December 13, 2010 by Canadian Underwriter
The Ontario Court of Appeal has confirmed in a slip-and-fall case that the knowledge of the existence – rather than the specific identity – of a potential party invokes the discoverability principle and postpones the expiry of applicable limitation periods.
Roseanna Ansell-Vaughan discussed the ramifications of Safai v. Bruce N. Huntley Contracting Limited in an article published in Dutton and Brock’s eCounsel.
In Safai, a plaintiff slipped and fell on ice in a parking lot on Feb. 17, 2000 and suffered injuries that included a broken ankle.
She launched a lawsuit against the property owner on Feb. 23, 2006.
A lower court found the action to be statute-barred because it was outside the limitation period of six years. The lower court also threw out the woman’s separate Sept. 27, 2006 action against the winter maintenance contractor.
The plaintiff appealed to the Appeal Court. She argued the limitation period should be extended for her actions, because the limitation period should not start to run until she knew the names of the property owner and the winter maintenance contractor.
The appeal court rejected her argument for the property owner, but upheld her appeal for the winter maintenance contractor, finding that she did not know of the existence of the winter contractor as a possible party until after her fall.
“The Court held that on the day of the accident, the [plaintiff] knew she had an injury, knew that she likely had a claim against the owner of the property, and was in a position to discover the name of the property owner,” Ansell-Vaughan wrote. “In these circumstances, there was no reasonable basis to invoke the discoverability principle to delay the commencement of the limitation period.”
However, Ansell-Vaughan added, “with respect to the winter maintenance contractor, the Court held that the discoverability principle did apply.
“On the date of the accident, the [plaintiff] did not know of the role of the winter maintenance contractor and, unlike the name of the property owner, there was no routine search that would reveal the fact that winter maintenance responsibilities were contracted out to another party.
“In these circumstances, the Court held that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability principle.”