The limitation period against a security firm contracted to perform winter maintenance at a condominium property did not begin to run before the plaintiff had actual knowledge of the security firm’s responsibility. Plaintiff’s counsel’s property searches, notice letters and reliance on information obtained from the property owner constituted due diligence.
Released May 5, 2016 | Full Decision [CanLII]
On January 11, 2014, the plaintiff, Helen Wong, slipped and fell on an accumulation of ice and snow while walking by the entrance of her condominium, causing her to fracture her left ankle. She retained counsel, who conducted a property search, which identified the condominium corporation, YRSCC 1008) that owned the property. The plaintiff delivered a notice letter to YRSCC 1008, which advised the plaintiff on July 22, 2014 that the defendant Salivan Landscape had been contracted to remove snow and ice from the premises.
Ms. Wong issued a Statement of Claim on July 20, 2015, in which she named YRSCC 1008 and Salivan as defendants, based on the information she had obtained. YRSCC 1008 delivered a Statement of Defence and cross-claimed against Salivan Landscape. Salivan Landscape also delivered a Statement of Defence and crossclaim in November 2015.
On January 8, 2016, Salivan Landscape’s insurer sent an email attaching a number of documents, including a contract showing that a proposed defendant, Brookfield, was in fact responsible for the removal of snow and ice at the time of the incident. Also enclosed was an incident report prepared by G4S, the company that provided security to the condominium. The incident report indicated that Salivan Landscape had been contacted after the incident to salt the entire property to prevent another incident from happening.
On February 1, 2016, YRSCC 1008’s counsel advised Ms. Wong’s lawyer by email that G4S had salts available to it and was expected to use it if necessary and to then call Salivan Landscape if necessary. Later that day, YRSCC 1008’s counsel forwarded a copy of a contract confirming that G4S security guards were required to perform certain winter maintenance activities to reduce risk of slip and fall injuries.
After receipt of this information, Ms. Wong’s counsel moved promptly to determine the proper legal names for G4S and related companies and brought a motion to amend the Statement of Claim to add the parties.
G4S opposed the motion on the basis that Ms. Wong ought to have made inquiries of G4S as to his role following the slip and fall.
Master Haberman reviewed recent decisions, which indicated a trend toward diluting the heavy onus that some previous cases had placed on plaintiffs to demonstrate due diligence. Included among these cases was the decision of the Ontario Court of Appeal in Fennell v. Deol, 2016 ONCA 249. In Fennell, the Court noted that while due diligence is a factor that informs the analysis of when a claim ought to have been reasonably discovered, the absence of due diligence is not a separate and independent reason for dismissing a plaintiff’s claim as statute-barred. Master Haberman also referenced a line of Superior Court of Justice decisions that noted that is contrary to the interests of justice to impose an “overly muscular level” of pre-discovery due diligence that would effectively amount to a pre-discovery discovery.
Master Haberman granted the plaintiff’s motion with costs.
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