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Civil Litigation - Limitation of actions - Time - When time begins to run - Discoverability

Thursday, September 15, 2016 @ 8:00 PM  

Appeal by Festival Hall Developments (Festival) from the dismissal of its motion for summary judgment dismissing Galota’s action against it as statute-barred. Galota broke her arm on May 13, 2006, having fallen from an elevated dance floor at Republik, a nightclub in a building owned by Festival. Galota retained a lawyer and immediately sued Republik, but did not immediately sue Festival. Republik defended the action and delivered a statement of defence in May 2008. Neither Republik nor its insurance adjuster alleged any other party was responsible for Galota’s injuries. At a November 2009 discovery, Galota learned for the first time that before opening, Republik had extensively renovated the nightclub, including the dance floor, and that Festival had some involvement in the renovations. Republik closed in March 2009. Republik’s insurer became insolvent. Less than two years after the discovery took place, and five and one-half years after the accident, Galota sued Festival as an occupier of the nightclub. Festival’s motion for summary judgment was dismissed. The judge found that the limitation period of two years started to run against Galota on the date of the discovery. He noted that Galota was not put on notice of, and did not show a want of diligence in investigating the potential involvement of the landlord in the design and construction of the elevated dance floor.

HELD: Appeal dismissed. The judge’s conclusion that Galota’s claim against Festival was not discoverable until after the November 2009 discovery took place, and not statute-barred when she sued Festival in November 2011, was reasonable. Galota initially sued the party occupying the premises. Her claim was an insured claim. No one alleged any other party was potentially liable. Festival’s potential liability as owner and landlord was not obvious. Additional inquiries on Galota’s part about the ownership of the nightclub premises and the parties involved in its construction and renovation would not have led to the discovery of information about the involvement of Festival earlier. Such information could only come from Republik or Festival itself.