Ontario to exempt Construction Act from limitation period and procedural timeline suspension

On March 20, 2020, Ontario passed O. Reg 73/20 (Regulation) pursuant to section 7.1(2) of the Emergency Management and Civil Protection Act (EMCPA), and suspended the running of limitation periods and procedural timelines in the province. The Regulation is retroactive to March 16, 2020. In our March 25, 2020 article, we discussed the implications of the Regulation for the construction industry. No doubt, an unintended consequence of the Regulation was the suspension of deadlines for the preservation and perfection of liens under the Construction Act (Act), and the uncertainty it created with respect to the release of holdback under section 22(1) of the Act.

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Ontario Suspends Limitation Periods

In light of the unprecedented impact of the novel coronavirus (COVID-19), on March 20, 2020, the Lieutenant Governor made an Order in Council under section 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 suspending limitation periods for the duration of the emergency. The Order in Council also suspends procedural time periods, subject to the discretion of the court, tribunal, or other decision-maker responsible for the proceeding. The suspensions are retroactive to March 16, 2020. A copy of the Order in Council dated March 20, 2020, filed with the Registrar of Regulations, can be downloaded here.

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Supreme Court of Canada determines that limitation period contained in s. 36(4)(a)(i) of the Competition Act is subject to discoverability

In Pioneer Corp. v. Godfrey, 2019 SCC 42, an 8-1 majority of the Supreme Court of Canada determined that the discoverability rule applies to the limitation period in s. 36(4)(a)(i) of the Competition Act, such that it begins to run only when the material facts on which the plaintiff’s claim is based were discovered or ought to have been discovered by him or her by the exercise of reasonable diligence. 

In Godfrey, the plaintiff commenced the main action on September 27, 2010. The proposed class action was brought on behalf of all B.C. residents who purchased Optical Disc Drives or Optical Disc Drive Products between January 1, 2004 and January 1, 2010.

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Doctrine of Special Circumstances still used to add parties after the expiration of a limitation period contained in the Trustee Act

In Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 392, the Ontario Superior Court applied the doctrine of special circumstances to add a defendant to an action six years after the limitation period, as established by s.38 of the Trustee Act, expired.

Mr. Graham passed away shortly after having dental surgery where the medical professionals involved negligently failed to remove a medical sponge from his throat. Although the plaintiffs diligently brought an action within the limitation period, they moved to add the radiologist (Dr. Law) more than six years later. The plaintiffs assert that although the discoverability principle does not pertain to limitation periods under the Trustee Act, special circumstances applied because Dr.

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Court of Appeal Confirms Statutory Limitation Period Applicable to Securities Class Actions

The Court of Appeal for Ontario considered the interaction between the limitation period in s. 138.14 of the OSA and s. 138.3(6) of the Ontario Securities Act (OSA), which provides that multiple misrepresentations may be considered, at the discretion of the court, to constitute a single misrepresentation. In Kaynes v BP, P.L.C., 2018 ONCA 337​, the appellant, a putative representative plaintiff in a class proceeding, sued on fourteen alleged misrepresentations. Eleven of the misrepresentations were made more than three years before the action was commenced. The Court confirmed that s. 138.14(1) is an “event triggered limitation period,” which commences on the making of an oral statement or the release of an impugned document.

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OCA considers limitation period under s. 6(2) of the Arthur Wishart Act in respect of a Replacement Franchise Agreement

The Ontario Court of Appeal’s decision in 2212886 Ontario Inc. v. Obsidian Group Inc.2018 ONCA 670, concerned an appeal from a partial summary judgment involving a franchise dispute. Section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, provides that a franchisee may rescind a franchise agreement no later than two years after entering into the franchise agreement if the franchisor failed to provide the disclosure document. One of the two principal issues respecting liability was whether the two year limitation period ran from the date the parties executed the franchise agreement (in which case they would be out of time), or from the date the parties executed a replacement agreement (in which case the claim was timely).

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Real Property Limitations Act applies to a claim for monies held in a resulting trust, where monies were used to purchase land

In Sinclair v. Harris2018 ONSC 5718, the Court considered whether a claim to recover monies that were loaned for the purpose of purchasing of land, and subsequently held in a resulting trust, is governed by the Real Property Limitations Act or whether no limitation period applies because it is governed by equity.

The plaintiffs brought a claim in favour of the Estate of Ms. Rock, the deceased, alleging that a resulting trust was established when the deceased loaned money to the defendants to purchase a property in Beeton, Ontario (the “Beeton Property”). The property was sold on August 5, 2003 by the defendants.

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