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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Application of the appropriate means test in an action to enforce a foreign judgment

In Grayson Consulting Inc v Lloyd, 2019 ONCA 79, the Court of Appeal considered when a proceeding would be an “appropriate means to remedy a loss” in the context of a claim commenced to enforce a foreign judgment where a Mareva injunction had also been granted.

Grayson obtained default judgment against the respondent in South Carolina on August 20, 2014 (“SC Judgment”). While certain appeals were taken against certain other defendants in the initial action (final appellate decision took effect on March 29, 2016) no appeal was taken from the SC Judgment. In December 2017, Grayson commenced proceedings in Ontario in respect of the SC Default Judgment and also obtained a Mareva injunction against the defendant.

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Court of Appeal affirms the importance of the “appropriate means” test under s. 5(1)(a)(iv)

In Presley v. Van Dusen, 2019 ONCA 66, the Court of Appeal for Ontario affirmed the importance of the appropriate means test under s. 5(1)(a)(iv) of the Limitations Act, 2002, and confirmed that superior knowledge and expertise sufficient to delay the commencement of proceedings is not restricted to “strictly professional relationships;” rather, plaintiffs are entitled to rely on the expertise of persons who are members of non-traditional professions or not professions at all in order to demonstrate that it was reasonable to rely on such expertise to delay commencing a claim.

The appellants, Janice Presley and Robert Frederick, brought a claim against Jack Van Dusen, and others, for the negligent design, installation, approval and inspection of their septic system.

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2019: Fifteen Years Later and the Ultimate Limitation Period is Engaged!

While it may be the year of the Pig, 2019 also marks the year of the Ultimate Limitation Period! Undiscovered claims that occurred on or before January 1, 2004 (the date the Limitations Act, 2002 came into force), became ultimately statute barred on January 1, 2019 as a result of s. 15 of the Act.

The Act introduced an ultimate limitation period of 15 years that starts to run from the day the act or omission on which the claim is based took place. No proceeding can be commenced once the ultimate limitation period has concluded, irrespective of when the claim was discovered (subject to some enumerated exceptions contained in s.

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Doctrine of Special Circumstances still used to add parties after the expiration of a limitation period contained in the Trustee Act

In Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 392, the Ontario Superior Court applied the doctrine of special circumstances to add a defendant to an action six years after the limitation period, as established by s.38 of the Trustee Act, expired.

Mr. Graham passed away shortly after having dental surgery where the medical professionals involved negligently failed to remove a medical sponge from his throat. Although the plaintiffs diligently brought an action within the limitation period, they moved to add the radiologist (Dr. Law) more than six years later. The plaintiffs assert that although the discoverability principle does not pertain to limitation periods under the Trustee Act, special circumstances applied because Dr.

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