Tyszko v St. Catharines (City), 2023 ONSC 2892

The plaintiff sued the City for property damages arising from drainage issues. The City argued that the 2-year limitation period barred the claim, and that the 15-year ultimate limitation period also barred the claim because the storm sewers in question were installed in 2002. Justice Bordin granted the motion on both grounds.

Regarding the ultimate limitation period, Justice Bordin rejected the plaintiff’s arguments that the flooding and/or failure to rectify were continuing or series of acts of negligence. A singular act of negligence was at issue: the installation and completion of the storm sewers in 2002. The action was commenced in July 2021, making it out of time.

Regarding the two-year limitation period, Justice Bordin held that the plaintiff had sufficient knowledge that he had suffered damages by January 2018 (the date of a letter to the City from counsel retained by the plaintiff, stating that surface water was backing up from the street to the house during heavy rainfalls). There was no evidence that a process was underway to determine the cause of the problem or to compensate the plaintiff. The limitation period was not tolled simply because the City did not send the plaintiff a formal denial.

Morris v Prince, 2023 ONSC 3922

This action arises from an accident between a pedestrian and a motor vehicle. The plaintiff was crossing a crosswalk and was struck by a turning vehicle. The driver was charged under the Highway Traffic Act for making an unsafe turn. He pleaded guilty and was convicted of the charge. He conceded his negligence in the context of this personal injury action. The plaintiff and defendant driver argued that the City was negligent in maintaining an appropriate level of lighting. Following a trial, Justice Mitchell dismissed the action as against the City, holding that the intersection and the lighting were in a reasonable state of repair. Although two luminaires were not working, there was sufficient illumination from all other sources of light to have enabled an ordinary driver exercising reasonable care to detect the plaintiff while he was standing at the intersection and while he traversed the crosswalk. The driver’s HTA conviction required an admission that the driver did not check to ensure his turn was safe before her turned. The driver’s windows were tinted and he only saw the plaintiff out of the front window after he started to turn.

The plaintiff was awarded damages in excess of $2 million. He was 42 years old at the time of the accident and worked at TD Bank in IT services. He suffered a serious brain injury and was in a medically induced coma for a few days after the accident. He had not returned to work at any point since the 2015 accident. The damages awarded were:

  • General Damages: $330,000 plus interest
  • Special Damages: $58,134.71 (agreed upon)
  • Past Income Loss: $16,800 (net)
  • Future Income Loss: $775,520
  • Future Care Costs: $773,191 (following AB decuction)
  • FLA Damages to Partner: $70,000 plus interest
  • FLA Damages to Mother: $10,000 (net) plus interest
  • FLA Damages to Sister: $5,000 (net) plus interest

Justice Mitchell also rejected the argument that the plaintiff’s settlement of the AB claim was improvident. He settled for $840,000, leaving $700,000 in attendant care benefits. Justice Mitchell did not find any evidence that the plaintiff acted with malicious intent or bad faith.

Wong v. Lui, 2023 ONCA 272

The plaintiffs sued various defendants after they purchased a home with alleged defects. One of the defendants, the City of Toronto, opened building permits related to the property in 1987 and 2017. The plaintiffs purchased the home in 2019. The City brought a motion under r. 21.01(1)(a) to strike the claims arising from the 1987 permits, arguing that the claims were barred by operation of the 15 year ultimate limitation period. The 15 year ultimate limitation period was created by the Limitations Act, 2002, and came into force in 2004. The plaintiffs, who were ages 31 and 39 as of the date of purchase, argued that the limitation period did not start to run for the younger plaintiff until she turned 18 in 2006. The motion judge accepted the plaintiffs’ position and held that the claims were not barred. The Court of Appeal overturned the motion decision, holding that the claims were barred by operation of the 15 year ultimate limitation period. The Court of Appeal reasoned that the plaintiff did not have any crystallized claim while she was younger than 18 because she did not own the subject property at that time.

Section 15(4)(b) of the Limitations Act only applies to persons who are minors and have a claim during the 15 year period.

Reimer v. City of Toronto, 2023 ONSC 484

The plaintiff slipped and fell twice in close succession on February 7, 2017 – once on a sidewalk and once on a roadway in or near a crosswalk. At the material time the City contracted with D. Crupi & Sons Ltd. for winter maintenance of the roadway, and with Maple-Crete for winter maintenance of the sidewalk. Maple-Crete subcontracted its work to Royalcrest. The plaintiff gave notice of her claim to the City on July 19, 2018. Nothing was done to identify possible additional defendants until January 2019 at which time the plaintiff’s lawyer spoke to an adjuster for the City who did not have information about the identities of potential additional defendants. On January 9, 2019 the plaintiff issued a statement of claim naming the City and “John Doe Maintenance Company” as defendants. On March 13, 2019 the City advised the plaintiff’s lawyer about the involvement of Crupi and Maple-Crete. The plaintiff brought a motion to add Crupi and Maple Crete as defendants in September 2019. Maple-Crete first learned of the incident on September 26, 2019 when it was served with the motion to add it as a defendant. Maple-Crete opposed the motion on the basis that the limitation period had expired. Master Muir dismissed the motion, holding that the statement of claim did not point the litigation finger at Maple-Crete, even when affording an objective and generous reading of the claim.

The plaintiff brought an unsuccessful appeal of the motion decision. In the reasons on appeal Justice Corbett affirmed Master Muir’s reasons, and held that Master Muir correctly found that expiration of the limitation period was a complete bar to adding the party. In the circumstances of the case, it was reasonable for Master Muir to find that the requirement to exercise reasonable diligence to identify contractors began on or about the date of loss and could not be used to extend the limitation period for more than four months.

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.