{"id":1227,"date":"2022-01-03T21:26:59","date_gmt":"2022-01-04T01:26:59","guid":{"rendered":"http:\/\/limitations.ca\/?p=1227"},"modified":"2022-01-03T21:27:32","modified_gmt":"2022-01-04T01:27:32","slug":"ontario-evidentiary-issues-on-a-motion-to-add-a-maintenance-contractor","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1227","title":{"rendered":"Ontario: evidentiary issues on a motion to add a maintenance contractor"},"content":{"rendered":"

The Superior Court decision in\u00a0Taylor v. Mayes<\/em><\/a> is an addition to the burgeoning category of decisions in motions to add maintenance contractors after the presumptive expiry of the limitation period.<\/p>\n

The party opposing being added in Taylor\u00a0<\/em>made the standard argument: \u201cthe plaintiff didn\u2019t even enquire about whether there was an independent contractor!\u201d\u00a0 However, the court expressed doubt that the party would have answered the enquiry:<\/p>\n

[<\/a>61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0While HMQ relies on the fact that the defendants never specifically inquired about an independent contractor prior to the expiry of the presumptive limitation period, I am not satisfied that HMQ would have even provided an answer given the history of motions to compel disclosure and relevant information.\u00a0 This is one of the reasons that this case can be distinguished from\u00a0Ali<\/i>.<\/p><\/blockquote>\n

This is an important point.\u00a0 Whether or not the plaintiff asked a particular question per se <\/em>is immaterial to the discovery argument.\u00a0 What matters is whether the party opposing being added has adduced evidence that if the plaintiff had asked the question it would have been answer, and the answer would led to discovery more than two years before the plaintiff brought the motion.<\/div>\n

The court made the point expressly in Vuniqi v. Paramount Property Management et al.<\/em><\/a>:<\/p>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0TQ argued that the plaintiff and her lawyer could have taken a number of \u201creasonable and very simple steps\u201d that would have enabled them to find out earlier that there was a winter maintenance contractor at the plaintiff\u2019s apartment building and to identify it. TQ argued that the plaintiff or her lawyer could have asked Paramount, on the telephone, whether it had a snow removal contractor and that Mr. Butler could have asked Paramount\u2019s insurer\u2019s claims representative, Ms. Roode, on one of the many occasions he communicated with her. TQ also argued that although it is true that Paramount never denied liability for the plaintiff\u2019s accident or indicated to Mr. Butler before March 11, 2019 that it would be seeking contribution or indemnity from another party, Paramount never admitted liability. TQ argued that by doing nothing beyond sending his January 30, 2017 letter, Mr. Butler did not meet the reasonable diligence test.<\/p><\/blockquote>\n

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[<\/a>47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0TQ did not, however, offer any evidence that would enable me to determine when the reasonable person in the plaintiff\u2019s position first would have discovered the claim against TQ. There was no evidence, for example, that Paramount, having sent Mr. Butler\u2019s January 30, 2017 letter to its insurer, subsequently would have provided Mr. Butler or the plaintiff with TQ\u2019s identity or information about the scope of TQ\u2019s responsibilities, if they had asked. There was no evidence to explain why Ms. Roode failed to answer Mr. Butler\u2019s question about whether Paramount had a snow removal contractor. There was no evidence about when Ms. Roode first became aware of Paramount contract with TQ. I have already mentioned that there was evidence suggesting that Paramount was unsure, before the plaintiff was examined for discovery on March 11, 2019, whether the plaintiff fell in an area TQ was contractually obliged to maintain.<\/p>\n<\/blockquote>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Superior Court decision in\u00a0Taylor v. Mayes is an addition to the burgeoning category of decisions in motions to add maintenance contractors after the presumptive expiry of the limitation period. The party opposing being added in Taylor\u00a0made the standard argument: \u201cthe plaintiff didn\u2019t even enquire about whether there was an independent contractor!\u201d\u00a0 However, the court … Continue reading Ontario: evidentiary issues on a motion to add a maintenance contractor<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[124,9,642,222],"class_list":["post-1227","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-party","tag-discovery","tag-maintenance-contractors","tag-ontario-act-s-51b"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1227","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1227"}],"version-history":[{"count":4,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1227\/revisions"}],"predecessor-version":[{"id":1231,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1227\/revisions\/1231"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1227"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1227"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1227"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}