Sandro Steel Fabrication Ltd. v. Chisea, 2013 ONCA 434 (s. 11, Attempted Resolutions)

In Sandro Steel Fabrication Ltd. v. Chiesa, 2013 ONCA 434, the Ontario Court of Appeal upheld the motion judge’s decision that an agreement between parties to have an independent third party resolve a claim or assist in resolving it under section 11(1) of the Limitations Act, 2002, suspends the limitation period until the resolution of the claim, the termination of the resolution process or the termination of the mediation agreement.  

The Court affirmed the following two aspects of the lower court’s decision:

  1. Section 11(1) is triggered when there is a finding that there was an agreement to mediate the claim after a dispute has arisen between parties.
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Sandro Steel Fabrication Ltd. v Chiesa, 2013 ONSC 658 (s. 11, Attempted Resolutions)

**THIS DECISION OF JUSTICE KOKE WAS AFFIRMED BY THE ONTARIO COURT OF APPEAL ON JUNE 21, 2013, BUT THE COURT OF APPEAL DID NOT ENDORSE HOW BROADLY KOKE J. INTERPRETED SECTION 11(1). PLEASE CLICK HERE FOR BLOG POST OF THE COURT OF APPEAL’S DECISION**

In Sandro Steel Fabrication Ltd. v. Chisea, 2013 ONSC 658, Justice Koke held that a mediation agreement stops a limitation period from running by virtue of section 11 of the Limitations Act, 2002.  That section provides that if a person with a claim and a person against whom the claim is made agree to have an independent third party resolve the claim or assist them in resolving it, the basic and ultimate limitation periods provided for in the Act are suspended as of the date the parties enter into the agreement.

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Toronto Standard Condominium Corp. No. 1789 v. Tip Top Lofts Development Inc., 2011 ONSC 7181 (s. 11, Attempted Resolutions)

In Toronto Standard Condominium Corp. No. 1789 v. Tip Top Lofts Development Inc., 2011 ONSC 7181, the plaintiff commenced its action by way of notice of action on June 30, 2010 and a statement of claim was issued on July 29, 2010.  The plaintiff’s claim was founded upon an audit report prepared by a consulting firm retained by the plaintiff and delivered to it on August 15, 2007.  The Court found that this was the date on which the plaintiff discovered its claim.  The plaintiff unsuccessfully argued that the limitation period did not expire on the two year anniversary of the date of discovery because the parties had entered into settlement discussions in August 2007 and therefore section 11 of the Limitations Act, 2002, which relates to attempted resolutions, applied to suspend the limitation period.  In late 2007, the plaintiff prepared a draft Process Agreement that would have provided for third party arbitration of the dispute, but the defendant did not sign the Agreement and therefore it never came into effect.

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Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156 (Discoverability and Tolling Agreements)

In Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156, the Ontario Court of Appeal examined discoverability principles in the context of an action in tort for negligent misrepresentation, and the application of ss. 11 and 22 of the Limitations Act, 2002, which suspend the running of a limitations period in certain circumstances.

The City purchased $10 million in non-bank sponsored asset backed commercial paper (“ABCP”) from the defendants on July 24, 2007, three weeks before the collapse of the Canadian ABCP market. The investment was to mature about two months later but some three weeks after the purchase, the market for this form of investment collapsed.

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