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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Khalid v 2262351 Ontario Inc.: Third party discoverability grounded in reasonability

Introduction

In negligence-based actions, defendants routinely issue third party claims for contribution and indemnity to reduce their liability exposure. As a result, the plaintiff can commence a claim believing certain defendants to have caused the plaintiff’s loss, but, after successive third party claims, learn that several other persons might have contributed to the loss. To increase the prospect of recovery, the plaintiff often moves to add these third parties as defendants, long-after the impugned act or omission took place.

In these circumstances, third parties should consider whether to oppose a motion to be added as a defendant pursuant to section 21(1) of the Limitations Act, 2002:

21 (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

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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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The Discoverability Principle in the Context of Breach of Contract Requiring Third Party Satisfaction

In Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, the Court of Appeal considered “discoverability” within the meaning of s. 5(1) of the Limitations Act, 2002 in the context of a breach of contract. Chief Justice Strathy confirmed that the limitation period for a breach of contract does not necessarily begin from the date of the breach (which was the trigger under the former Limitations Act, RSO 1990, c. L. 15). Rather, the date of the act or omission giving rise to the breach only makes up one factor under the statutory test:

… the limitation period does not begin to run until all of the factors enumerated in s.

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