Update on Limitation Periods – Where have we been and where are we headed?

by Jessica DiFederico, Michael Cremasco | Oct 23, 2019

Introduction

Although the Limitations Act, 2002 (the “Act”)[1] has now been in force for almost 20 years, the manner in which it should be interpreted and applied continues to be refined by the courts. We will examine some recent trends in the case law, particularly on what it means to have “discovered” a claim and how the application of this concept may differ depending not only on the circumstances of the case, but also on the circumstances of the individual with the claim.

Background on Limitation Periods

The two-year limitation period is set out in the Limitations Act, 2002. Section 4 of the Act states that a proceeding “shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

Section 5(1) discusses the concept of discovery, indicating that a claim is discovered on the earlier of:

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Under section 5(2), the person with the claim is presumed to know of the matters listed in 5(1)(a) on the day the act or omission in question took place, unless the contrary is proven.

The two year limitation period therefore begins to run on the day the claim was discovered. The date of discovery is the earlier of when the plaintiff had knowledge of the matters listed in 5(1)(a), and when a reasonable person with the abilities and in the circumstances of the plaintiff ought to have had knowledge of those matters.[2] The Supreme Court of Canada has described discoverability as “a general rule applied to avoid the injustice of precluding an action before the person is able to raise it.”[3]

Much of the controversy (and case law) regarding limitation periods deals with the concept of discoverability. Although courts continue to struggle with what exactly it means to “discover” a claim, they have consistently held that a plaintiff must take steps to investigate the matters referred to in section 5(1)(a). A plaintiff is required to act reasonably and with due diligence in investigating her claim. The assessment of whether the plaintiff has acted reasonably in discovering her claim will depend on both the claim at issue as well as the particular circumstances of the plaintiff (see below for further discussion on the circumstances of the plaintiff).[4]

Discoverability and Appropriate Means

Over the past few years, there has been a building body of case law – particularly from the Court of Appeal – pertaining to section 5(1)(a)(iv) of the Limitations Act, 2002 and when the plaintiff knew or ought to have known that a proceeding would be an “appropriate means” to remedy the alleged injury, loss, or damage.

The Court of Appeal provided some guidance on how to interpret the words “appropriate means” in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (“Markel”). In Markel, the court considered when the limitation period began to run for a loss transfer from one insurer against another for statutory accident benefits paid to an insured. The court held that “appropriate” must mean “legally appropriate”.[5] It held that it would be inappropriate to allow a party to delay a proceeding for some “tactical or other reason” beyond two years from when the claim was fully ripened.[6]

In 2016, the Court of Appeal had another opportunity to consider the appropriate means requirement in two key cases.

In Brown v. Baum, 2016 ONCA 325 the defendant Dr. Baum performed surgery on the plaintiff. The plaintiff had complications following her surgery and Dr. Baum performed further procedures to try to improve her outcome. The plaintiff sued Dr. Baum more than two years after her initial surgery, but within two years of when Dr. Baum last treated her to correct her complications. The court concluded that because the defendant physician was continuing to treat the plaintiff to fix the problems which arose from the initial surgery to (hopefully) eliminate her damage, it would not have been appropriate for the plaintiff to sue the doctor at that time because he might have been successful in correcting the complications and improving the outcome of the initial surgery. It was not simply the ongoing treatment relationship which would prevent the discovery of the claim; rather it was the fact that the doctor was engaging in good faith efforts to remediate the damage which could have avoided the need for a claim altogether.

In 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, the defendant, Mr. Day, used the 407 ETR highway but had a long and consistent history of not paying his debts to 407 on time. Under the Highway 407 Act, 1998,[7] the 407 ETR has two options for collecting overdue payments: one is a civil action and the other, known as license plate denial, is to have the Registrar of Motor Vehicles refuse to issue a vehicle permit to any individual with outstanding debt to 407 ETR. On three prior occasions, Mr. Day was placed into licence plate denial and each time, facing expiry of his vehicle permit, he paid his outstanding debt. There was one invoice from 2010, however, which remained outstanding and even though Mr. Day’s permit was not renewed, he continued to use the 407 highway.

The 407 ETR eventually sued Mr. Day for the outstanding debt in June 2013, and Mr. Day moved to dismiss the claim on the basis that it was beyond the limitation period. The motion judge held that the claim was discovered on the date that Mr. Day was placed into licence plate denial (in this case May 26, 2011) and dismissed the claim on the basis that it was beyond the limitation period.

The Court of Appeal disagreed, holding that a proceeding was appropriate only after the license plate denial process had run its course — in other words, once a vehicle permit had expired for failure to pay the debt. Before that, 407 ETR did not have reason to believe that the debt would not be paid and a proceeding was therefore not appropriate. The court noted that if the limitation period were to run alongside the licence plate denial process, it could lead to several Small Claims Court claims which were unnecessary because most individuals would pay their debt to avoid having their vehicle permits expire.

