In Toronto Standard Condominium Corp. No. 1789 v. Tip Top Lofts Development Inc., 2011 ONSC 7181, the plaintiff commenced its action by way of notice of action on June 30, 2010 and a statement of claim was issued on July 29, 2010. The plaintiff’s claim was founded upon an audit report prepared by a consulting firm retained by the plaintiff and delivered to it on August 15, 2007. The Court found that this was the date on which the plaintiff discovered its claim. The plaintiff unsuccessfully argued that the limitation period did not expire on the two year anniversary of the date of discovery because the parties had entered into settlement discussions in August 2007 and therefore section 11 of the Limitations Act, 2002, which relates to attempted resolutions, applied to suspend the limitation period. In late 2007, the plaintiff prepared a draft Process Agreement that would have provided for third party arbitration of the dispute, but the defendant did not sign the Agreement and therefore it never came into effect.
The Court disagreed with the plaintiff’s argument and noted that the settlement discussions entered into by the plaintiff and defendant did not involve an enforceable agreement to have an independent third party assist in resolving their claim and therefore, could not fall within the ambit of section 11 of the Act.