Leave to commence derivative action allowed where continuous breaches occurred under an agreement

In Sax v Rick Aurora, 2019 ONSC 3573, the Divisional Court considered the application of the Limitations Act, 2002 in the context of a derivative claim brought under section 246 of the Business Corporations Act for continuing breaches under an agreement. The plaintiff worked as a real estate agent for the defendants. He incorporated a numbered company to create a space for builders to sell pre-construction real estate to purchasers. His employer and the numbered company entered into an agreement whereby a portion of every commission earned by his employer operating in the numbered company’s space would be paid to the numbered company.

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Family Law Act claims commenced under s. 61 are a separate cause of action in the context of personal injury litigation

When it comes to claims brought by family members pursuant to s. 61 of the Family Law Act, RSO 1990, c. F.3. (“FLA”), the latest word from an Ontario court indicates that the two year limitation period applies to those claims as separate causes of action. In Malik v. Nikbakht, 2019 ONSC 3118, the defendant appealed a Master’s order that permitted the plaintiff to amend the statement of claim to add a claim pursuant to s. 61 of the FLA after the expiry of the limitation period. Section 61 allows family members of a party injured or killed by the fault or neglect of another to recover pecuniary losses that flow from a family member’s death or injury.

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Court of Appeal Clarifies Limitations Period in Alberta Privacy Actions

This post originally appeared on Dentons Data blog.

On May 12, 2019, the Alberta Court of Appeal released a decision from a summary dismissal application that should resolve any confusion that may have arisen at the crossroads of that province’s limitations act and its privacy legislation, the Personal Information Protection Act, SA 2003, c P-6.5 (“PIPA”).

In Alberta, in order to have a cause of action related to a privacy breach claim, claimants must first go before the Office of the Information  and Privacy Commissioner of Alberta (“AB OIPC”) and obtain a final order against an organization.

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Court of Appeal distinguishes between new causes of action and alternative forms of legal relief in determining whether a party can amend its pleadings after the expiry of the limitation period

In Klassen v Beausoleil, 2019 ONCA 407, the Court of Appeal reiterated the principle that a party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the limitation period. The Court affirmed that where the amendment involves adding alternative relief on the same material facts, it is integrally related to the existing claim, and therefore, no prejudice arises.

Rule 26.01 provides that “[O]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” The expiry of a limitation period is one form of non-compensable prejudice.

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Not applying the objective test under s. 5(1)(b) of the Limitations Act, 2002 amounts to a reviewable error, Court of Appeal finds

In Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, the Court of Appeal concluded that the motions judge erred in principle because she did not apply the modified objective test contained in s. 5(1)(b) of the Limitations Act, 2002 in applying the test for discoverability. Instead, her analysis was a purely subjective inquiry, which amounted to a legal error.

This decision serves as a reminder that both aspects of section 5 must be considered in order to determine discoverability: the subjective test under s. 5(1)(a) – when did the plaintiff have knowledge of the claim? And the modified objective test under s.

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Court of Appeal continues to discourage motions to strike brought under r. 21.01(1)(a) on a limitation issue, except in narrow circumstances

In Clark v. Ontario (Attorney General), 2019 ONCA 311, the defendant attempted to bring a motion under rule 21.01(1)(a) on a limitation issue before it had filed its defence. The motion judge dismissed the motion to strike on the basis that the claim was time-barred, which was upheld on appeal. The Court of Appeal for Ontario reiterated its position that commencing a motion under r. 21.01(1)(a) on limitations matters is discouraged, except for very limited situations where pleadings are closed and the facts are not in dispute. Because the basic limitation period is premised on the discoverability rule, the application of which raises mixed questions of fact and law, there are very few circumstances in which a limitation issue under the Limitations Act, 2002, can properly be determined under r.

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Master reiterates the importance of due diligence in the context of discoverability

In a recent unreported decision in Cooper v. City of Toronto, (9 April 2019), Toronto CV-13-495260 (Ont. SCJ) the Master rejected the plaintiff’s attempt to add Toronto Hydro as a third party to the action, five years after it knew or ought to have known about the claim. This decision highlights the well-known principle that a plaintiff is required to act with due diligence in determining if she has a claim, and a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate.

The incident occurred on December 31, 2011, when the plaintiff allegedly walked into a light pole on a city sidewalk in Toronto.

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