Rowe v. 1225064 Ontario Limited, 2022 ONSC 5036

The defendant winter maintenance contractor moved to dismiss the plaintiff’s action on the basis of a limitations defence. The plaintiff slipped and fell in a parking lot at a No Frills. She sued the property owner within the 2 year limitation period, but issued the action against the winter maintenance contractor 2 years and 9 months after the incident. Justice Centa granted summary judgment and dismissed the plaintiff’s action against the winter maintenance contractor. Justice Centa was critical of the plaintiff for failing to provide her own evidence, and instead submitting an affidavit from a law clerk at her lawyer’s firm. Justice Centa also reasoned that a person in the plaintiff’s position ought to have learned of the winter maintenance contractor’s existence and identity within 6 months of the incident. The failure by the plaintiff and her counsel to take reasonable steps to learn of the contractor until after the 2 year limitation period had expired did not toll the limitation period.

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.

Lucarelli v. Morrison, 2021 ONSC 5579

The plaintiffs’ house burned down while it was being built in 2012. They made a claim to their insurer under their home owners’ policy, which settled in 2013 for an amount less than the policy limit. They were allegedly advised by their insurer at the settlement meeting that they could sue their broker for negligence to recover further amounts. They signed a final release at that time. On the two year anniversary of the claim settlement, the plaintiffs commenced this action against their insurer and its outside lawyers, for negligent misrepresentation they alleged occurred during the settlement meeting. Their insurer brought a motion for summary judgment on the basis that the final release was a complete bar to the action and that the two-year limitation period started on the day of the fire and therefore the claim was not brought in time. Justice Lococo dismissed the motion, holding that there were triable issues that could not be decided on summary judgment. Regarding the release, he held that the insurer ought to have put forth affidavit evidence from each claims advisor that was present at the subject settlement meeting. Regarding the limitation period, he held that the claim was for negligent misrepresentation by the insurer at the settlement meeting, not the fire, and that the claim was brought within two years of that action arising.

Taylor v David, 2021 ONSC 3264

The plaintiff underwent jaw surgery in 2004. She commenced a personal injury action in February 2020. The defendants brought a motion for summary judgment, arguing that the action was statute-barred by operation of the Limitations Act. Justice Diamond reviewed the law regarding the absolute 15-year limitation period and the exceptions to it for willful concealment by a defendant, and for periods where a person lacks capacity. He granted the defendants’ summary judgment motion, holding that the plaintiff failed to prove that any of the exceptions would apply. The FLA claim of the plaintiff’s son, who did not reach the age of majority until the age of 2008, was also dismissed because it was derivative of the primary plaintiff’s claim which was barred.

Taylor v. Mayes, 2021 ONSC 2239

The plaintiff was injured in a motor vehicle accident on Highway 401 and sued the owner and the operator of the vehicle that struck him for damages. The defendants issued a third party claim against the Province of Ontario. Nearly five years after Province delivered its defence, the defendants sought to add the contractor hired by the Province to perform maintenance on the roadway. Justice Muszynski granted leave for issuance of the third party claim. The Province had not pleaded in its statement of defence that it relied on a contractor for maintenance of the subject roadway. Justice Muszynski found that the defendants could not have known about the contractor before they received documentation from the province in 2019 (three years after commencement of the third party reasoclaim against the Province).

London Transit Commission v. Eaton Industries (Canada) Company, 2020 ONSC 1413

The plaintiff sued London Transit Commission (LTC) for environmental contamination. LTC was served with the statement of claim on May 22, 2013. LTC  issued a third party claim against Eaton (the former owner of the land) on March 16, 2016. Eaton brought a motion for summary judgment, arguing that the claim was barred by the limitation period. LTC argued that the claim was not discoverable. Justice Mitchell granted summary judgment, finding that LTC did not act with the due diligence required of a reasonable person with its abilities and in its circumstances, and therefore did not rebut the presumption under s. 18 of the Limitations Act, 2002.

Lee v. Castro, 2020 ONSC 1257

The plaintiff alleged to have sustained injuries in a motor vehicle accident and commenced an action for damages against the driver of the other vehicle involved in the accident. The accident took place on January 25, 2017, and the statement of claim was issued on January 25, 2019. Several months later, in November 2019, the plaintiff sought to add Ford Credit Canada Company as a defendant to the action, as it was an owner of the defendant vehicle. Master Losefo held that the claim against Ford Credit was statute-barred by the Limitations Act, 2002 because the plaintiff reasonably ought to have discovered ownership earlier, and in fact, was advised of ownership in October 2018. Master Losefo dismissed the plaintiff’s motion to add Ford Credit as a defendant.

Rumsam v Pakes, 2019 ONCA 748

The plaintiff attended the defendant hospital for treatment of a wrist injury. Five days later she received a mailed copy of an x-ray report showing a wrist fracture, which was unsigned. Approximately three years later, she reached the age of majority. Nearly two years after that, she commenced an action for damages against the defendant hospital and the doctor who assessed her at the hospital. In their statement of defence, the defendants pleaded that the report was reviewed by an additional physician at the clinic who attempted to contact the plaintiff to advise her of the x-ray findings. More than three years later, the hospital advised the plaintiff of the identity of the doctor who reviewed the x-ray report. A year after receiving this information, the plaintiff moved to amend the statement of claim to add the reviewing doctor as a defendant. The existing defendants opposed the motion on the basis that the claim as against the proposed defendant was statute-barred by the Limitations Act. The motion judge held that it was not because the plaintiff did not have sufficient identifying information of the proposed defendant until one year before the amendment motion. The decision was reversed on appeal. The Court of Appeal reasoned that plaintiff failed to provide evidence that she would not have identified the reviewing doctor’s identity sooner had she exercised reasonable diligence on learning of the involvement of a second doctor.

Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635

The Court of Appeal held that business interruption claims are not subject to a rolling limitation period. The appellant insureds commenced two actions for insurance coverage under a CGL policy issued by the respondent insurer, which provided coverage for “direct loss from any Peril” including business interruption loss and loss of property due to theft or wrongful handling. The trial judge dismissed the first action on its merits. In the second action, the trial judge dismissed the property claim as time-barred, but allowed the business interruption claim to proceed in part, reasoning that business interruption claims were subject to a rolling limitation period which preserved some of them. The insureds appealed on other issues and the insurer cross-appealed on the rolling limitation issue. The Court of Appeal dismissed the appeals but allowed the cross appeal, holding that business interruption claims are not subject to a rolling limitation period. The question is not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in further breaches of contract. The limitation period started on the day the insureds knew that they had suffered a loss or damage, despite the fact that the extent of damages may not have been known to them with precision.

Rockford v. Haque, 2019 ONSC 474

The plaintiff was in a motor vehicle accident on August 17, 2019. She commenced an action for damages on November 24, 2014. The defendant argued that the claim was statute-barred due to the expiry of the applicable limitation period. The plaintiff argued that the claim was not discoverable until late 2012 because that was when she was first diagnosed with fibromyalgia. Justice Pollack accepted the plaintiff’s position and held that the limitation period started to run in December 2012 when the plaintiff received a medical opinion that noted the presence of chronic pain and a poor prognosis for full recovery to pre-accident function, as that was the first time that the plaintiff could have known that her injuries might surpass the threshold.