In Ali v. City of Toronto,1 Master M.P. McGraw ruled on plaintiff's motion for leave to amend their statement of claim to add a party as a defendant to the action. Master McGraw denied this motion on the basis that the winter maintenance contractor the plaintiff wished to add was immediately discoverable and as such it was beyond the limitation period to add the party.
Facts
The plaintiff in this matter was a woman who suffered a slip and fall accident due to ice on a city sidewalk resulting in a fractured ankle. The incident occurred on February 15, 2017. She commenced an action against the City of Toronto (“the City”), issuing a statement of claim on October 27, 2017. The City delivered a notice of intent to defend on the plaintiff on February 20, 2018, and its defence on October 19, 2018. On July 24, 2019, the City then advised the plaintiff that a winter maintenance company had been contracted to clear snow, as well as sand and salt the sidewalks in the area she alleged the incident to occur. As this information came well past the two year limitations period, plaintiff counsel brought a motion for leave to amend their statement of claim shortly thereafter in efforts of adding the winter maintenance company as a defendant.
Relevant Analysis and Findings
...a simple inquiry... to the City would have resolved this issue... |
Master McGraw noted initially that amendments should generally be presumptively approved barring certain exceptions.2 He then went on to note, however, that a recent pattern of case law regarding pleadings amendment motions brought by plaintiffs seeking to add maintenance contractors to personal injury actions after the limitations period clearly emphasizes that a failure to exercise reasonable diligence by the plaintiff can be fatal. The plaintiff relied on Madrid v. Ivanhoe, in efforts to demonstrate that the court was not barred from granting leave as there was no ‘triggering event' requiring them to inquire about the existence of additional defendants.3 Master McGraw noted that recent case law has clarified the principles of Madrid however, stating through Laurent-Hippolyte v. Blasse that the existence of snow and ice in and of itself constitutes a triggering event as it would be reasonable to expect a plaintiff to ask the named defendant whether they had obtained a winter maintenance subcontractor.4 Furthermore, Master McGraw noted a simple inquiry through correspondence to the City would have resolved this issue, and basic due diligence had not been conducted.
The plaintiff additionally attempted to submit that the City had an obligation to advise about the existence of the winter maintenance subcontractor, however, Master McGraw dismissed this argument as he noted he was not presented with any authority that provides for a pre-discovery duty of production.
Conclusion
Master McGraw highlights through this decision the importance for counsel to keep limitation periods in mind when proceeding in claims and to make efforts to understand the scope of a claim. In winter slip and fall matters the present case law demonstrates that it is critical to think about all potential parties that may be involved and not to merely rely on a singular party. Furthermore, the decision notes that defendants do not have positive obligations to disclose in pre-discovery periods.
Read Master McGraw's full decision.
- Ali v. City of Toronto, 2020 ONSC 5888 (motion reasons released 20200929)
- Andersen Consulting v. Canada (Attorney General), 2001 CarswellOnt 3139 (C.A.)
- Madrid v. Ivanhoe Cambridge Inc., 2010 ONSC 2235
- Laurent-Hippolyte v. Blasse, 2018 ONSC 940 at paras. 26-27
