appeal because appellant failed to commence the appeal within one year of the
assessments. The judge rendered his
decision at the close of the trial on Jan.
13, 2010. The formal judgment was
signed on Jan. 19, and the registry officer
certified a true copy of the judgment on
Jan. 20. Appellant filed its notice of
appeal on Feb. 17, 2010.
HELD: Motion dismissed. The appeal
was not out of time. The 30-day time
limit for appellant to file its notice of
appeal did not commence until the formal judgment was signed. The oral
judgment days earlier did not displace
the date of judgment. In seeking to have
the notice of motion struck because it
lacked any chance of success, the Crown
was essentially seeking summary judgment, which was not available to dismiss
an appeal on the basis of affidavit evidence only.
2786885 Canada Inc. v. Canada,
[2010] F.C.J. No. 1117, F.C.A., Pelletier
J.A., Sept. 10/10. Digest No. 3023-017
(Approx. 5 pp.)
LIMITATION OF ACTIONS
AMENDMENT OF PLEADINGS –
Plaintiff was granted an extension of
time to serve and file an amended state-
ment of claim adding a third party and
a fourth party as defendants in the
main action.
Motions to dismissing plaintiff’s claims
against defendants as statute-barred.
Plaintiff claimed for damages for injuries
incurred when he slipped and fell in the
parking lot of defendant H Inc. in 2001.
He had been advised that responsibility
for clearing the parking lot had been delegated to defendant numbered company,
who had in turn hired defendant B. The
statement of claim issued in 2002 named
only H Inc. In April 2003 plaintiff
obtained an order granting leave to add
the other defendants. An amended statement of claim was drafted but never
stamped or served. The numbered company was added as third party and B’s
company was added as a fourth party. Discoveries of all parties were conducted in
2007. Plaintiff now sought to serve the
amended claim adding the numbered
company and B as defendants.
HELD: Motions denied. Both defendants had been aware of their exposure
since the day after the incident, and of the
order allowing them to be joined as
defendants in the main action, and both
participated fully in discoveries as third
and fourth parties. Plaintiff’s original
counsel clearly intended to add the parties. The failure to join defendants in a
timely fashion was fully explained. The
conduct of the proceedings as a whole and
the nature of the mistake in that context
were special circumstances sufficient
when coupled with the lack of real prejudice to defendants, to justify an extension
of time to issue and serve a new statement
of claim on the numbered company and B.
Chodowski v. Huntsville Profes-
sional Building Inc., [2010] O.J. No.
3773, Ont. S.C.J., Wood J., Sept. 13/10.
Digest No. 3023-018 (Approx. 5 pp.)
Appeal from the dismissal of appellant
insurer’s application to dismiss respondent’s personal injury action as statute-barred. On Jan. 4, 2003, respondent was
struck in the shoulder and arm by the side
mirror of a passing vehicle that left the
scene. Respondent was unable to identify
the vehicle or its owner. The collision
occurred in the course of respondent’s
employment. On Jan. 20, 2003, respondent submitted a report of injury to the
Workers’ Compensation Board, initiating
a claim for benefits. On Jan. 29, the Board
advised appellant that it might bring an
action on behalf of respondent. The claim
for workers’ compensation benefits was
accepted and respondent received disability benefits for five months. No action was
commenced by the Board. On June 19,
2003, the Board instructed the plaintiff to
report his accident to appellant. On Jan.
13, 2005, the Board advised respondent
that it would not pursue the subrogated
legal action for the injuries he sustained
in the accident. On June 2, 2005, respondent commenced his own action against
appellant. A chambers judge ruled that
the action was not statute-barred. The
judge found that time had not started to
run pursuant to s. 3 of the Limitation Act
(B.C.), as the identity of the driver and
owner of the vehicle was unknown, and
alternatively, the running of time was
postponed until after the Board’s decision
not to pursue an action.
HELD: Appeal dismissed. The judge
erred in finding that s. 3 postponed the
running of time, as respondent’s action
was commenced against appellant rather
than the unknown driver, and thus the
identity of the driver was not a relevant
consideration. Nonetheless, the limitation
period was suspended pursuant to para.
6( 4)(b) of the Act. Respondent’s right to
sue appellant was not extinguished by his
claim for workers’ compensation benefits.
