This recent case illustrates the importance for plaintiffs and their legal representatives to spend some careful and thoughtful time identifying the parties that are potentially responsible for the alleged loss or injury, because if they fail to sue a responsible party within the limitation period (typically two (2) years, with a few exceptions), there is a significant risk that the responsible party will never have to account for their actions (or lack thereof).
The plaintiff in this instance slipped and fell in the parking lot of a No-Frill’s store, and she sued them at the tail-end of the two (2) year limitation period: but she failed to include the snow removal company. The plaintiff eventually started a separate claim against the snow removal company: the problem, however, was that this claim was started about 2 1/2 years after the slip and fall, and the snow removal company brought a motion to dismiss the claim against them on the grounds that it was brought beyond the 2 year limitation period. The motion was successful, and the claim was dismissed with costs.
Although plaintiffs are allowed to argue that the 2 year limitation period clock should start at a later date, typically the date the plaintiff knew or ought to have known that a defendant could be liable for their losses, the court in this instance rejected all of the plaintiff’s arguments to start the clock later than the date of the incident. The court reasoned that at the time of the incident, or certainly within a few days therefrom, the plaintiff knew she was hurt, she knew where the incident occurred, she believed the person responsible for the cleanliness of the parking lot was responsible, and that for an institution like No Frill’s, it was very likely that parking lot maintenance was contracted out to a third party.
To make matters worse for the plaintiff, the insurance adjuster for No Frills store freely volunteered information to the plaintiff about the existence and identity of the parking lot maintenance company, well before the claim was started. This was not a situation where the involvement of a third party was kept private, or was not patently obvious on the facts.
The Take Away
It is unfortunate, but occasionally claims do get started in haste, perhaps at the eleventh hour (ie: a day before the limitation period is about to expire). This is when mistakes often occur because there is little-to-no time to scour the file and look for references to other parties that may be responsible for the losses, and typically there is no time to make further enquiries.
The first practice tip is to undertake the due diligence as soon as practicable after the incident: this is when memories are fresh, and contacts are most easily found.
However, if a litigant and/or their legal representative find themselves in the regrettable circumstance of having to issue a claim at the eleventh hour, the next best thing to do is add place-names for parties (ie: “John Doe,” “Jane Doe,” “Corporation 1,” etc), with descriptions of their likely role in the cause of the alleged loss, and then work hard and diligently in the ensuing days/weeks to better identify those parties, and amend the claim as quickly as possible thereafter to either revamp the place-holder name with the correct name(s), or in some cases remove the place-holder name altogether once it is determined there was no person or entity in that role. Although this is not ideal, it places the plaintiff in the best position possible should they find themselves starting a lawsuit before all their due diligence investigation has been completed prior to any looming expiration of the limitation period. At this point the plaintiff would be seeking to correct a name or misnomer, which is a far easier argument to make than trying to convince a court to extend the limitation period. See my prior posts on cases dealing with misnomer (here and here).
Rowe v. 1225064 Ontario Limited, 2022 ONSC 5036
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc5036/2022onsc5036.html