LAST MINUTE CLUB: A SAVVY
                                             TRAVEL CONCEPT THAT SHOULD
TRAVEL GUIDE                                 STAY OUT OF LEGAL PRACTICE:
                                             Travellers can get away with hastily planning last minute vacations as there is
                                             always an available flight to somewhere warm if one looks hard enough. Plaintiffs’
                                             counsel, on the other hand, might consider twice against adopting similarly
                                             haphazard approaches for identifying prospective tortfeasors to be named in
                                             contemplated lawsuits.
                                             In Safai v. Bruce N. Huntley                sor, the limitation period is move-
                                             Contracting Limited, 2010 ONCA              able and does not start to run until
                                             545, the Ontario Court of Appeal            that information is in hand.
                                             considered whether the limitation
                                             period within which to commence             The Motion Judge dismissed both
                                             an action could be extended using           actions. The Judge held that the
                                             the discoverability principle in cases      discoverability principle had no
                                             where the identity of a tortfeasor          application to either case since it
                                             was unknown on the date of the              was clear that all the elements of the
                                             loss.                                       Plaintiffs’ cause of action were
                                                                                         known within six years of the date
                                             The Plaintiff slipped and fell on ice       of the loss, and that the only cause
                                             in a parking lot on February 17,            of the delay in issuing the claim
                                             2000 and suffered injuries that             within the prescribed period was
                                             included a broken ankle. She                the inadvertence of the Plaintiffs’
                                             learned of the correct identity of the      lawyer.
                                             owner of the parking lot in May
                                             2000, and the name of the                   The Plaintiffs appealed to the
                                             company responsible for the winter          Court of Appeal, arguing that the
                                             maintenance of the parking lot in           discoverability principle applied
                                             October 2000. On February 23,               and served to extend the limitation
                                             2006, the Plaintiff commenced an            periods such that the actions against
                                             action against the property owner.          the Respondents should be allowed
                                             On September 27, 2006, she                  to proceed. The Appellants further
                                             commenced a separate action                 argued that the names of the prop-
                                             against the winter maintenance              erty owner and the winter mainte-
                                             contractor.                                 nance contractor were essential
                                                                                         elements of the cause of action such
                                             The Defendants moved for                    that the limitation period did not
                                             summary judgment arguing that               start to run until the appellants
                                             the six-year limitation period had          knew these names, or could
       A Quarterly Newsletter                expired for both actions. Although          discover them by the exercise of
       published by                          they agreed that the applicable             reasonable diligence.
       Dutton Brock LLP                      limitation period was six years, as
                                             set out in the earlier Limitations Act,     The Court dismissed the appeal
                                             R.S.O. 1990,c.L the Plaintiffs              against the property owner, but
                                             raised the discoverability principle,       allowed the appeal against the
                                             stating that there were genuine             company responsible for winter
                                             issues for trial as to when they knew       maintenance of the parking lot.
                                             or ought to have known the identi-
                                                                                         cont’d on page 2, see Last Minute Club
                                             ties of the owner of the property
                                             where the accident occurred and
          Winter 2010
          Issue Number 35                    the contractor who had been                  Other topics
                                             employed to provide snow removal
                                                                                          Contractors Duty to defend
“One’s destination is never a place, but a
                                             services for the parking lot. The
                                             Plaintiffs argued that, so long as           An eye to the exit
new way of seeing things.”
                                             reasonable diligence is made to              Never too late to book your trip
~Henry Miller
                                             determine the identity of a tortfea-
from page 1, see Last minute
Last Minute Club
The C
Th Court recognized that the
                      i d h          h     id i
                                           identity of a potential party – that
                                                      f           i l         h                   decision clarifying snow removal
                                                                                                  d ii        l if i              l
discoverability principle is properly      invokes the discoverability principle                  contractors’ obligation to defend
applied to cases where the issue is        and postpones the expiry of an                         occupiers.
the discovery of the extent of an          applicable limitation period. In the
injury or the delayed effect of a          context of occupiers’ liability cases                  In 2008, the Ontario Superior
party’s negligence. However, the           the application of the discoverabil-                   Court addressed the issue of a
Court stated that the issue in this        ity principle will depend on                           contractor’s duty to defend an
case concerns the discovery of a           whether or not it is immediately                       occupier in the decision of Riocan
tortfeasor, which involves more            clear to a plaintiff that anyone other                 Real Estate Investment Trust v.