The intent of ss. 9 and 10 of the Workers’
Compensation Act (B.C.) was to preserve
the injured worker’s right of action against
a tortfeasor while providing the Board
with the subrogated right to bring such an
action in order to avoid respondent concurrently pursuing both benefits and a
civil claim for damages. Plaintiff was
unable to commence an action after his
election of benefits without jeopardizing
receipt of the benefits. Therefore, he was
not able to bring a civil action, and subs.
6( 4) of the Limitation Act allowed for the
postponement of the limitation period.
Yaremy v. Insurance Corp. of British
Columbia, [2010] B.C.J. No. 1881,
B.C.C.A., per Garson J.A. (Ryan J.A.
concurring), reasons dissenting by
Hinkson J.A., Sept. 24/10. Digest No.
3023-019 (Approx. 19 pp.)
the fire pit could constitute a danger
under the Occupiers’ Liability Act (Ont.).
In addition, he found that the tenants
were the occupiers of the premises and
were therefore responsible to appellant
for permitting the danger that caused him
to fall into the pit. He held the tenants
liable for 50 per cent of the damages suffered by appellant. He also found appellant 50 per cent at fault for his own damages. However, he held that the landlord
owed no duty of care to appellant and dismissed the action against him. The judge
concluded that the landlord had no control over the premises, was not in physical
possession of the premises and had no
maintenance obligations based on the
rental agreement which provided that the
tenants would reside on the property and
pay all costs therein in lieu of rent.
HELD: Appeal allowed. The trial judge
erred in finding that the landlord owed no
duty of care to appellant. As the landlord
admitted that he was an occupier of the
premises within the meaning of the Act, he
had a duty of care to appellant under subs.
3(1) of the Act. The landlord breached the
duty he had to appellant as he created the
dangerous fire pit and allowed the danger to
continue. Furthermore, despite the lease
agreement, under the Landlord and Tenant Act (Ont.) the landlord was responsible
for the maintenance and repair of the premises. The landlord was jointly and severally
responsible with the tenants for 50 per cent
of the damages suffered by appellant.
Taylor v. Allard, [2010] O.J. No.
3884, Ont. C.A., per Goudge J.A.
(Rosenberg and Feldman JJ.A. concur-
ring), Sept. 17/10. Digest No. 3023-020
(Approx. 6 pp.)
REAL PROPERTY
RIGHT OF WAY – A finding that
respondent was entitled to a right of
way over property owned by appellant
was set aside and the matter remitted
for trial.
Appeal from a judgment granting
respondent declaratory, injunctive and
ancillary relief. In 2003, respondent pur-
chased a building from appellant. The
building was rented to a third party who
operated a restaurant. In 2005, respondent
also purchased a parcel of land immedi-
ately behind and contiguous to the restau-
rant. The parcel was used on a seasonal
basis as a patio. In order to gain access to
the restaurant and patio from the rear, it
was necessary to travel over another prop-
erty owned by appellant. That property
consisted of a building and an alley. The
alley led to the patio and the back of the
restaurant. Just before the end of the alley
and the patio was an entrance to an under-
ground parking garage attached to appel-
lant’s property. Appellant erected a barri-
cade in the alley preventing respondent
from gaining access to the rear of the prop-
erty. Respondent claimed that it had
acquired a right of way over the alley at the
time of purchase in 2003. However, it was
not conveyed at the time of initial transfer.
Respondent submitted that the certificate
of title was unilaterally rectified in the
2005 acquisition of the patio parcel. The
chambers judge relied on the Statute of
Frauds and granted respondent a declara-
tion that it possessed the right of way and
injunctive relief to prevent appellant from
interfering with respondent’s use of the
right of way.
Classifieds
NEGLIGENCE
MISSING HEIRS
Cogan & Assoc. International
probate research, locators of
missing heirs. Tel: 519-770-0500,
Fax: 519-770-0059.
www.heirtrace.com
OCCUPIER’S LIABILITY – A land-
lord owed a duty of care to a visitor to
rental premises.
Appeal from the dismissal of appellant’s action against respondent landlord.
Appellant attended a party held by
respondent tenants at a residence which
they rented from the landlord. While at
the party, appellant, who was intoxicated,
tripped and fell into a fire pit and was
severely burned. Appellant sued the tenants and the landlord for the injuries he
suffered. At trial, his damages were
assessed at $265,000. The trial judge
found that the cinder blocks which ringed
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POSTPONEMENT OF TIME – Lim-
itation period for respondent’s action
against appellant insurer was post-
poned because of his claim for workers’
compensation benefits.
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PCLAW ACCOUNTING
