Plaintiff in Toronto ‘slip and fall’ Accident misses Deadline to add another Defendant to Claim

Posted by Injury Lawyers of Ontario on July 03, 2018

Under Ontario’s Limitations Act, a person who sustains an injury due to negligence is obligated to commence their claim for damages within a two-year limitation period.  The two-year period begins on the date the injured person realized they suffered a loss caused by a particular defendant, which is usually two years from the date of their accident.  Given this deadline for making a claim for compensation, it’s prudent to seek advice from a knowledgeable personal injury lawyer soon after you are injured by a negligent party, to ensure your claim is filed on time and against the appropriate ‘at fault’ defendant(s).

A civil action was recently commenced when a woman was injured after falling on a Toronto walkway that led to the woman's apartment building.  Initially, the claim named only one defendant, Rengro Ltd., who she believed to be the owners of the property where the incident occurred. 

After the limitation period had expired and more than two years after the accident, the plaintiff filed a motion to amend her Statement of Claim to add a second defendant to her lawsuit, when the plaintiff’s lawyers eventually ascertained that another party was the likely owner of the walkway where the plaintiff fell.  In the trial, Bowen v Rengro Ltd., the motion’s judge was required to decide whether the plaintiff (through her lawyers) performed the requisite degree of due diligence in investigating the ‘slip and fall’ accident and particularly, in establishing the correct owners of the property where the accident occurred.

The slip and fall accident happened on a walkway that runs from a City of Toronto sidewalk, between two similar apartment buildings on Wilson Avenue and leads to the entranceways of both buildings.  After she fell, the plaintiff notified the property manager of the building where she lived, and he replied ‘that’s what we have insurance for’.  The plaintiff’s counsel accepted the manager’s comment as an admission that the walkway was owned by the owner of the building where the plaintiff resides and accordingly, the civil action was commenced only against that owner.

In later communications with the existing defendant and their insurance company, these parties denied that the walkway was on the existing defendant’s property. Rather, it was asserted that the walkway was most likely located on the adjacent property, which is owned by the proposed defendant, A. V. Management Ltd. This discovery led to the current motion to amend the plaintiff’s claim, more than two year's after the accident and after the limitation period had expired.

In making his decision, Justice Short referenced his finding in Wolkowicz v. Avignon Inc. (2011), where he dismissed a motion to amend a claim due to the fact that “virtually nothing had been done to establish the proper defendant prior to the expiry of the two-year period”.  The judge noted that although counsel will not be held to a standard of perfection, parties must make a reasonable and meaningful attempt to determine the proper owners of properties involved.

For the current case, both parties filed only abbreviated abstracts of the title documents for this action, rather than the full documents, and these documents were inadequate for identifying ownership of specific portions of land.  The Court therefore requested counsel to obtain copies of the parcel register for the two portions of land.  This documentation indicated a transfer of 1750 Wilson Ave to Rengro Ltd, the initial defendant, and also indicated an intention to sever the two adjacent units into separate parcels.  Of particular importance was a reference to the right-of-way for pedestrian traffic between the buildings, for which it was indicated that the existing defendant has both entitlement to the use of, and responsibility for, the right of way.  Justice Short noted that the existing defendant may have claim against the neighbouring owner, depending on the contractual arrangements between the two owners regarding responsibility for the maintenance of the walkway (which may not necessarily be part of this action).

Justice Short acknowledged that ‘the general rule is that amendments to a Statement of Claim are presumptively approved”.  Nevertheless, in the current case, the judge found that he was not satisfied that there was adequate and timely due diligence on the part of the plaintiff or her counsel, with respect to investigating the matter of the ownership of the walkway, that justifies adding the adjoining owner as a defendant in her claim after the limitation period has expired.  However, the judge noted that his decision to dismiss the plaintiff's motion to add a second defendant is likely not overly prejudicial to the plaintiff, as “it is clearly arguable that the title document obliges the existing defendant to be responsible for the Walkway” where the plaintiff was injured.   

For slip and fall accidents that occur in urban environments, there are often multiple potential defendants involved in a civil action, which may or may not include the municipality. In such cases, plaintiff’s counsel must perform full due diligence to discover all defendants who may be negligent in the plaintiff’s injury.

The personal injury lawyers at Injury Lawyers of Ontario are an affiliation of well-established, experienced and respected law professionals who are committed to zealous and effective representation for injured plaintiffs.  Call a knowledgeable Toronto slip and fall accident lawyer for an honest assessment of your case and learn about your legal right to compensation.

 


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