If you were injured in a slip and fall accident due to negligence by a property owner or another person, you may seek damages to compensate yourself and family members for losses associated with your injury.
Under the law, an injured person must commence their claim for damages within two years of the date they discovered they have grounds to make a claim against the defendant. In most cases, claims are filed two years from the date the accident and injury occurred. However, there are legitimate circumstances where a claim may be commenced more than two years after an accident, such as when the injured person did not become aware until later, that their injury is serious and permanent.
In Piccone v. Jack Astor’s
(2017), the plaintiffs, Mr. and Ms. Piconne, brought a motion to extend the time for their Statement of Claim because one of the defendants in the lawsuit, the snow removal contractor, was unintentionally not served the Claim within the limitation period. The defendant contractor opposed the plaintiff’s motion on the grounds that the delay will prejudice its defence.
In March 2007, the plaintiff was injured when she slipped on ice or snow and fell in a Jack Astor’s parking lot in Etobicoke. As a result, in 2009, she commenced a claim for damages against the owner of the plaza, the restaurant and the snow removal contractor, North Country Property Maintenance Inc. The plaintiff’s lawyer improperly served the Claim on North Country by having it delivered to Jack Astor’s. Consequently, North Country alleged they were unaware of the action until February 2015, despite evidence that North Country’s insurer, Lombard Canada Ltd., were made aware of the accident in 2007 and the insurer received correspondence and documents between the plaintiff and the other defendants.
At the time of the slip and fall accident, Fima Development owned the plaza and North Country was under hire to perform winter maintenance services for Jack Astor’s. After she fell and was injured, Ms. Piccone provided a detailed statement of the incident and her injuries to Jack Astor’s and the restaurant’s insurance adjuster prepared an Occurrence Report. Lombard was subsequently informed of the incident by Fima’s insurer, ING Insurance. Between March and June, 2008, ING and Lombard exchanged communications pertaining to liability issues and settlement of the plaintiff’s claim. In this correspondence, ING indicated they would not contribute to a settlement and requested Lombard to engage directly in settlement discussions with the plaintiff.
On April 2, 2007, Lombard’s adjuster advised the plaintiffs that Lombard had contacted North Country (its insured) and North County agreed to submit copies of their logs recording their salting of the parking lot to Lombard. There were several communications between Lombard and the plaintiffs, as well as between ING and the plaintiffs, which included the forwarding of Ms. Piccone’s medical records to both insurers. During this period, ING twice wrote to the plaintiff with an interest to settle the claim, but Mr. Piccone informed Lombard that Ms. Piccone continued to suffer a lot of pain, was only able to return to work on a part-time basis, and they were not ready to settle. In November 2008, Lombard closed the file on the matter.
In March 2009, the plaintiff’s lawyer filed a Notice of Action and Statement of Claim which named North Country as one of the defendants, but these were served on North Country at the location of Jack Astor’s, which did not constitute proper service of the Claim per the Rules of Civil Procedure. In August 2012, Jack Astor’s filed a Statement of Defence which included a Crossclaim against North Country and which identified the same incorrect address for North Country used by the plaintiffs’ lawyer.
The plaintiffs’ lawyer died in 2014. As a result, they retained new counsel, who reviewed the file and expressed concern that North Country had not received a Statement of Defence and had thus not been properly served. Accordingly, the plaintiff’s counsel served the current Notice of Motion to extend the time to serve the Claim to North Country.
The key issue to be decided by the Court was whether an extension of time for service of the Claim is in the interests of just resolution of this dispute without resulting in unfairness or prejudice to North Country. The plaintiffs argued that North Country and Lombard were aware of the Claim since at least June 2007 and had the opportunity to investigate the claim and preserve their records.
The motions judge was not convinced that allowing the extension would adversely impact North Country’s ability to defend in trial and thus prevent ‘just resolution’ of this case. The judge also noted that the delay in serving North Country was unintentional, and when the plaintiffs’ original lawyer delivered the Notice and Statement of Claim to Jack Astor’s, none of the defendants notified him that this was the incorrect address for North Country. Further, as soon as the new lawyer noticed the irregularity, he promptly served the documents to the correct address and brought the current motion. The judge found that these actions would ‘cure the irregularity’.
It was concluded that the extension will not cause prejudice to North Country, and will promote resolution of the case and facilitate the plaintiffs’ access to justice. Accordingly, the judge ordered that the extension of the time to serve the claim will be allowed as requested by the plaintiffs.