Category: Limitations Act

Bhoola v. City of Vaughan, 2024 ONSC 103

The plaintiff’s home was damaged following a large rainfall in spring 2017. The previous owner had built a rear addition on the home in 1981. The City of Vaughan issued a building permit to the previous owner without obtaining the approval of the Toronto and Region Conservation Authority (TCRA) as required by applicable legislation. The plaintiff claimed against the City, alleging that the City was negligent in a matter that created a situation where damage of this nature was likely to occur. The City brought a motion for summary judgment, arguing that the action was barred by the Limitations Act, 2002. Justice Papageorgiou granted the motion and dismissed the action. Justice Papageorgiou held that the action was barred by both the two-year basic limitation period and the 15-year absolute limitation period.

In terms of objective knowledge of a claim against the City, Justice Papageorgiou found that it arose in 2013 then the plaintiff obtained a report stating that the home was built on fill that was unsuitable for supporting structures. In terms of actual knowledge of the claim, Justice Papageorgiou found that it arose in October 2017 when the plaintiff filed a claim for compensation with the City. Alternatively actual knowledge arose in December 2017 when the plaintiff told an adjuster that he thought the City was liable because it allowed the house to be constructed in a dangerous manner. The absence of TCRA approval was not something that was a hidden defect – it could have been ascertained by asking the TCRA or the City.

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.

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.

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.