Miaskowski et al. v. Persaud et al., (2015) 342 O.A.C. 167 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Cronk, Pepall and Lauwers, JJ.A.
• Citation: (2015), 342 O.A.C. 167 (CA),2015 ONCA 758
• Date: 13 October 2015

Miaskowski v. Persaud (2015), 342 O.A.C. 167 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.016

Phil Miaskowski, Owen Miaskowski, Eric Miaskowski and Zachary Bell, minors by their litigation guardian, Phil Miaskowski (plaintiffs/appellants) v. Dustaff Persaud and Terrence Catney (defendants/respondents)

(C60285)

Phil Miaskowski, Owen Miaskowski, Eric Miaskowski and Zachary Bell, minors by their litigation guardian, Phil Miaskowski (plaintiffs/appellants) v. Dustaff Persaud and Terrence Catney (defendants/respondents)

(C60308; 2015 ONCA 758)

Indexed As: Miaskowski et al. v. Persaud et al.

Ontario Court of Appeal

Cronk, Pepall and Lauwers, JJ.A.

November 9, 2015.

Summary:

On February 28, 2007, Miaskowski slipped and fell on ice and snow on the driveway of a single-family residential property (the property). At the time, he was employed at the property by Alliance Youth Services Inc., which was owned and operated by Steven Catney (Mr. Catney Jr.). The property was owned by Persaud. Persaud had entered into a written residential lease with Mr. Catney Jr.'s father, Mr. Catney Sr., as tenant in respect of the property. On January 24, 2008, Miaskowski commenced an action against Persaud, claiming that Persaud breached his duty of care as an occupier or owner of the property under the Occupiers' Liability Act and, further, that he had breached a common law duty of care owed to Miaskowski by failing to take any steps to ensure that the property was safe from ice and snow conditions. On March 9, 2010, Miaskowski delivered an amended statement of claim in which he added Mr. Catney Sr. as a co-defendant. On December 18, 2013, Persaud commenced third party proceedings against Mr. Catney Jr. and Alliance. Persaud and Mr. Catney Sr. both moved for summary judgment in the main action, as did Mr. Catney Jr. and Alliance in the third party proceedings. The motions judge granted all three motions. He dismissed the action as against both Persaud and Mr. Catney Sr., as well as the third party claim. Miaskowski appealed the dismissal of his action against Persaud and Mr. Catney Sr.

The Ontario Court of Appeal dismissed the appeal from the order dismissing the action as against Mr. Catney Sr. The court allowed the appeal from the order dismissing the action as against Persaud. The court set aside the motion judge's order regarding Persaud and reinstated the action as against him.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Practice - Topic 5719 ].

Limitation of Actions - Topic 304

Evidence and proof - Burden of proof - [See Practice - Topic 5719 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Practice - Topic 5719 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - Miaskowski slipped and fell on ice and snow on the driveway of a single-family residential property (the property) - At the time, he was employed at the property by Alliance Youth Services Inc. which was owned and operated by Steven Catney ("Mr. Catney Jr.") - The property was owned by Persaud - Persaud had entered into a written residential lease with Mr. Catney Jr.'s father, Mr. Catney Sr., as tenant in respect of the property - Schedule "A" to the Lease provided that "The Tenant .. shall keep the sidewalks in front and at the sides of the premises free of snow and ice" - Miaskowski sued Persaud, claiming that Persaud breached his duty of care as an occupier or owner of the property under the Occupiers' Liability Act (OLA) and, further, that he had breached a common law duty of care owed to Miaskowski by failing to take any steps to ensure that the property was safe from ice and snow conditions - Persaud moved for summary judgment - The motions judge granted the motion and dismissed the action against Persaud - Miaskowski appealed - The Ontario Court of Appeal allowed the appeal and reinstated the action as against Persaud - The court did not agree that no genuine issue requiring a trial arose in respect of the claims against Persaud - Miaskowski's action against Persaud required consideration of the scope and effect of the tenant's obligations under the lease, the landlord's and the tenant's obligations under the Residential Tenancies Act (RTA) and associated regulations, and the nature of Persaud's duties under the OLA, in respect of the property - This, in turn, necessitated consideration of the interrelationship between the RTA and the OLA - The motions judge failed to address several key aspects of this amalgam of relevant considerations - See paragraphs 33 to 56.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - On February 28, 2007, Miaskowski slipped and fell on ice and snow on the driveway of a single-family residential property (the property) - At the time, he was employed at the property by Alliance Youth Services Inc. which was owned and operated by Steven Catney ("Mr. Catney Jr.") - The property was owned by Persaud - Persaud had entered into a written residential lease with Mr. Catney Jr.'s father, Mr. Catney Sr. - On January 24, 2008, Miaskowski commenced an action against Persaud - On March 9, 2010, Miaskowski delivered an amended statement of claim in which he added Mr. Catney Sr. as a co-defendant - Mr. Catney Sr. moved for summary judgment - He argued that Miaskowski's claim as against him was statute-barred due to the expiry of the two-year limitation period under s. 4 of the Limitations Act - The motions judge granted summary judgment and dismissed the action as against Mr. Catney Sr. - Miaskowski appealed - The Ontario Court of Appeal dismissed the appeal - Under s. 5(2) of the Limitations Act, Miaskowski bore the onus of leading evidence to displace the statutory presumption of the date on which he discovered his claim against Mr. Catney Sr. - Miaskowski did not meet the relatively low threshold of showing that he could not, through reasonable diligence, have discovered his claim on the day the act or omission on which the claim was based took place, as contemplated under s. 5(2) - There was no evidence before the motions judge regarding any efforts to ascertain the identity of the tenant prior to the expiry of the limitation period - See paragraphs 13 to 32.

Cases Noticed:

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 20].

Placzek v. Green (2009), 245 O.A.C. 220; 307 D.L.R.(4th) 441; 2009 ONCA 83, refd to. [para. 24].

Longo et al. v. MacLaren Art Centre (2014), 323 O.A.C. 246; 2014 ONCA 526, refd to. [para. 25].

Montgomery v. Van (2009), 256 O.A.C. 202 2009 ONCA 808, refd to. [para. 49].

Taylor v. Allard et al. (2010), 268 O.A.C. 145; 325 D.L.R.(4th) 761; 2010 ONCA 596, refd to. [para. 49].

Estey v. Sannio Construction Co. et al. (1998), 70 O.T.C. 293 (Gen. Div.), refd to. [para. 54].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, Schedule B, sect. 4 [para. 13]; sect. 5(1)(a) [para. 23]; sect. 5(2) [para. 22].

Occupiers' Liability Act, R.S.O. 1990, c. O-2, sect. 3(1) [para. 36]; sect. 6 [para. 37]; sect. 8(1) [para. 38]; sect. 9 [para. 39].

Residential Tenancies Act, S.O. 2006, c. 17, sect. 20(1) [para. 40].

Residential Tenancies Act Regulations (Ont.), Ont. Reg. 517/06, sect. 26(1) [para. 41].

Counsel:

B. Robin Moodie and Bronwyn M. Martin, for the appellants;

Jonathan Kulathungam, for the respondent, Terrence Catney;

David Zarek, for the respondent, Dustaff Persaud.

These appeals were heard on October 13, 2015, before Cronk, Pepall and Lauwers, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Cronk, J.A., and was released on November 9, 2015.