Ontario Superior Court of Justice Applies Misnomer to Substitute Plaintiff

In Picov and Picov Farms Ltd. v Generac Power Systems Inc. et al., 2020 ONSC 852 (“Picov Farms”), the Ontario Superior Court of Justice applied the doctrine of misnomer to grant an order amending the Statement of Claim to remove the existing plaintiffs and substitute in their place a different legal entity as the new plaintiff.

On December 25, 2013, a fire occurred in an electrical generator located at 57 Fifth Concession Road East in the Town of Ajax (the “Property”). In December 2015, the plaintiffs, Barry Picov and Picov Farms Ltd. (“Picov and Picov Farms”), commenced an action in time for damages caused by the fire.

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Suspension Order Extended to September 11, 2020 and Decoupled from Duration of Emergency Declaration

On June 5, 2020, the Lieutenant Governor in Council amended Ontario Regulation 73/20 (the “Suspension Order”), made under section 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “Act”), which temporarily suspends limitation periods and other procedural deadlines.

There are four important amendments to the Suspension Order:

  1. the duration of the Suspension Order is decoupled from the duration of the emergency declaration. This is a welcome amendment and addresses the need for predictability and notice. Indeed, further to our blog post of May 29, 2020, we had supported a going forward “delinking” of the Suspension Order from the duration of the state of emergency in order to remove the confusion arising from dual clocks when determining the expiry date of the suspension.
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Extension of the Suspension Order to June 14, 2020

We have previously reported on the suspension of limitations periods and procedural deadlines in Ontario effective March 16, 2020 pursuant to Ontario Regulation 73/20, as amended (the “Suspension Order”) made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “Act”). The Suspension Order is subject to limitations in its duration and scope, as discussed in our earlier posts, which are listed at this link.

With respect to duration, the Suspension Order will continue in effect until June 14, 2020, because:

  • by its terms, the period of suspension under the Suspension Order is tied to the “duration of the emergency.”
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Draft Federal Legislative Proposals Regarding Time Limits and Other Periods due to COVID-19

Further to our article of March 27, 2020, Ontario Regulation 73/20 made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9 does not apply to suspend deadlines or limitation periods under federal law. The Government of Canada has recently sought to retroactively fill that gap.

On May 19, 2020, the Government of Canada published draft legislative proposals which would temporarily suspend or extend certain time limits set out in federal legislation where the COVID-19 pandemic may make compliance difficult or impossible. The proposed statute would extend limitation periods in civil proceedings before the courts along with regulatory time limits.

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Extension of the Suspension Order to June 2, 2020

Limitations periods and procedural deadlines in Ontario have been suspended since March 16, 2020 pursuant to Ontario Regulation 73/20 (the “Suspension Order”) made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9 (the “Act”). The Suspension Order was amended on April 9, 2020 by Ontario Regulation 137/20 and on May 1, 2020 by Ontario Regulation 194/20 to deal with the application of the Suspension Order to three specific circumstances, including most notably a carve out for the Construction Act, RSO 1990, c C.30 and the regulations made under it effective from and after April 16, 2020.

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Ontario Superior Court of Justice Summarizes Principles of Misnomer and Discoverability

In Reimer v Toronto (City), 2020 ONSC 1661, the Ontario Superior Court of Justice provided a helpful summary of the analysis that is brought to bear on a motion for an order to correct a misnomer or, in the alternative, to add a proposed defendant after the apparent expiry of a limitation period through discoverability.

The court confirmed that a proper misnomer analysis involves careful scrutiny of the Statement of Claim and that a lack of particulars will weigh heavily against a finding of misnomer.

Where the plaintiff relies on discoverability, the court underscored the plaintiff’s evidentiary burden to provide a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable due diligence.

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Limitation Periods and Singular Discrete Oppressive Acts

In Zhao v Li, 2020 ONCA 121, the Court of Appeal for Ontario considered how the two-year basic limitation period under section 4 of the Limitations Act, 2002, SO 2002, c 24, Sched B applies to oppression remedy claims under the Ontario Business Corporations Act, RSO 1990, c B.16 when the claims arise from a series of oppressive acts alleged to have occurred at different times.

The appellant was a shareholder in a dry cleaning business. She commenced a lawsuit against the respondent based on three alleged acts or omissions: (1) the respondent unilaterally dissolved the business without the approval, authority, or knowledge of the appellant; (2) the respondent failed to pay the proceeds of the sale or transfer of the business; and (3) the respondent failed to account for the profits of the business.

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