January 05, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Ms. Pashkiewich v. City of Toronto, 2017 ONSC 6921 (CanLII)
Decision Date: November 20, 2017
Heard Before: Master Jolley
ADDING DEFENDANT: limitation period; applicant fails to take reasonable steps to determine facts; applicant’s motion to add defendant denied
Ms. Pashkiewich brings this motion to add Pave-Tar Construction Ltd. as a defendant to this action after the expiry of the putative limitation period. Pave-Tar opposes the relief sought. Ms. Pashkiewich relies on section 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c.24, Schedule B to argue that the limitation period did not begin to run until 8 September 2017, the date the City of Toronto advised her lawyer that the City had a winter maintenance contract with Pave-Tar. She argues that she did not discover the existence of Pave-Tar or its potential role until that date and could not have discovered the identity of Pave-Tar with reasonable diligence before that date.
Ms. Pashkiewich did not swear an affidavit so little is known of her “abilities and circumstances”. What we do know in terms of the evidentiary record is that Ms. Pashkiewich slipped and fell on a sidewalk owned and occupied by the City of Toronto on 6 February 2014. Ms. Pashkiewich believes she fell because of a failure to clear the sidewalk and road of accumulated ice and snow and that the sidewalk and road were not salted or sanded.
We do not know if Ms. Pashkiewich exercised reasonable diligence in ascertaining her right to seek damages from Pave-Tar. The record discloses that her lawyers wrote a letter to the City of Toronto in December 2014 putting it on notice of her claim. The letter does not inquire about whether was a winter maintenance company.
Master Jolley reviewed the Limitations Act, the Law and the evidence and determined that a letter to the City inquiring about a winter maintenance contract should be considered a reasonable step. Ms. Pashkiewich has the onus of satisfying the court that her claim was not reasonably discovered on the date of the incident. It is uncontested that the bar is a low one.
Unfortunately, Ms. Pashkiewich here has not met even that low bar. She has led no evidence at all to explain why she did not or could not discover the claim against Pave-Tar within two years of her February 2014 slip and fall.
As noted by Emery, J. in Fontanilla Estate v. Thermo Cool Mechanical 2016 ONSC 7023 (CanLII) at paragraph 40:
Although due diligence on the part of a person in Ms. Pashkiewich’s circumstances to determine the elements of a claim is but one factor in the evaluation of when a limitation period begins, it is an important factor. Where from outward appearances a limitation period has expired, or where discoverability under s. 5(1) of the Act is raised, the court is put on inquiry to determine whether a party has acted with reasonable diligence to learn the identity and role of a prospective defendant to extend the start and end date of a limitation period. However, the court requires evidence of the steps taken to meet the obligation to act with reasonable diligence.
It appears from the record that Ms. Pashkiewich took no steps to determine if where was a winter maintenance contractor despite every indication that Ms. Pashkiewich fell on a city sidewalk that was, allegedly, covered with ice and snow. As a result, Ms. Pashkiewich’s motion to add Pave-Tar as a defendant is dismissed with costs payable by Ms. Pashkiewich to Pave-Tar in the amount of $2,000 forthwith.