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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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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