In litigation, it is always important to determine when exactly a claim is discovered because, under the law, a party only has two years to sue after the discovery of that claim. The Limitations Act defines this date as when a party first discovers that:
- the injury, loss or damage had occurred;
- the injury, loss or damage was caused by or contributed to by an act or omission;
- that the act or omission was that of the person against whom the claim is made; and
- with respect to the above, a proceeding would be an appropriate means to seek to remedy it.[1]
All four factors must be discovered before the limitation period countdown begins.
On January 11, 2014, 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. Bogoroch & Associates LLP commenced a lawsuit against the owner of the condominium and the winter maintenance contractor for the building.
On January 8, 2016, defence counsel for the winter maintenance contractor produced an incident report prepared by G4S Secure Services (Canada) Ltd. (“G4S”), a company that provided security to the condominium. The report indicated that G4S had assisted Ms. Wong after her fall and had even called the winter contractor afterwards. On February 1, 2016, defence counsel for the condominium corporation produced excerpts from its procedures manual, which stated that G4S was responsible for performing certain winter maintenance duties to reduce the risk of slip and fall injuries.
Why are these dates significant? In civil litigation, the two-year mark is often associated with the end of the basic limitation period, usually the time frame in which one party is allowed to start an action against another. After this time runs out, the action becomes statute-barred: no new claim can be started and no new party can be added.
However, the law also requires a party with a cause of action to complete due diligence, which means that a court may presume an earlier date of discovery if a party with the claim ought to have known of the above matters before the date of their actual discovery.[2]
In Wong v Salivan Landscape Ltd.[3], February 1, 2016 would have been, by the basic limitation period, too late to add G4S to the action. G4S opposed being added to the action as they believed that the plaintiff ought to have made inquiries of the role of G4S following her slip and fall accident. Opposing counsel argued that since G4S offered assistance to the plaintiff following her accident, Ms. Wong was aware that G4S provided security to the condominium and therefore could have been a potential defendant in her lawsuit.
Bogoroch & Associates LLP brought a motion to the Ontario Superior Court of Justice to add G4S to the litigation. Associate, Anthea Chan, argued the motion, challenging the security company’s position that discovery of an identity of a party was sufficient to trigger the limitation period countdown under the law.
Master Haberman agreed. She identified a trend in recent case law that puts a lighter onus on plaintiffs to complete due diligence. She followed the decisions of Fennell v Deol, which noted that absence of due diligence is not a separate and independent reason for dismissing a plaintiff’s claim as statute-barred. Master Haberman said that it is not in the interest of justice to impose an “overly muscular level” of pre-discovery due diligence. She determined that the plaintiff did not discover the claim until she obtained the procedure manual from defence counsel stating G4S’ duties with respect to winter maintenance.
Master Haberman granted the plaintiff’s motion to add G4S to the lawsuit with costs.
The full reasons are available here: http://www.canlii.org/en/on/onsc/doc/2016/2016onsc4183/2016onsc4183.html.
Footnotes:
[1] Limitations Act, 2002, SO 2002, c 24, Sched B, section 5(1).
[2] Limitations Act, 2002, SO 2002, c 24, Sched B, section 5(2).
[3] Wong v Salivan Landscape Ltd., 2016 ONSC 4182.