CanLII, Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545

Safai v. Bruce N. Huntley Contracting Limited

Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)

and between

Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.

Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.

The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.

Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).

As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.

As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.

In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.

Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action