Category: Discoverability

Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681

The plaintiff suffered a property loss when its barn collapsed. The statement of claim for damages was issued more than two years after the date of the incident. The plaintiff argued that the claim was not discovered until it received an expert report explaining the reason for the loss. On a motion for summary judgment, Justice Lemon disagreed and held the claim was statute-barred since the plaintiff knew or ought to have known that it had a claim before it received the expert report. On appeal, the Ontario Court of Appeal upheld the motion decision. The Court of Appeal affirmed that discoverability does not require a plaintiff to know the exact act or omission by the defendant that caused the loss. What the plaintiff needs to know is that: an incident occurred that resulted in the loss; that the defendant did or failed to do something to cause that loss; and having regard to the nature of the loss a court proceeding is an appropriate means to seek a remedy. In this case the record showed that the plaintiff knew shortly after the collapse that the barn collapsed due to faulty design, construction, and/or inspection during construction, and that the defendants were responsible for these aspects of the development and delivery of the barn.

McAuley v. Canada Post Corporation, 2021 ONSC 4528

This action arises from a slip and fall on a municipal sidewalk in front of the post office in Huntsville. The plaintiff sued Canada Post for damages. Canada Post initiated third party claims against two parties, and two additional parties were added by fourth party claims.

Following discoveries, the plaintiff moved for leave to amend his statement of claim to include the third and fourth parties as defendants. One of the third parties and one of the fourth parties opposed the motion on the basis that any direct claims the plaintiff may have against them were statute -barred by the provisions of the Limitations Act. Justice Boswell held that the claims were statute-barred by the Limitation Act, and dismissed the plaintiff’s motion. Justice Boswell found that the plaintiff was aware within about two weeks of the fall, of the circumstances potentially implicating the subject third and fourth party, and that a reasonable person in the circumstances would have advised his lawyer of the circumstances approximately seven months sooner than the plaintiff actually did. In obiter, Justice Boswell accepted that the effect of O. Reg. 73/20 was to extend any limitation period running as of March 16, 2020, by 183 days.

Luwish v. Graywood Group, 2019 ONSC 3735

The plaintiffs claimed that cracks appeared in the walls of their commercial premises as a result of the construction of a high rise condominium on an adjacent property. The construction was completed on June 9, 2015. The plaintiffs’ claim to their insurer for repair was denied in 2014. This action against the defendant constructors of the condominium was commenced on July 5, 2017. The defendants brought a summary judgment motion on the basis that the claim was statute-barred by operation of the Limitations Act, 2002. Justice Faieta granted summary judgment for the defendants, holding that the plaintiffs were presumed to have discovered the loss no later than March 11, 2014, when it was reported to their insurer. Justice Faieta rejected the plaintiff’s argument that the claim was discovered only after receiving an expert report on the cause of the damage. The claim was dismissed.

Miano v. Campos, 2019 ONSC 1816

The plaintiff was injured by a passing vehicle while on the shoulder of a highway. He could not identify the owner/operator of the vehicle and commenced an action against his own insurer pursuant to the unidentified motorist provisions of his auto policy. The insurer later obtained the police file, which potentially identified the driver of the passing vehicle. The plaintiff commenced an action against the driver, who brought a motion to strike under Rule 21 on the grounds that the action was statute-barred by the expiry of the two-year limitation period. Justice Faieta dismissed the motion, holding that the limitations issue was improperly raised on a Rule 21 motion because application of the Limitations Act is an issue of mixed fact and law to which there was factual disagreement. He also held that the limitation period could not be held to run until the date when the plaintiff knew or ought to have known the identity of the owner or operator of the vehicle that injured him.

Presley v. Van Dusen, 2019 ONCA 66

The plaintiff brought a small claims action against the defendant excavation contractor for damages relating to allegations of negligent design, installation, approval, and inspection of a septic system. The trial judge dismissed the action on the ground that it was statute barred by operation of the Limitations Act, 2002. The trial judge found that a reasonable person would have discovered the claim by a date more than three years before the claim was commenced and reasoned that having made this finding, he was not required to consider when a proceeding was an appropriate means to remedy the claim. The Divisional Court upheld the trial judge’s holding. The defendant appealed. The central issue on appeal was whether the courts below failed to conduct a proper analysis as to when the plaintiffs knew or ought to have known that a legal proceeding would be an appropriate means to remedy their alleged losses. The Court of Appeal noted that it had repeatedly held that consideration of when a proceeding was an appropriate means to remedy a claim is an essential element of the discoverability analysis and held that the Small Claims Court and Divisional Court erred in failing to do so. The Court of Appeal went on to hold that in the circumstances the plaintiffs did not know, and a person in their situation would not reasonably have known, that a proceeding was an appropriate means to remedy their losses until at earliest a date less than two years before the claim was commenced. Therefore, the action was not stature barred and it was remitted back to the Small Claims Court for determination on its merits.

Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725

At issue on this appeal was the application of the “appropriate means” element of the discoverability test under the Limitations Act. Intact Insurance moved for summary judgment to dismiss the action of the Respondent for indemnification under a commercial insurance policy for losses arising from a flood to its business premises. Intact argued that the Respondent’s action was statute-barred as it was commenced after the expiration of the two year limitation period. The motion judge dismissed Intact’s motion and declared that the limitation period did not begin to run until Intact formally denied the claim (and that this was the point at which the Respondent became aware that a proceeding would be an “appropriate means” to remedy its loss). The Ontario Court of Appeal allowed the appeal. The Court of Appeal held that the limitation period for a property insurance claim generally runs from the date of the loss or damage (and not from the time of the denial). The Court of Appeal also reviewed the law regarding when the general presumption about the limitation period can be set aside due to promissory estoppel.

Nygard International Partnership v. Hudson’s Bay Company, 2018 ONSC 5143

Justice Perell held that HBC’s failure to make payment each week was not a renewing breach of contract perpetually being repeated each week. Rather, once payment was not made, HBC was immediately liable to be sued for default in payment. However, Justice Perell went on to find that there was also a breach of the requirement to make periodic payments and thus a series of individual breaches with individual limitation periods.