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Summary Judgment Motion: Discoverability is Based on Knowledge and Defendants Have Responsibility to Act Promptly As Well

If you are hurt in a slip and fall (ie on snow or ice), then your lawyer will have to try to sue not only the owner of the property but the maintenance company which was contracted to clean / care for the land – i.e. the snow clearing contractor.

As the injured plaintiff, you can do a property search on the owner of the land where you fell, but finding the contractor, if any exists, means you either rely on the landowner’s insurer advising you or you, through your familiarity with the property, know the contractor’s name yourself.

So as a plaintiff’s solicitor, you try to move quickly and engage the insurer for the landlord and ask whether a contractor exists, as appears to have been done in the recent case: Welch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611 (CanLII)

In this summary judgment motion, after this Feb/2008 slip and fall, the plaintiff’s solicitor asked the landowner’s insurer for the identity of the snow clearing contractor in Nov/2008 and was told there was no such information. The Statement of Claim was served in the Fall 2009 and the Statement of Defence made no reference to a snow contractor.

Discoveries were arranged for June/2010 – 2.5 year post-accident – and then cancelled at the last moment because the landlord appeared to have some information about a snow contractor. In July/2010, the landlord gave the contractor’s name. On consent, the amended Statement of Claim was issued in Aug/2011. The landlord’s Statement of Defence to the amended claim included a crossclaim against the contractor.

On the discoverability issue, it was found that the plaintiff knew or ought to have known of the snow contractor in July/2010, so the two year period started then.

For the landlord, however, the summary judgment motion succeeded in dismissing the Crossclaim against the snow contractor.  Since the landlord contracted with the snow contractor to clear the property, including at the time of the Feb/2008 accident, this was information that the landlord knew or ought to have known as of the accident. Therefore, their Crossclaim filed in 2011 was outside of the limitation period.

This is a good reminder for tort adjusters to verify the information in the possession of their insured – which I find most tort adjusters are extremely diligent.  It’s also a good reminder for defence counsel to move quickly – ie if they were retained shortly after this Sept/2009 Statement of Claim was issued – as the primary defence of all landlords, pursuant to theOccupier’s Liability Act, is to shift legal liability to the contractor paid to maintain the property.

This particular case creates an unusual possibility of the plaintiff settling the case against the contractor separately from the landlord, as the landlord no longer has a Crossclaim for contribution and indemnity against the contractor.
Gregory Chang
Toronto Personal Injury and Insurance Lawyer