Limitations Law

Emails can satisfy the acknowledgement requirement and Forbearance can postpone discoverability of a claim

Posted on August 11, 2019 By Christina Porretta
Categories: Acknowledgment, Discoverability

In University Plumbing v Solstice Two Limited, 2019 ONSC 4276, the Superior Court addressed two questions: (i) whether an email can satisfy the acknowledgement requirement under s. 13(1) of the Limitations Act; and (ii) whether a promise to forbear commencing an action affects discoverability of a claim under s. 5(1)(a)(iv) of the Act. The answer to both questions is yes.

The plaintiff contractor alleged that the defendant project owner owed it money and was in breach of trust under the Construction Lien Act. The plaintiff commenced the action in 2015. The defendant argued that the cause of action accrued on August 30, 2012, the date the invoice was issued and that the action was statute-barred.

Commencing a claim in the wrong forum does not suspend the running of a limitation period

Posted on July 24, 2019 By Christina Porretta
Categories: Discoverability

In Benuik v Leamington, 2019 ONSC 1830, the court addressed the issue of whether the law permits the postponing or suspending of a limitation period simply because a plaintiff brought its claim in the wrong forum. The answer is “no”.

In Benuik, the plaintiffs brought an action before the Ontario Municipal Board (OMB) against the defendant municipality in 2009 based on an expert report suggesting that damage to the plaintiffs’ home was caused by, or was related to, vibrations from heavy traffic. In 2010, the defendant responded to the plaintiffs’ statement of claim, pleading that the plaintiffs were in the wrong forum.

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

Posted on June 29, 2019 By Christina Porretta
Categories: Amending Pleadings

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.

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

Posted on June 7, 2019 By Christina Porretta
Categories: Adding a Party, Amending Pleadings

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.

Court of Appeal Clarifies Limitations Period in Alberta Privacy Actions

Posted on May 29, 2019 By Emily Shilletto
Categories: Notable cases in other provinces

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.

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

Posted on By Christina Porretta
Categories: Amending Pleadings

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.

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

Posted on May 15, 2019 By Christina Porretta
Categories: Discoverability

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.