Skip to content

Brought to you by

Dentons logo

Limitations Law Blog

Updates on key developments on laws involving limitation periods in Ontario.

open menu close menu

Limitations Law Blog

  • Home
  • About us

Commencing a claim in the wrong forum does not suspend the running of a limitation period

By Dentons Limitations Law Group
July 24, 2019
  • Discoverability
Share on Facebook Share on Twitter Share via email Share on LinkedIn

In Benuik v Leamington, 2019 ONSC 1830, the court addressed the issue of whether the law permits the postponing or suspending of a limitation period simply because a plaintiff brought its claim in the wrong forum. The answer is “no”.

In Benuik, the plaintiffs brought an action before the Ontario Municipal Board (OMB) against the defendant municipality in 2009 based on an expert report suggesting that damage to the plaintiffs’ home was caused by, or was related to, vibrations from heavy traffic. In 2010, the defendant responded to the plaintiffs’ statement of claim, pleading that the plaintiffs were in the wrong forum. In January 2018, the OMB declined jurisdiction over the plaintiffs’ claim; one week later, the plaintiffs filed a statement of claim with the Ontario Superior Court. The defendant municipality argued that the plaintiffs’ claim was statute-barred under the Limitations Act, 2002.

The rule for discoverability, under Section 5(1)(a)(iv) of the Act requires a need to know that “a [court] proceeding would be an appropriate means to seek [a] remedy.”  However, the court agreed with the defendant municipality and found that the law does not provide for the postponing or suspending of a limitations period simply because a plaintiff brought its claim in the wrong forum. The court noted that the plaintiffs knew that a proceeding would be an appropriate means to seek to remedy the claim in 2010 when the defendant pleaded that the plaintiffs were in the wrong forum.

In assessing discoverability, the court reiterated the principle that when “a plaintiff fails to exercise the diligence of a reasonable person, the claim is potentially discoverable earlier than the date the plaintiffs had actual knowledge of the claim.” In considering the plaintiffs’ exercise of diligence, the court concluded that a reasonable person in the plaintiffs’ position ought to have discovered the claim in 2009, upon receipt of the expert report suggesting damage to the property was connected to the heavy traffic on the nearby roadway, and not upon discovery that the OMB was the wrong forum for bringing the claim. 

This issue has not yet received appellate consideration. While the issue was before the Court of Appeal in Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, it declined to address the issue because it determined that the plaintiff’s action was not statute-barred for other reasons. We will watch out for any appellate decision on this issue in the future.

Co-authored by Nour Chehab Eddine

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Dentons Limitations Law Group

About Dentons Limitations Law Group

The Limitations Law Blog contains summaries of the latest developments arising from appellate and lower court decisions on limitations law in Ontario. Subscribe today and be one of the first to receive our insights on recent limitations law developments in Ontario.

All posts

RELATED POSTS

  • Discoverability

Court of Appeal for Ontario Addresses the “Appropriate Means” Aspect of the Limitations Analysis

By Robert Kligman
  • Discoverability

Court of Appeal affirms the importance of the “appropriate means” test under s. 5(1)(a)(iv)

By Dentons Limitations Law Group
  • Discoverability

Limitation Periods and Singular Discrete Oppressive Acts

By Ara Basmadjian

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Dentons boilerplate image

Twitter

Categories

  • Acknowledgment
  • Adding a Party
  • Amending Pleadings
  • Attempted Resolution
  • Contribution and Indemnity
  • COVID-19
  • Demand Obligations
  • Discoverability
  • Enforcement of Foreign Judgments
  • General
  • Limitation Periods contained in "Other Acts"
  • Limitation Periods in Federal Court
  • Misnomer
  • Motions to Strike
  • Notable cases in other provinces
  • Special Circumstances
  • Statutory Variation of Time Limits
  • Successors
  • Tolling/Varying Agreements
  • Transitional Provisions
  • Ultimate Limitation Periods

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site