than discovering the identity of a         than a property owner may have                         Lombard General Insurance Co.,
tortfeasor. Rather, it involves the        played a role in causing the injuries                  [2008] 91 O.R. (3d) 63. Now, in
discovery of those acts or omissions       at issue. Where a plaintiff is advised                 Cadillac Fairview Corporation v.
that potentially give rise to liability.   of another party’s involvement, the                    Oakridge Landscape Contractors,
                                           limitation period will commence                        [2010] CarswellOnt 5948, the
The Court held that on the day of          on the date the plaintiff obtains that                 Court has again rendered another
the accident, the main Appellant           knowledge.                                             decision which revisits this issue.
knew she had an injury, knew that
she likely had a claim against the         Editor’s Note: Since this article was                  The facts of the case are fairly
owner of the property, and was in a        written, the decision of Madrid v.                     straight forward. The Plaintiff
position to discover the name of the       Ivanhoe Cambridge Inc. (2010), 101                     slipped and fell on ice on property
property owner. In these circum-           O.R. (3d) 553 (S.C.J.) was released.                   owned by Cadillac Fairview. Cadil-
stances, there was no reasonable           Although Madrid does not cite                          lac Fairview had entered into a
basis to invoke the discoverability        Safai, it does consider the same                       contract with Oakridge for the
principle to delay the commence-           issues. Madrid held that where                         removal of snow and ice from the
ment of the limitation period. The         plaintiff ’s counsel merely received a                 property. The certificate of insur-
Court added that the Appellants’           “naked denial of liability” letter                     ance which identified Oakridge as
argument that the limitation period        from a prospective defendant’s                         the named insured also included
ought not to commence on the date          adjuster that did not indicate that                    the following:
of an accident, but on the date that       other contracted parties may be
a routine search revealed the              involved,       the    discoverability
owner’s name was contrary to both          principle is not triggered and the
common sense and the intended              limitation period does not being to
purposes of the discoverability            run as against those unidentified
principle.                                 contractors.
                                                             Roseanna Ansell-Vaughan’s
However, with respect to the winter                          defence-oriented practice
maintenance contractor, the Court                            includes a wide variety of
held that the discoverability                                general insurance liability issues
principle did apply. On the date of                          including occupier's liability,
the accident, the Appellants did not       professional responsibility matters, motor
                                                                                                  It Is Hereby Understood and
                                           vehicle accidents, products liability, property
know of the role of the winter             loss, false arrest/false imprisonment, construc-       Agreed That the Cadillac Fairview
maintenance contractor and, unlike         tion negligence, and insurance coverage issues.        Corporation Limited [and certain
the name of the property owner,                                                                   other corporations] ... are added as
there was no routine search that                                                                  additional insureds, but only with
would reveal the fact that winter          Contractors’ Duty to                                   respect to liability arising out of the
maintenance responsibilities were
contracted out to another party. In
                                           Defend                                                 operations of the named insured.

these circumstances, the Court held        It’s that time of year again! It’s early               The statement of claim asserted six
that there is a genuine issue for trial    December and the white stuff is                        particulars of negligence against the
concerning the running of the              starting to fall while pesky ice forms,                contractor and ten particulars of
limitation period and the applica-         all of which serves to keep the insur-                 negligence against the occupier.
tion of the discoverability principle,     ance industry busy with a host of new                  Every allegation but one made
and accordingly the action as              claims arising from tried-and-true                     reference to the build up of ice. The
against the winter maintenance             boilerplate allegations that forcefully                one allegation which did not refer
contractor should be allowed to            plead that occupiers negligently                       to the buildup of ice referred to the
proceed.                                   “created a concealed hazard for the                    occupier failing to take adequate
                                           innocent and unsuspecting invitee”.                    measures to manage the wear and
This case serves to confirm that it is     Thankfully, the Court of Appeal has                    tear of the pavement.
the knowledge of the existence of a        also, predictably, returned with an
potential party –and not the               early gift in the form of another                      In determining the contractor’s
                                                                                                  cont’d on next page
from page 2, see Contractors’ duty
Contractors’ Duty
duty to defend the occupier, Justice     look to the true nature of the claim                                     intervened
                                                                                          ees of the fitness club intervened,
Ramsay cited the following factors       when determining the duty to                     one employee did call out to advise
identified by the Ontario Court of       defend. Accordingly, one could                   that police had been summonsed.
