puts the onus on plaintiffs to act reasonably in the circumstances that are known to them, but it does not go further than that. Moreover, it does not impose an accelerated timetable on plaintiffs who only “discover” their claim some time after they are first injured. A plaintiff who discovers that he or she has a claim against a winter maintenance contractor at some point after slipping and falling on an icy sidewalk has two years from the date of discovery under s. 5 to commence his or her action. The plaintiff does not have to commence the action within two years of the accident itself if his or her claim is only “discovered” later.

78Ali does not say that plaintiffs in winter sidewalk slip-and-fall cases never have any obligation to make inquiries about the possible existence of private contractors who may have been hired by a municipality to clear snow and ice off its sidewalks. Rather, as I read the decision, it simply stands for the more limited proposition that the existence of such an obligation in a given case, and the question of what plaintiffs must do to discharge their duty to act reasonably, will turn on the particular facts.

79If a winter maintenance contractor defendant seeks summary judgment on the basis that a reasonable person in the plaintiff’s position should have known of its existence earlier than the actual plaintiff did, I see nothing wrong with requiring the contractor to support this contention with some evidence.

80Ali also recognizes that even when it is reasonable for a plaintiff to suspect the possible existence of a private winter maintenance contractor, the timing and nature of the specific inquiries the plaintiff must make will also depend on the circumstances.

81The principle that due diligence is fact-specific is well-established. As Hourigan J.A. noted in Longo v. MacLaren Art Centre, 2014 ONCA 526 at para. 42:

While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case …

82The Limitations Act, 2002 gives plaintiffs two years to commence an action once they have discovered their claim. Depending on the circumstances, it may be reasonable for a plaintiff who knows he or she has a claim against at least some defendants not to try to identify all possible additional defendants immediately, if the plaintiff can reasonably expect that an inquiry made some time later will still allow his or her action to be brought in a timely way.

83Ali goes somewhat further and recognizes that in some situations commencing an action against a municipality can, in itself, constitute a sufficient inquiry about the potential existence of other contractor defendants.

84The plaintiff in Ali commenced her action against the City of Toronto quickly, within eight months of her accident. As I read his reasons, Corbett J. simply concluded that in the circumstances of that case it was reasonable for the plaintiff to expect the City, once it was sued, “to be forthcoming about the identity of other tortfeasors, to which it may seek to shift liability” (at para. 18), and that it would be unduly formalistic to insist that the plaintiff also write a letter to the City making a specific inquiry about possible private contractors. On the particular facts of Ali, the City was already well aware once it was sued that she needed this information, and why she needed it.

85I appreciate that the facts of Ms. Chang’s case are different. Unlike the plaintiff in Ali, she did not retain counsel until some 19 months after her accident, and they did not commence her action against Aurora and Brookfield for another three months, by which time nearly two years had passed.

86I agree with Forest Ridge that in these circumstances, if Ms. Chang’s counsel had reason to suspect that Aurora had hired a private contractor to clear the sidewalks in the neighbourhood where Ms. Chang’s accident occurred, it would not have been reasonable for them to wait for Aurora to disclose this in its statement of defence, as opposed to making a separate and earlier inquiry of the Town. I do think that it still would have been reasonable for them to expect Aurora to disclose the existence of any private contractor in its pleadings, but since Ms. Chang had delayed suing Aurora for nearly two years, her counsel could not reasonably expect that they would necessarily obtain this information in a timely way if they waited to receive Aurora’s statement of defence. Indeed, Aurora ended up taking seven months to deliver its statement of defence and crossclaim.

87However, I do not think these factual differences between the two cases help Forest Ridge, for two reasons.

88First, as I have already explained, Forest Ridge bears the burden of demonstrating on its motion that its limitations defence does not present a genuine issue that requires a trial. However, Forest Ridge has not presented any evidence that would allow me to conclude that a reasonable person in Ms. Chang’s position ought to have suspected that Aurora might have contracted out sidewalk winter maintenance duties to a private business. This is not a particularly onerous burden, but Forest Ridge has made no real attempt to meet it.

89Second, even if I were to treat the mere fact that Aurora is a municipality, and that she slipped and fell on an ice or snow-covered sidewalk, as “triggers” that put Ms. Chang and/or her lawyers on notice that they should inquire into the existence of possible private winter maintenance contractors, Forest Ridge bears the burden of showing that a reasonable person in Ms. Chang’s position would have made this inquiry before December 20, 2017.

90Forest Ridge points out that once Ms. Chang retained counsel in July 2018, they recognized the need to make a separate inquiry about the existence of a winter maintenance contractor at least as far as Brookfield was concerned, arguing in its supplemental factum:

Importantly, unlike in Ali, here the Plaintiff’s counsel, upon being retained by the Plaintiff, made an inquiry with the Brookfield defendant regarding the existence of other parties who may have been responsible for the subject sidewalk. The inference here is that the existence of snow and ice was a “trigger” to the Plaintiff’s counsel (whose firm was no stranger to ice and snow injury claims involving winter maintenance contractors prior to this one). Nevertheless, the reasonable diligence requirement was not met as a result of the failure to make the same or any inquiry of Aurora within the 5 or so months prior to the expiry of two year period from the date of loss [italics in original].

91However, even assuming that Ms. Chang and her counsel were remiss in failing to make a similar inquiry of Aurora, the question of whether they exercised due diligence in the summer of 2018 is beside the point. For Forest Ridge’s limitations defence to succeed, it must show that a reasonable person in Ms. Chang’s position would have made the necessary inquiries and learned of Forest Ridge’s existence more than two years before the date on which she actually commenced her action: that is, at some point before December 20, 2017.

