Adding a Party – Discoverability versus Due Diligence

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​Cote v Ivanhoe Cambridge I Inc., 2018 ONSC 5588 is a slip and fall case (in a mall) in which the plaintiff sought to add a new defendant, Paragon Protection Ltd., the company responsible for security at the mall. The incident occurred on June 12, 2015. The issue was whether the plaintiff’s claim against Paragon ought to have been discovered with due diligence prior to June 26, 2017, the date when the plaintiff was advised of Paragon’s responsibility for mall safety by the defendants.

The court noted that a motion under r. 5.04(2) of the Rules of Civil Procedure is discretionary. The court reviewed the applicable test to add a defendant after the expiry of a limitation period: a motions court must examine the evidentiary record before it to determine if there is an issue of fact or of credibility on the discoverability allegation; if there is such issue, the defendant should be added with leave to plead a limitations defence; if the issue is due diligence rather than actual knowledge, this is more likely to involve issues of credibility requiring a trial or summary judgment motion. The threshold to meet to prove due diligence is not high and requires some positive or active efforts to ascertain the identity of potential defendants or evidence explaining why no such steps were possible. 

In this case, the evidence demonstrated that the plaintiff knew there was a security guard on the premises immediately after she fell, so that the plaintiff’s claim was immediately discoverable. The failure to add the security guard or its employer Paragon as a defendant was based on a lack of due diligence. The court dismissed the plaintiff’s motion to add Paragon.