“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 

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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. 

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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)

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Limitation period for contribution and indemnity begins to run when defendant served with claim, even if defendant had prior knowledge of the claim

An application judge was recently tasked with having to determine whether the two-year limitation period for contribution and indemnity under s. 18 of the Limitations Act, 2002, could start earlier if the claim for contribution and indemnity was discovered prior to the defendant being served with the plaintiff’s claim. The judge held that it could not.

In Insurance Corp. of British Columbia v. Lloyds Underwriters, 2017 ONSC 670, the Insurance Company of British Columbia (ICBC) commenced an application against Lloyds to determine which of the two insurance companies was responsible to respond to a personal injury claim for indemnity under an insurance policy.

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OCA clarifies the Applicability of s. 5(1)(a)(iv) in Professional Negligence cases

In Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, the Court of Appeal for Ontario allowed a client’s lawsuit against an accounting firm to continue, despite the fact that the two-year limitation period had expired before the action was commenced. While a motion judge had dismissed Presidential’s lawsuit on summary judgment as the limitation period had expired, the Court of Appeal reversed that decision, finding the accountant’s attempts to mitigate the client’s damages in the year after receiving the fines tolled the limitation period.

The facts in this case are important. The respondents filed the appellant’s corporate tax returns after their due date.

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