Canada: "Safai v. Bruce N. Huntley Contracting Ltd.", 2010 ONCA 545

In this recent decision, the Court of Appeal considered the application of limitation periods and the "discoverability rule" in relation to a slip and fall accident that resulted in claims involving both a property owner and a maintenance contractor.

This decision clarifies that a cause of action against a property owner will typically be discoverable on the date the accident and/or alleged injury occurs, whereas a cause of action against a maintenance contractor will not be discoverable until the plaintiff is notified of the existence of the maintenance contractor's involvement.

Important Facts:

  • The Appellant slipped and fell on a patch of ice in the parking lot of a commercial building on February 17, 2000.
  • In May of 2000, the Appellant's lawyer learned that the registered owner of the commercial building was Bruce N. Huntley Contracting Ltd. (Huntley).
  • Correspondence dated October 19, 2000 from Huntley's insurers to the Appellant's lawyer indicated that Markham Property Services Ltd. (Markham) was responsible for snow removal services at the Huntley property.
  • The Appellant issued a statement of claim against Huntley on February 23, 2006 and a separate statement of claim was issued against Markham on September 27, 2006.

Issue:

If the limitation period began to run from the date of the Appellant's slip and fall, both of the Appellants' claims appeared to fall outside the applicable six year limitation period.

The Appellant argued that the discoverability rule applied to extend the applicable limitation periods and thus allow the claims made against both property owner and the contractor to proceed. The Appellant argued that the names of the property owner and maintenance contractor were essential elements of the cause of action and that time did not start to run with respect to the respective limitations periods until the Appellant knew these names or "by the exercise of reasonable diligence could ascertain them."

The Court of Appeal:

The Court of Appeal dismissed the action against the property owner Huntley, but allowed the action against the maintenance contractor Markham.

The Court quoted Consumers Glass Co. v. Foundation Co. of Canada (1985), 51 O.R. (2d) 385, which held that "in cases which are based on a breach of duty to take care, the cause of action does not arise, and time does not begin to run for the purposes of the Limitations Act, until such time as the plaintiff discovers or ought to reasonably to have discovered the facts..."

When the Appellant was injured on February 17, 2000, she knew that she had a claim against the property owner and was in a position to ascertain the registered name of the property owner. The idea that the limitation period does not start on the date of the accident but instead on the date a routine search reveals the owner's name "defies common sense and is not what the discoverability rule is intended to accomplish." With respect to the maintenance contractor, the Court found that the discoverability rule applied. While it was reasonable for the Appellant to assume that she had a cause of action against the property owner, she did not know that Huntley had contracted out maintenance for the property to a third party. There was also no simple procedure to determine whether maintenance responsibilities had been contracted out, unlike determining the name of the property owner.

Application:

The application of the discoverability rule depends on the ease with which the plaintiff can ascertain the identity of the defendant. If a routine search is available, or the plaintiff is immediately able to connect the defendant to the accident (as in the case of a motor vehicle accident), the limitations period begins to run immediately. However, if the participation of a party is not immediately obvious to the plaintiff and depends on information being provided to the plaintiff from the defendant, the limitations period will not begin to run until the plaintiff becomes aware of this party's potential involvement.

BLG's Insurance and Tort Liability Group

Our national Insurance and Tort Liability Group is unique in its size and specialization. It is believed to be the largest such group in Canada, comprised of 70 professionals, including bilingual members in Montréal.

Our clients include many of the largest national and global insurers, reinsurers and reciprocals in Canada. In addition, we provide legal services to major brokerage firms, large companies carrying substantial self-insured retentions, adjusting firms and regulatory bodies involved in the insurance industry. We are involved as counsel and as litigators, in all areas of insurance law.

The scope of our work for these clients involves the drafting of policy wordings, the interpretation of policies of insurance, coverage opinions, the defence of actions brought against insurers, the defence of actions brought against their insureds, prosecution of subrogated actions and significant participation in negotiation, mediation and arbitration procedures.

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