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.
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.
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.”
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.
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.
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.
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.