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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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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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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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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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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Divisional Court cautions that seeking declaratory relief is not a means to circumvent applicable limitation periods

In Skylark Holdings Limited v. Minhas2018 ONSC 1568 (Div. Ct.)​, the issue on appeal was whether there is a genuine issue requiring trial that a limitation period had expired where there was a claim for declaratory relief in relation to share ownership. The Divisional Court held that in the context of a limitation period analysis, declaratory relief should be narrowly construed so as to ensure that s. 16(1)(a) is not used a means to circumvent applicable limitation periods. In order to do so, the motions judge is required to assess the essential nature of what the party is seeking.

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