In Welch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611, the Ontario Superior Court of Justice decision confirmed that in slip and fall actions, the basic limitation period under the Limitations Act, 2002 begins when “through reasonable diligence, the plaintiff could identify the defendant in question as potentially liable.” (para 19). InWelch, the Court allowed the plaintiffs to add a new party outside the limitation period, but dismissed the defendant’s cross-claim against the same party as statute-barred.
In 2009, a married couple sued the owner of a condominium property for injuries the husband sustained as a result of a slip and fall accident on a sidewalk of the building. More than two years after the statement of claim was issued, the plaintiffs moved to add as co-defendant a company in charge of maintaining the condominium at the time of the accident. The defendant owner subsequently issued a cross-claim against the same maintenance company for contribution and indemnity.
The issue before the Ontario Superior Court was when the plaintiffs and owner defendants discovered their claim against the maintenance company.
The Court held that the discoverability test pursuant to section 5 of the Limitations Act, 2002 in slip and fall actions does not require plaintiffs to meet a particularly high threshold. Defendants will generally be added to claims outside the limitation period so long as the plaintiff gives a “reasonable explanation on proper evidence as to why such information was not obtainable with due diligence” and that any remaining doubt is to be resolved “upon a full evidentiary record at trial or on summary judgment”. (para 19).
With respect to the main action, the evidence did not establish that the plaintiffs must have known that there was a company other than the defendants in charge of condominium maintenance at the time of the accident. The Court also dismissed the alternative argument that the plaintiffs could have ascertained the company’s identity through reasonable due diligence. The plaintiffs had in fact made inquiries to the defendant’s insurer regarding other potential defendants and were informed that there were none. Further, the defendant’s statement of defence and affidavit of documents failed to make reference to other potential defendants. Baltman J. reached a different conclusion with respect to the cross-claim. Because the defendant owner had entered into a contract with the maintenance company, it was held to have had actual knowledge of its claim ever since it was served with the statement of claim.