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.

Sunnybrook Health Sciences Centre v. Buttcon Limited et al, 2021 ONSC 6061

This action arises from the alleged improper selection, design, and installation of a steam boiler at Sunnybrook Hospital. The boiler was installed in 2012, and the action was commenced in 2017. The defendants brought a summary judgment motion for dismissal of the action on the basis that it was barred due to the limitation period having expired. Sunnybrook argued in response that it could not have discovered the claim until receipt of an expert report, and that the claim was brought in time on that basis. Justice Vella dismissed the motion, holding that there was a genuine issue for trial. In support of their motion the defendants had put forth a single affidavit by one of the defence counsel, with attached documents that were intended to speak for themselves. The plaintiff put forward affidavit evidence from its Director of Plant Operations, its engineering expert, and a law clerk from its counsel’s firm. In failing to submit affidavits from those with direct knowledge, and instead relying on a solicitor’s affidavit, the defendants did not put their best foot forward and were shielded from cross examination. On the other hand there was credible evidence from the plaintiff that there were genuine issues requiring a trial on the limitation issue.

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.

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).

Malik v. Nikbakht, 2021 ONCA 176

The plaintiff, his wife, and their three children were injured in a motor vehicle accident. They all commenced litigation. The plaintiff was driving at the time of the accident, so he had different counsel than his wife and children. The plaintiff initially claimed for only his own injuries/damages. The wife and children claimed for their own injuries and also for damages pursuant to the Family Law Act (FLA). Four years after the accident, the plaintiff brought a motion to amend his claim to include FLA damages. Master Wiebe granted the motion and allowed the amendment. On the defendant’s appeal to a judge of the Superior Court, Justice Cavanagh allowed the appeal and dismissed the underlying motion to amend. Justice Cavanagh’s decision was upheld by the Ontario Court of Appeal. Justice Paciocco, writing for the Court, reasoned that the FLA claim was not merely a claim for additional damages arising from the existing negligence claim and that it was advanced more than two years after the expiry of the applicable limitation period.

Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447

The Court of Appeal was asked to interpret s.7(1)(a) of the Limitations Act, 2002, which provides that a two-year limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition. The plaintiff had strangled his child to death while suffering from mental illness and psychotic delusions. He was taking an anti-depressant drug manufactured by the defendant at the time. Almost seven years after the incident, he sued the manufacturer for damages, alleging that the drug had caused or contributed to his psychosis. The defendant brought an unsuccessful motion for summary judgment, arguing that the claim was statute-barred by the Limitations Act, 2002. The motion judge held that the limitation period did not begin to run until the plaintiff received an absolute discharge in the context of the criminal matter, which was less than two years before the civil claim against the manufacturer was issued. On appeal, the Court of Appeal held that the plaintiff was able to appreciate the nature of the potential litigation proceedings, and that the Limitations Act barred his action. The Court of Appeal was compelled by the fact that the plaintiff had instructed numerous criminal and family lawyers in the years before his absolute discharge, and had consulted others regarding the possibiltiy of suing the manufacturer. The appeal was allowed and the underlying action was summarily dismissed.

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.

Rooplal v. Fodor, 2018 ONSC 4985

The Plaintiff brought a motion to add TTC Insurance Company Limited (“TTCICL”) as a Defendant in order to assert a claim for unidentified motorist coverage. At issue was whether the Plaintiff’s claim against TTCICL was statute barred pursuant to the Limitations Act. Justice Chiappetta concluded that the limitation period would begin the day after the Plaintiff made an indemnification claim which TTCICL failed to satisfy. Since the Plaintiff brought the motion to add TTCICL as a Defendant before making a claim that TTCICL failed to satisfy, the court held that the limitation period had not expired.