Condominium Security Company added as Defendant in Slip and Fall Accident

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Helen Wong slipped, fell and fractured her left ankle on January 11, 2014, while walking by the entrance to the condominium building in which she lived. " On January 30th, the injured woman sent a notice letter to the Town of Richmond Hill and also completed a property search and identified the owner of the building as York Regional Standard Condominium Corporation No. 1008 (YRSCC 1008). When the municipality notified Ms. Wong that they were not responsible for maintaining the property where the fall occurred, in July 2014, she gave notice to YRSCC 1008. At this point, she was informed by them that Salivan Landscape Ltd. was responsible for snow removal and maintenance of the premises.

One year later, in July 2015, YRSCC 1008 sent an email to the plaintiff's counsel stating that its insurance adjuster concluded that the accident was caused by an accumulation of snow and/or ice and that YRSCC 1008 had a contract in place with Salvian for removal of snow and ice. " Based on the known information at the time, Ms. Wong issued a claim on July 20, 2015, naming YRSCC 1008 and Salivan as the defendants. " Then, YRSCC 1008 and Salivan delivered their defences on October 29, 2015, and November 10, 2015, respectively, both cross-claiming the other as defendants. " However, neither proceeding took place because the plaintiff learned that other parties may have liability in her accident.
Two months after Salivan delivered its defence, the plaintiff began to receive information suggesting that other parties may be involved in this case. " First, the plaintiff received an email from a representative of Salivan's insurance company, containing a number of documents including: a contract showing that it was another company, Brookfield, that was responsible for YRSCC 1008's snow removal at the time of the accident; and an incident report prepared by G4S, the company responsible for security at the building on the day of the accident.

The incident report described how the security guard, who was stationed at the gatehouse, observed Ms. Wong's fall on the security camera and alerted a guard who was patrolling the residence to go to her assistance, which he did. The report also included the fact that the property manager was immediately notified of the incident, and he promptly contacted Salivan to salt the entire property to prevent another incident from happening. There was no reference in the report indicating that G4S played any role in keeping the property 'winter safe'.

On February 1, 2016, counsel for YRSCC 1008 wrote to the plaintiff's counsel to inform them that G4S had salt available to them and was expected to use it when necessary. They provided evidence of this agreement, in the contract with G4S, which noted that if the security guard was provided with a snow shovel, broom or packaged ice, they perform as follows: "1. They clear their immediate work area of snow and ice, to reduce the possibility of a slip-and-fall injury. 2. The main entrance door to the building is clear enough to allow for someone to walk through without undue risk."

Based on this new information, the plaintiff was granted a motion to amend her Statement of Claim to add the new defendants and accordingly, the plaintiff gave notice of such to the new defendants, including G4S and Brookfield. " In" Wong v Salivan Landscape Ltd." (2016)," G4S appealed the plaintiff's motion to amend her Statement on the basis that the two-year limitation period had expired. The plaintiff challenged G4S' appeal, arguing that until the February 1, 2016 email, she was unaware of G4S or their potential negligence regarding the incident. The plaintiff also asserted that the evidence shows she acted reasonably and diligently completed all appropriate investigations to determine the parties involved.

Relying on the incident report, which was provided three days prior to the expiration of the limitation period, G4S asserts that the plaintiff was aware of the fact that there was a security guard on duty at the time of the accident and also knew the identity of the guard. They contend that the plaintiff could have attempted to confirm the guard's duties by asking at the gatehouse or sending a letter to G4S.

As a result, there were three key issues the Court had to consider:
  1. Was the level of investigation conducted by the plaintiff reasonable and appropriate in the circumstances?

  2. Would obtaining information after the incident report have allowed the issuance of a claim against G4S in the three days before the limitation period expired?

  3. Did the limitation period against G4S only begin to run when the plaintiff became aware of G4S' obligations and possible breach?

Justice Haberman first analyzed the incident report provided by G4S and noted that there was nothing in it to suggest that the company's responsibility went beyond what was done by the security guards that night, particularly with regards to property maintenance. Therefore, the judge disagreed that the report was sufficient proof that the plaintiff should have made more inquiries about the guard's duties.

Justice Haberman asserted that the key issue was whether or not G4S should have even been on the plaintiff's radar as another potential defendant. If the plaintiff had no reason or grounds to believe that G4S may have had duties that were breached relating to her fall, how can she be blamed for not making inquiries about their duties? The question then was how far must a plaintiff go to ensure that they have captured all possible defendants before the expiry of the limitation period?

The judge referenced the decision in" Fennell v. Deol," where the court concluded that "while due diligence is a factor that informs the analysis of when a claim ought to have been reasonably discovered, lack of due diligence is not a separate and independent reason for dismissing a plaintiff's claim as statute-barred." Justice Haberman also referenced the decision in" Madrid v. Ivanhoe Cambridge Inc., where it was noted that it was not "in the interests of justice to impose an overly muscular level of pre-discovery due diligence"¦"

Justice Haberman concluded that there was no reason why the plaintiff, as a resident of the condominium, would expect that the security staff would be in some way, liable for a slip and fall due to ice on the property, particularly when there was another company contracted to perform winter maintenance. The judge found no basis for the plaintiff to have inquired about G4S's duties and added that doing so would have been unconventional.

With regards to G4S's assertion that the plaintiff missed the two year limitation period, the judge pointed out that the period was triggered only after Ms. Wong became aware of the security company's involvement, which was not until February 2016, and thus was not statute-barred. " However, even if based on G4S's assertions that the plaintiff should have been aware of their involvement, the limitation period would have been triggered on January 8, 2016 when Ms. Wong received the G4S incident report (just three days before the expiry of the presumptive limitation period).

Considering all these factors, the judge ruled to grant the plaintiff's motion to amend her Statement of Claim to add G4S and two others, as defendants. Justice Haberman also advised that it may be unwise for G4S to block a plaintiff from adding them as a defendant, as based on the facts of a specific case, as they "are effectively inviting residents of their clients' buildings to automatically bring them into any and all law suits against condominiums within which they function for alleged negligence of any kind" rather than face the risk of later finding out that they were implicated.

Completing due diligence to gather as many facts about your case before officially filing a claim is one of the most important steps in a negligence action. " It is also one of many reasons why it is prudent to consult with a knowledgeable and experienced personal injury lawyer promptly after you have been injured in an accident.

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