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Galota v. Festival Hall Developments Ltd. et al, 2015 ONSC 6177 (CanLII)
Released October 6, 2015 | CanLII
This is a motion for summary judgment on a limitation period issue. On May 13, 2006, the Plaintiff fell off of a dance stage at a bar and broke her arm. She sued only the bar owner (tenant) within two years of the fall. The bar and its insurer defended the action; unfortunately, the bar closed and its insurer became insolvent. After learning of the insolvency, the Plaintiff issued a claim against the landlord of the building in 2011, arguing that she did not learn that she could have a claim against the landlord until the discovery of the tenant in 2009, during which she learned that (a) the landlord was entitled to approve tenant’s improvements pursuant to the lease; and (b) the landlord did, in fact, participate in the design and construction of the dance stage from which the Plaintiff fell.
Corbett J. heard expert evidence of the standard of care for a solicitor in the circumstances. He noted that limitation periods should not be defeated by delaying reasonable inquiries until examinations for discovery; however, the courts do not wish to encourage a “profusion of meritless claims against landlords” just to be safe. In this particular case, Corbett J. concluded that the inherent hazard posed by the elevated dance floor was an obvious issue and was within the Plaintiff’s knowledge from the start. Although it would be inappropriate to name landlords as defendants in every case of an occupier’s liability claim against a tenant, the Plaintiff is required to conduct reasonable investigation of her claim. Corbett J. noted, however, that reasonable investigation does not require a pre-discovery discovery of an adverse party.
Corbett J. concluded that the Plaintiff was not obliged to request a copy of the lease or information about contractors/subcontractors, as those are inquiries that could only have been made of potential adverse parties. Despite the bar being put on notice, neither the bar nor its insurer suggested that liability rested on the landlord or a contractor/subcontractor. The Plaintiff was never put on notice that there was another party alleged to be liable for the claim asserted against the bar. Corbett J. held that the Plaintiff does not have to seek information from adverse parties prior to documentary and oral discovery, in circumstances where those adverse parties have no legal obligation to provide the information. Corbett J. found that the Plaintiff did not show a want of diligence in investigating the potential involvement of the landlord in the design and construction of the elevated dance floor. The summary judgment motion was dismissed.