Pashkiewich v. City of Toronto, 2017 ONSC 6921 (CanLII)
Plaintiff’s motion to add winter maintenance company after the two year limitation period refused due to lack of reasonable due diligence.
Date Heard: November 17, 2017 | Full Decision [PDF]
The plaintiff slipped and fell on a City sidewalk due to an accumulation of ice and snow on February 6, 2014. On November 17, 2017, after the two year limitation, the plaintiff brought the within motion to add Pave-Tar Construction Ltd. as a defendant based on section 5(1) of the Limitations Act 2002. The plaintiff argued the limitation period did not begin to run until September 8, 2017, the date the City of Toronto advised her lawyer that the City had a winter maintenance contract with Pave-Tar. Pave-Tar opposed the motion.
In dismissing the plaintiff’s motion, Master Jolly reiterated it is the plaintiff’s onus to satisfy the court that her claim was not reasonably discovered on the date of the incident. While the courts do not require plaintiffs to write “pro forma” letters, when a fall takes place on snow or ice in winter on City property, a letter to the City inquiring about a winter maintenance contract should not be considered pro forma but considered a reasonable step. While it is uncontested that the bar to show reasonable steps were taken to ascertain the identity of possible defendants is a low one, that low bar was not met in this case. Master Jolly adopted the reasoning of Master Sugunasiri in Melville-Laborde v 3455 Glen Erin Apartments Inc. 2017 ONSC 6004 that, “in the absence of any evidence on the issue of diligence within the two year limitation period, the policy thrust of giving certainty and closure to potential defendants, prevails.”
Read the full decision [PDF]