The Ontario Superior Court recently confirmed the importance of the principle of “discoverability” when considering claims against potential defendants.
Generally speaking in Ontario, a court claim must be started within 2 years of the date that the claimant knew or ought to have known they had a claim. Whether or not a claimant ought to know about the claim requires that the claimant become aware, or “discover”, that the claim exists. Only when the claimant actually discovers the claim, does the 2-year limitation period begin.
The case of Carone v. Peel Condominium Corp. No. 766 dealt with the principle of discoverability in the context of a claim for damages related to a slip-and-fall accident that occurred as a result of the defendant’s alleged failure to properly clear snow and ice. The plaintiff filed her claim against the defendant condominium corporation within the 2-year limitation period. However, when she filed the claim, she was not aware that at the relevant time the condominium had a contract for snow removal with a third-party contractor. She discovered this fact more than 2 years after the accident, and then took steps to advance her claim against the contractor. The contractor resisted the claim on the basis that the plaintiff ought to have discovered her claim against the contractor sooner. They took the position that the plaintiff failed to make reasonable inquiries to confirm the existence and identity of the contractor involved in snow and ice removal. Had she done so sooner, she could have discovered the identity of the contractor more than 2 years before the claim against the contractor was advanced.
The Court agreed that where a party “fails to make inquiries about possible claims… by not asking any questions, that party might find herself outside a limitation period.” However, the Court ultimately found in this case that the plaintiff did take reasonable steps to determine whether or not a contractor was involved in snow maintenance on the property, and despite the fact that the defendant condominium corporation could have disclosed the identity of the contractor sooner, it failed to do so. The Court found that the plaintiff “should not be deprived of the opportunity to advance a claim” on the basis that the contractor’s identity was not disclosed to the plaintiff by the other defendants.
This case serves as a reminder of the importance of asking reasonable questions regarding the involvement of all possible parties, whenever someone considers making a claim. This of course is also true for a condominium corporation that is considering a claim. While you may not get the answers you are looking for, by asking questions you will ultimately be able to avoid any argument that you could have discovered your claim (and the responsible parties) sooner.
For more information about court claims and limitation periods, contact us.