January 4, 2021 by Greg Meckbach
A landscaping firm with a contract to spread salt and sand during the winter has been added as a defendant in a personal injury lawsuit in Ontario more than four years after an alleged slip-and-fall accident.
1323765 Ontario Inc., which operates as TQ Landscapes, is arguing that a lawsuit filed by Ibatete Vuniqi is barred by the province’s Limitations Act because TQ Landscapes was not named as a defendant within two years of the incident giving rise to the lawsuit.
Vuniqi says she slipped and fell Dec. 5, 2016, outside her Ottawa apartment building.
In Vuniqi v. Paramount Property Management et. al., released Dec. 23, 2020, Ontario Superior Court Justice Heather J. Williams ruled that TQ Landscapes can be added as a defendant. TQ Landscapes can still argue a defence under the Limitations Act.
So now TQ Landscapes joins Somerset Towers Complex (Ottawa) Ltd. and Paramount Property Management as defendants.
Allegations against TQ Landscapes, Somerset Towers and Paramount Property have not been proven in court.
On Jan. 30, 2017, Vuniqi’s lawyer sent a letter to Paramount, which manages the property. In that letter, Vuniqi’s lawyer asked the property management firm whether a third-party contractor was in charge of maintenance. At the time, Vinuqi did not know that TQ Landscapes had a contract with Paramount Property to spread salt and sand on certain areas.
Vuniqi’s letter also requested that Paramount Property forward the contact information for its snow removal contractor so that the contractor could also be put on notice. The request for the contractor’s information went unanswered until Mar. 5, 2019, two years and three months after the alleged slip-and-fall.
In Ontario, plaintiffs generally have two years to file lawsuits against defendants. Otherwise lawsuits are normally time-barred.
Separately, on Dec. 8, 2020, the province passed Bill 118 into law. That amends the Occupiers’ Liability Act to bar personal injury lawsuits arising from snow or ice unless written notice is served within 60 days of the accident. Vinuqi’s lawsuit was filed before Bill 118 was passed.
In her ruling released Dec. 23, 2020, Justice Williams made two key findings. One was that the plaintiff did not “discover” that she had a claim against TQ Landscapes until Mar. 5, 2019.
Second, Justice Williams found there was not enough evidence to rule on whether a “reasonable person” in Vuniqi’s position would have discovered within two years of the slip-and-fall incident that she had a claim against TQ.
In essence, TQ Landscapes is arguing that Vuniqi’s lawyer did not exercise “reasonable diligence” in finding out that TQ Landscapes had a contract with Paramount Property to spread salt and sand and to remove ice build-up in certain areas before December 2018 (two years after Vuniqi is alleged to have been injured by slipping and falling).
Paramount’s contract with TQ provided that Paramount was responsible for snow removal in specified areas outside the plaintiff’s apartment building and that Paramount was responsible for all other areas.
When Vuniqi’s lawyer did not receive a reply to the letter he wrote to the landlord on Jan. 30, 2017 letter, he followed up with a phone call. He was told to fax the same letter to Paramount, which he did May 12, 2017. Three days later, Vuniqi’s lawyer received a reply from a claims representative with Intact Insurance. The claims representative said Intact was investigating the accident and would provide Vuniqi’s lawyer with the results of its investigation when it was completed.
In September 2018, Vuniqi’s lawyer issued a statement of claim against Paramount, which in turn served a statement of defence in March 2019. In that defence, Paramount stated it had a contract with TQ Landscapes and that if the plaintiff had been injured, TQ Landscapes was partly or entirely responsible. That allegation against TQ Landscapes has not been proven.
In October 2019, Paramount served a notice of change of lawyers. At that time, the in-house lawyers with Economical Insurance, who now represent TQ, assumed Paramount’s defence.
On Jan. 22, 2020, Vuniqi’s lawyer told Paramount’s lawyer that he would be amending the statement of claim to add TQ Landscapes as a defendant. Five months later, Vuniqi’s lawyer asked the court to amend the statement of claim to add TQ Landscapes as a defendant.
In ruling that TQ Landscapes can be added as a defendant, Justice Williams cited Morrison v. Barzo, released by the Court of Appeal for Ontario in 2018.
In Morrison, Justice Katherine van Rensburg discussed how a judge should decide whether or not to allow a plaintiff to add a defendant when the defendant argues the lawsuit is time-barred.
“It is not sufficient for the court to say that the claim was discoverable ‘before the expiry of the limitation period,’ without explaining why,” Justice van Rensburg wrote for the Court of Appeal for Ontario in Morrison. “It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence.”
In Vuniqi v. Paramount Property, Justice Williams noted there was no explanation as to why Intact’s claims representative for Paramount failed to answer the 2017 question from Vuniqi‘s lawyer about whether or not Paramount had a snow removal contractor. There was no evidence about when the claims representative first became aware of Paramount’s contract with TQ Landscapes.
Feature image via iStock.com/Susan Vinyard