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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Ontario Court of appeal resolves conflicting limitation periods between the Trustee Act and Limitations Act, 2002

​In Levesque v. Crampton Estate, 2017 ONCA 455, the Court of Appeal for Ontario resolved that theTrustee Act supersedes the Limitations Act2002 when both limitation periods apply. Because section 38(3) of the Trustee Act is set out in the Schedule to the Limitations Act, 2002 it prevails in the event of a conflict.

This case concerned a crossclaim by a tortfeasor against the estate of a deceased wrongdoer for contribution and indemnity. The estate brought a motion to dismiss the crossclaim under section 38(3) of the Trustee Act. Section 38(3) establishes an absolute limitation period of two-years starting from the death of the wrongdoer.

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Court of Appeal weighs in on jurisdiction over claims under the Residential Tenancies Act

​In Letestu Estate v Ritlyn Investments Limited, 2017 ONCA 442, the Ontario Court of Appeal considered whether an action for damages in a slip and fall case is statute barred by the one-year limitation period under the Residential Tenancies Act (RTA) or the two-year limitation period under the Limitations Act, 2002. The court’s determination hinged on whether the Landlord and Tenant Board (the “Board”) has exclusive jurisdiction over claims under the RTA. The court concluded that it did not. In reaching its determination, the court relied on subsection 207(1) of the RTAwhich stipulates as follows:

A person entitled to apply under the Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction…

Since the damages claimed by the appellant estate exceeded the monetary jurisdiction of the Board, the appellant was entitled to commence the proceeding in the Superior Court where the two-year limitation period applied.

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10-year limitation period applies to claims for the return of deposits

In Harvey v. Talon International Inc., 2017 ONCA 267, the Court of Appeal was faced with the interpretation of theReal Property Limitations Act in order to determine whether that Act governed claims for the refund of deposits towards property. The plaintiffs entered into agreements of purchase and sale for residential units from the defendant. The plaintiffs subsequently requested to terminate their earlier agreements as a result of material changes and commenced an application for the return of their deposits. One of the plaintiff’s, Ms. Yim, sought to amend her notice of application to claim statutory rescission more than two years after the date on which such a claim was discovered.

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