Galota v. Festival Hall Developments Ltd. et al., (2016) 352 O.A.C. 140 (CA)

• Judge: Laskin, Gillese and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 17, 2016
• Jurisdiction: Ontario
• Citations: (2016), 352 O.A.C. 140 (CA);2016 ONCA 585

Galota v. Festival Hall Dev. Ltd. (2016), 352 O.A.C. 140 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JL.026

Maria Galota (plaintiff/respondent) v. Festival Hall Developments Limited , Walter Rosati and Louis Yam Man Chu (defendants/appellant)

(C61253; 2016 ONCA 585)

Indexed As: Galota v. Festival Hall Developments Ltd. et al.

Ontario Court of Appeal

Laskin, Gillese and Roberts, JJ.A.

July 21, 2016.

Summary:

On May 13, 2006, Galota broke her arm when she fell off an elevated dance floor at Republik Nightclub. The nightclub was located in a building in downtown Toronto. Republik was a tenant in the building. Festival Hall Developments Ltd. was the landlord and owner. In December 2007 Galota sued Republik for damages for negligence. She claimed that she was injured by the unsafe condition of the dance floor. She did not initially sue Festival Hall. On November 11, 2009, a representative of Republik was examined for discovery. Galota's lawyer then learned for the first time that before opening, Republik had extensively renovated the nightclub, including the dance floor from which Galota fell, and that Festival Hall may have had some involvement in the renovations. Republik Nightclub closed in March 2009. In March 2011, Galota's lawyer learned that Republik's insurer Leeds became insolvent. On November 10, 2011, a day less than two years from the examination for discovery of Republik and five and a half years after her accident, Galota sued Festival Hall for negligence as an "occupier" of the nightclub. Festival Hall moved for summary judgment to dismiss the action on the ground that it was started more than two years after Galota's claim was discoverable, and so was barred by s. 4 of the Limitations Act. The motion judge dismissed the motion. Festival Hall appealed. Festival Hall's main submission was that the motion judge erred by finding Galota "did not show a want of diligence" because she took no steps at all to investigate a claim against Festival Hall until at least three and a half years after her accident. Festival Hall's secondary submission was that the motion judge erred by using his expanded powers on a motion for summary judgment to call for expert evidence on the standard of care of a solicitor prosecuting an occupier's liability claim.

The Ontario Court of Appeal dismissed the appeal. On Festival Hall's main submission, the court agreed with Galota's position. On its secondary submission, the expert evidence called was not material. The motion judge did not rely on it, beyond considering the possible investigative steps recommended by Festival Hall's expert. Nor did either party in this court. The motion judge did not err by finding that Galota's claim against Festival Hall was not discoverable until November 11, 2009, and that she had rebutted the presumption in s. 5(2) of the Limitations Act.

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - See paragraphs 20 to 43.

Limitation of Actions - Topic 3105

Actions in tort - Negligence - Occupiers' liability - See paragraphs 20 to 43.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - See paragraphs 20 to 43.

Counsel:

Jay Skukowski and Alex Reyes, for the appellant;

William G. Scott and Barbara Opalinski, for the respondent.

This appeal was heard on May 17, 2016, before Laskin, Gillese and Roberts, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., on July 21, 2016.