92Lack of diligence by Ms. Chang and/or her lawyers within the two-year window that preceded the commencement of her action “is not a separate basis for determining whether a limitation period has expired”: Fennell v. Deol, supra at para. 24. A defendant cannot assert a limitations defence on the basis that an action that is brought within two years of the plaintiff’s claim first becoming reasonably discoverable could have been launched even sooner if the plaintiff had been more diligent.

93Moreover, the cases on which Forest Ridge relies to not support the proposition that plaintiffs in winter slip-and-fall cases should always be deemed to have constructive knowledge of the identity of all potential defendants “on the date of the [a]ccident or shortly thereafter”, as Forest Ridge contends. Rather, these cases recognize that what should reasonably be expected of plaintiffs depends on their particular circumstances, including when they first retain counsel. In this case, the undisputed evidence is that Ms. Chang did not retain her lawyers until the end of July 2018.

94In my view, the evidence Forest Ridge has presented does not reasonably support the conclusion that a reasonable unrepresented plaintiff in Ms. Chang’s position ought to have learned about Forest Ridge’s status as Aurora’s winter maintenance contractor within the first year following her accident.

95Forest Ridge relies on a letter that its counsel solicited from Aurora’s counsel, Mr. Painter, in which he expresses his opinion that Ms. Chang’s counsel could have easily identified Forest Ridge by making “a simple email or phone call to the Town's legal services department”. Mr. Painter explains that if this had happened:

… we expect that the name of such contractor would have been provided in short order, (at most within a week or two) as the Town is in our experience very willing to share such information with a Plaintiff's counsel once a claim has been reported. Frankly, it serves the Town's interests to ensure such parties are named as co-defendants as soon as possible and within the relevant limitation period, as then a proper crossclaim can be pleaded against such contractor, who normally also has added the Town as an additional insured to their CGL insurance, triggering a duty to defend by their insurer in addition to any indemnity owed under the contract to the Town.

96Although I question whether Mr. Painter’s letter and his expressed opinion are proper evidence, I would have little difficulty drawing a similar conclusion on my own. As a matter of common sense, Aurora’s lawyers would have had every reason to be forthcoming if Ms. Chang’s lawyers had made such an inquiry of them.

97However, Ms. Chang did not retain a lawyer until the summer of 2018. I am not satisfied that it is reasonable to expect an unrepresented plaintiff to have made a similar inquiry with the Town’s legal department on her own, on or before December 20, 2017. Indeed, it seems to me that the likelihood that Ms. Chang’s counsel could have obtained this information quickly and without much difficulty in the summer of 2018 undermines any argument Forest Ridge can make that it was incumbent on Ms. Chang to personally make the inquiry sooner.

98To sum up, I am not satisfied that Forest Ridge has met its threshold burden of showing that the objective discoverability of Ms. Chang’s claim against Forest Ridge does not require a trial.

99First, Forest Ridge has presented no evidence from which I can infer that a reasonable plaintiff in Ms. Chang’s position would have realized that Aurora might have hired a private snow removal contractor to clear ice and snow from the sidewalk where her accident occurred.

100Second, and perhaps even more importantly, Forest Ridge has also presented no evidence to support the further inference that an unrepresented plaintiff in Ms. Chang’s position who did recognize this possibility ought to have made some inquiry about it before December 20, 2017.

101Even if I were to find that Ms. Chang’s counsel failed to act with due diligence once they were retained in the summer of 2018, the most I could conclude from this is that Ms. Chang’s claim against Forest Ridge was constructively “discovered” for the purposes of ss. 4 and 5 of the Limitations Act, 2002 that summer, even though her counsel did not acquire actual knowledge until more than a year later, in the fall of 2019. However, even if this were so, Ms. Chang’s action in December 2019, which was commenced less than two years after the summer of 2018, would have been brought in time under s. 4.

102Ms. Chang can fairly be criticized for not “putting her best foot forward” and presenting better evidence about what she knew and when she knew it, and about her personal “abilities and circumstances”. Her lawyers can also be fairly criticized for not including a specific inquiry about possible existence of a private winter maintenance contractor when they wrote their notice letter to Aurora in July 2018. Whether or not there was a specific “trigger” that made such an inquiry necessary, it would have been a prudent step for them to take in any case, with no discernible downside.

103However, the adequacy of Ms. Chang’s evidential record on this motion would only come into play if Forest Ridge had “discharged its evidentiary burden of proving there is no genuine issue requiring a trial”: Sanzone v. Schechter, supra at para. 30; Dia v. Calypso Theme Waterpark, supra at para. 25. This it has not done.

IV. Disposition

104Forest Ridge’s motion for summary judgment in its favour is accordingly dismissed.

105In different circumstances it might be appropriate in a motion like this one to make a definitive ruling on Forest Ridge’s limitations defence that would bind the parties at trial. In this case, however, the deficiencies in Ms. Chang’s responding record prevent me from doing so. While I am not satisfied that Forest Ridge has met its burden of demonstrating that its limitations defence will be successful, such that no trial is necessary, I am also not satisfied on the limited evidential record before me that Ms. Chang is necessarily entitled to judgement on the limitations issue in her favour.

106Accordingly, my dismissal of Forest Ridge’s motion is without prejudice to its ability to advance it limitations defence at trial.

The Honourable J. Dawe

Footnotes

1. 1See, e.g., Laurent-Hippolyte v. Blasse, 2018 ONSC 940; Pashkiewich v. City of Toronto, 2017 ONSC 6921; Khalid v. 22622351 Ontario Inc., 2018 ONSC 7681; Melville-Laborde v. 3455 Glen Erin Apartments Inc., 2017 ONSC 6004.
2. 2The amendments at issue, which added s. 6.1 to the OLA only came into force on January 29, 2021. It should also be noted that the OLA does not apply to when a "municipal corporation is an occupier of a public highway or a public road" (s. 10(2)).