A Notice of Objection filed in response to a passing of accounts application does not constitute a “proceeding” or a “claim” under the Limitations Act, 2002

​In Wall v Shaw, 2018 ONCA 929, the Divisional Court considered for the first time whether the two-year limitation period contained in the Limitations Act, 2002, applies to a notice of objection served in response to a passing of accounts application under the Ontario Estates Act and the Rules of Civil Procedure. The Court held that a notice of objection filed in response to an application by an estate trustee to pass accounts is not the commencement of a “proceeding” or “claim” within the meaning of the Limitations Act, 2002, and therefore is not statute barred, even if the accounts are more than two years old.

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Interlocutory Motions: When is a Finding of Fact on a limitations issue Final?

In Prescott & Russell (United Counties) v David S. Laflamme2018 ONCA 495​, the Court of Appeal for Ontario held that interlocutory motions requiring a finding in respect of a limitations issue does not, in fact, mean that the motions judge has made a final and binding finding on that limitations issue. Accordingly, the issue is still to be determined at trial.

The plaintiff brought a motion under Rule 5.04(2) for an order adding WSP Canada Inc. (“WSP”) as a defendant in an ongoing action. WSP argued that the 2-year limitation period had already expired. The motions judge held that the plaintiff could add WSP as a defendant to the action because of the discoverability principle.

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“Suspicions” not good enough to trigger discoverability under s. 5(1)(a)(iv)

In Nelson v. Lavoie, 2018 ONSC 4489, the defendants brought a summary judgment application on the basis that the plaintiff’s claim was statute barred under the Limitations Act, 2002. The plaintiff, an employee of Hydro One, consulted with the defendants, two financial advisors, in order to transfer her Hydro One pension into an Individual Pension Plan (“IPP”). In 2009, the plaintiff consulted with a bookkeeper and an accountant who told her that the IPP may not be complaint with the Income Tax Act. The plaintiff retained legal counsel who requested confirmation from the defendants that the IPP was complaint.

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Ontario Court of Appeal prefers motions to strike a claim based on a limitations defence be brought under Rule 20

In Brozmanova v Tarshis, 2018 ONCA 523, the plaintiff sought damages of $1.1M from the defendants, a plastic surgeon and an employee of the surgeon’s medical practice. The plaintiff alleged that Dr. Tarshis performed surgical procedures on her, for which she paid him directly as the services fell outside of those covered by OHIP. She further alleged that in 2009 she learned that Dr. Tarshis had submitted to OHIP charges for treating her for two conditions; however, she claimed that she never suffered from those conditions and the claims submitted were fraudulent. In 2009, she was informed by OHIP that entries for those conditions would be removed from her medical record.

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Discovery of Loss, Injury or Damage in the Context of Rectification Claims

In Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 202, the Ontario Court of Appeal considered when the limitation period in relation to claims for rectification begins to run.

The appellant Mr. Alguire sought a declaration that his $5,000,000 key man insurance policy (the “Policy”) with Manulife Financial, included inflation protection. Mr. Alguire’s position at trial was that he had asked that the Policy be specifically designed to ensure that the value of the death benefit grew over the course of his life. He submitted that the Policy provided him with immediate $5,000,000 coverage together with inflation protection over the long term.Manulife argued that the Policy did not include inflation protection, and that any indication that it did had been made in error and did not accord with the actual agreement between the parties.

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Landmark OCA decision on s. 18 of the Limitations Act, 2002

The Ontario Court of Appeal released a landmark decision in Mega International Commercial Bank v. Yung, 2018 ONCA 429, in respect of whether the discoverability principle under s. 5 applies to a claim for contribution and indemnity under s. 18 of the Limitations Act, 2002.

Justice Paciocco held that s. 18 creates a presumed start date for the running of the limitation period. That presumed limitation period start date will result in a claim for contribution or indemnity being statute barred two years after the party seeking contribution or indemnity is served with a claim in the proceeding in which contribution or indemnity is sought, unless that party proves that the claim for contribution or indemnity was not discovered and was not capable of being discovered through the exercise of due diligence until some later date. 

Before this decision was released, there was a divide in the case law regarding the interpretation of s.

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Ontario Court of Appeal sheds some light on the appropriateness of bringing a Rule 21 motion based on a Limitations Defence

​It has been held that limitation period questions are typically not appropriate for determination under Rule 21.01. Unless there are no material facts in dispute, a limitation period issue should normally be determined after the close of pleadings (as a limitation period is a defence which should be pleaded) and by way of motion for summary judgment or trial.  In Salewski v. Lalonde , 2017 ONCA 5115, the Court of Appeal for Ontario observed that as the discoverability issue is one of mixed fact and law, there may well be no circumstance “in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear that the facts are undisputed.

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