Appeal in Halifax Insurance Co. of       argue that despite any claim against
Canada v. Innopex Ltd, [2004]72          an occupier for their independent
O.R. (3d) 522:                           acts of negligence, if the true nature
                                         of the claim is for damages arising
                                         from the contractor’s negligence
A duty to defend arises when an          then said contractor must defend
insurance policy provides for cover-     the claim on behalf of the occupier
age against liability, and a claim is    where the occupier is named as an
made which, if proven, would             additional insured under the
subject the insured to liability.        contractor’s policy of insurance. In
                                         this case, the true nature of the
The duty to defend is broader than       claim was negligence in the removal
the duty to indemnify. The duty to       of ice and not the occupier’s failure
indemnify only arises if the claim is    to maintain the pavement. The                    In conducting a review of the
proven.                                  contractor’s insurer was thereby                 Plaintiff ’s ability to succeed based
                                         obligated to defend Cadillac                     on a claim for negligence or under
As a result, the duty to defend is       Fairview.                                        the Occupiers’ Liability Act, Justice
determined as a preliminary matter,                      Christopher Martyr has a         Lauwers reviewed the decision of
while the duty to indemnify is                           general insurance defence        the Supreme Court of Canada in
decided at the conclusion of the                         litigation practice and has      Waldick v. Malcolm, [1991]
underlying litigation.                                   acted on behalf of insurers on
                                                                                          2.S.C.R. 456, which stated:
                                                         various personal injury,
                                         general liability, property and subrogation
The duty to defend is determined         matters                                          After all, the statutory duty on
by the insurance policy, the plead-                                                       occupiers is framed quite generally,
ings and any documents to which                                                           as indeed it must be. That duty is
the pleadings refer and on which         An Eye on the Exits                              to take reasonable care in the
they rely. Any other evidence is         As you stumble to your room after                circumstances to make the premises
inadmissible, apart from expert          having drunk a little too much                   safe. That duty does not change
evidence which might be admissible       tequila at the all-inclusive’s nightly           but the factors which are relevant to
to explain the technical meaning of      show, be careful not to attract                  an assessment of what constitutes
the terms in the insurance policy.       unwanted attention from others. In               reasonable care will necessarily be
                                         the event that you end up injured as a           very specific to each fact situation –
It is not necessary to prove that the    result of an altercation, you likely do          thus the proviso “such care as in all
obligation to indemnify will in fact     not have recourse against the occupier,          circumstances of the case is reason-
arise in order to trigger the duty to    even if you were successful in having            able”.
defend. The mere possibility that a      the lawsuit brought in Ontario to
claim falling within the policy may      begin with.                                      Although the fitness club had a
succeed will suffice. The duty to                                                         check-in procedure in place, it was
defend is confined to the defence of     In Coleiro v. Premier Fitness Clubs              clear that on some occasions non-
claims which may be argued to fall       (Erin Mills) Inc. [2010] O.J. No.                members gained entry. Given this
under the policy. The widest             3396 (Ont. S.C.J.), Justice Lauwers              scenario, Plaintiff ’s counsel argued
latitude should be given to the          dismissed the Plaintiff ’s claim in an           that the fitness club failed to meet
allegations in the pleadings in deter-   action for damages against a fitness             the appropriate standard of care
mining whether they raise a claim        club for failing to prevent an assault           under the Occupiers’ Liability Act or
within the policy.                       on its premises.                                 as a matter of ordinary negligence
                                                                                          law in permitting strangers to enter
Since the duty to defend arises          On the night of December 18,                     a private club.
when the underlying complaint            2006, Mr. Coleiro finished his
alleges any facts that might fall        workout and was on his way out of                Justice Lauwers recognized that the
within the coverage of the policy,       the fitness club when he encoun-                 statute “requires neither perfection
what really matters is not the labels    tered an unidentified man and                    nor unrealistic nor impractical
used by the plaintiff, but the true      words exchanged. An altercation                  precautions against known risks” as
nature of the claim                      ensued at which time another                     espoused in the Court of Appeal’s
                                         unidentified assailant joined in and             decision in Kerr v. Loblaws, [2007]
                                         assaulted Mr. Coleiro by punching                O.J. No. 1921. Following this line
The common thread amongst all of         him repeatedly and knocking him                  of reasoning, Justice Lauwers
the factors is that the court must       down the stairs. While no employ-                concluded that such an assault by a
                                                                                          cont’d on next page
continued from page 3
An Eye on the Exits
member (or non-member) on                         Ontario Limitations Act, 2002
                                                                              t            she was suffering from a chronic
another was not common in the                     replaced a varied set of limitation      pain condition and would continue
circumstances.                                    periods, each dependent upon the         to do so indeterminately.          In
                                                  type of claim issued, with a catch-all   January 2005, a treatment plan was
Applying the general duty of care to              two year limitation period running       prepared which documented her
provide reasonably safe premises, to              from the date a claim is discovered,     inability to carry out certain house-
which Mr. Coleiro is entitled,                    subject to some minor exceptions.        hold tasks on a daily basis. In
Justice Lauwers concluded that the                A plaintiff is now barred from suing     August 2005, her plan recom-
fitness club did not owe him a duty               two years after the date in which he     mended indefinite treatment.
to have special security measures in              or she reasonably discovered his or      Everding issued a Statement of
place at its facility. The assault itself         her injury, the act or omission          Claim on August 1, 2007.
was a completely independent act                  causing the injury, the person
on the part of the assailants and                 responsible, and that a lawsuit          The motions judge found that the
could have occurred anywhere. In                  would be appropriate means of            plaintiff discovered her claim for
terms of the Occupiers’ Liability Act,            redress in the circumstances.            ongoing and indeterminate pain, at
Justice Lauwers went on to suggest                                                         the latest, in May 2004 and granted
that no reasonable precautions                    Under the Ontario Insurance Act, an      summary judgment. The motions
could prevent such random acts of                 owner or occupant of a vehicle           judge did not consider the date
violence.                                         involved in an automobile accident       upon which the plaintiff would
                                                  or person present at a scene of an       have been aware that her claim
The Court correctly recognized that               accident (“protected defendants”)        could surpass the $15,000 deduct-
based on the facts of this case, there            cannot be sued for the recovery of       ible for non-pecuniary damages.
was no duty of care that had been                 an injured party’s healthcare            The Court of Appeal held that this
breached.                                         expenses or non-pecuniary damage         constituted a reversible error. The
                Deanna Stea’s practice consists   unless the injured party has suffered    summary judgment was set aside
                of representing and advising      a permanent, serious disfigurement       and the plaintiff ’s claim was
                insurance companies in all        or permanent, serious impairment         restored. The decision suggests that
                aspects of general insurance      of an important physical, mental or      discoverability must be assessed
                liability, including products     psychological function (the “thresh-     from the date that a plaintiff
liability, bodily injury, professional                                                     becomes aware that he or she meets
negligence, occupier's liability, social host
                                                  old”).    Similarly, non-pecuniary
liability, and false arrest/false imprisonment.   awards against protected defendants      all the statutory criteria for recovery
                                                  are subject to a $15,000 deductible.     under the Insurance Act.           The
                                                                                           Court of Appeal has re-opened the
Never too late to book                                                                     door to “last minute” discount
your trip                                                                                  vacations with this decision.
                                                                                                           Eric Adams joined Dutton
How long can a party injured in an                                                                         Brock as an associate in 2009.
automobile accident wait before                                                                            His practice focuses on
bringing a lawsuit? What if the full                                                                       advising insurers on insurance
extent of his or her injuries become                                                                       and reinsurance coverage issues
known only years later? In the                                                             with a particular focus on commercial
decision Everding v. Skrijel, the                                                          general liability policies.
plaintiff filed a claim for injuries                                                        Editors’ note
arising from an automobile
collision over seven years from the
date of her accident. The defendant                                                         E-Counsel reports on legal issues and litigation
moved for summary judgment,                       Ms. Everding was involved in a            related to our institutional, insured and self-insured
arguing that the plaintiff ’s claim               collision on May 24, 2000. Imme-          retail clients.     Dutton Brock LLP practices
                                                                                            exclusively in the field of civil litigation. Any
was statute-barred.         Summary               diately following the accident she        comments or suggestions on articles or E-Counsel
judgment was granted at first                     suffered headaches. These head-           generally can be directed to David Lauder or Paul
instance, but reversed on appeal.                 aches incrementally increased in          Martin. You can find all our contact information
                                                                                            and more at
The Court of Appeal decision                      frequency. By June 2004, she was
provides a useful discussion on the               suffering from headaches everyday.
operation of the Limitations Act,                 After the accident, she began a
2002 and the statutory criteria for               number of rehabilitative programs
recovery in an auto claim in the                  including physiotherapy, massage,                LITIGATION COUNSEL
Insurance Act.                                    chiropractic and cranial sacral           
                                                  massage which continued until                         Dutton Brock LLP
The statutory provisions can be                   2005. By May 2004, she was                   438 University Avenue, Suite 1700
explained fairly simply.    The                   advised by her family physician that            Toronto, Canada M5G 2L9

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