In Presidential MSH Corporation v. Marr, Foster & Co. LLP, 2017 ONCA 325, the Court of Appeal commented on the appropriate means test in the context of an accountant’s negligence case. The accountant for Presidential was late filing its corporate tax returns. As a result, various tax credits were disallowed and Presidential was assessed penalties and interest.

In April 2010 Presidential received Notices of Assessment from CRA disallowing the claimed tax credits. In response, Presidential retained counsel to object to the Notice of Assessments and the lawyer was assisted by Presidential’s accountant who had made the initial late filing. Some 15 months later, the CRA confirmed its Notices of Assessment and Presidential sued its accountant for negligence. By that time, it has been more than two years since Presidential first received the Notices of Assessment.

The accountant was initially successful on a summary judgment motion and Presidential’s action was dismissed for being beyond the limitation period; however, the Court of Appeal overturned that decision.[8] The Court of Appeal set out a few general principles on “appropriate means”. First, the court stated that a legal action may not be appropriate where the plaintiff is relying on “superior knowledge and expertise” of the defendant. This often, but not exclusively, occurs in a professional relationship. The mere existence of a professional relationship, however, is not enough to render legal proceedings inappropriate, particularly where the defendant is not engaged in good faith efforts to remedy the loss. Second, based on the 407 ETR case, the court set out the principle that it is premature for a party to commence an action if there is a statutory dispute resolution process which offers an adequate alternative remedy and that process has not been fully exhausted.

In Gillham v. Lake of Bays (Township), 2018 ONCA 667, the Court of Appeal addressed the appropriate means question in the context of construction deficiencies. Jack and Heather Gillham hired Royal Homes Limited to assemble a prefabricated cottage and deck, and J.D. MacKay to build a retaining wall to support the deck.

Three years later, in 2009, the Gillhams first noticed that the deck had sunk about 1 ¼ inches which was causing the deck to pull away from the cottage. The Gillhams approached Royal Homes about the issue and Royal Homes suggested that the issue was with the retaining wall built by MacKay. The Gillhams retained an engineer to investigate. The engineer prepared a report (the “2009 Report”) suggesting that there was a problem with the backfill that was added behind the retaining wall; however, the report did not suggest that the retaining wall was failing nor that there were any construction issues with the retaining wall or cottage foundation.

The Gillhams discussed the report with MacKay who advised them that retaining walls often settle a bit and recommended they “wait and see” if the retaining wall would properly level out in the next year or two.

The problem continued. A soil study was undertaken in 2012 and a report was prepared (the “2012 Report”). The report concluded that the retaining wall was failing and recommended that it be removed and reconstructed. It specifically concluded that the retaining wall had been built on loose soil without adequate support. When the remedial work started in 2013, it was discovered that the cottage foundation had also been constructed on loose soil.

The Gillhams brought their action against the Town, Royal Homes and MacKay in October 2013. By that time it was more than seven years since the cottage had been built and four years after the 2009 Report; however, it was within two years of the 2012 Report. The motions judge dismissed the action, concluding that the claim was discoverable when the Gillhams received the 2009 Report.

The Court of Appeal overturned the decision, holding that the motion judge misapprehended the contents of the 2009 Report. The court found that it was only with the 2012 Report that the Gillhams were advised that the retaining wall was failing because it had been built on loose soil. Moreover, the 2009 Report did not reveal any problems with the construction of the cottage.

The motion judge was also found to have misapprehended the 2012 Report because he treated the 2012 Report as though it confirmed the issues raised in the 2009 Report when in fact its conclusions differed importantly. The 2012 Report identified the cause of the problem to be the negligent construction of the retaining wall on loose soil. Further, the 2012 Report raised for the first time the possibility that there was a problem with the construction of the cottage foundation that had to be investigated.

Finally, the motion judge erred in failing to consider section 5(1)(a)(iv) and conduct the “appropriate means” analysis. In particular, he did not consider whether it was reasonable for the appellants to not commence an action and to “wait and see” whether the 1 ¼ inch shrinkage would worsen or resolve over time as had been suggested by MacKay. Neither MacKay nor Royal Homes believed the problem was serious or related to the manner of construction.

The appropriate means test was considered again in Presley v. Van Dusen, 2019 ONCA 66, a Small Claims Court action which made its way up to the Court of Appeal. The plaintiff homeowners Janice Pressley and Robert Frederick retained the defendant Jack Van Dusen to install a septic system in 2010. The septic system was approved by the defendant Leeds, Grenville and Lanark District Health Unit that same year. In 2011, a smell began coming from the septic system. The plaintiffs called Van Dusen and he appeared to fix the problem by replacing a failed sewage pump. When the smell returned in 2012, Van Dusen advised the plaintiffs that the cause was an unusually wet year and that many property owners were having the same problem. In 2013, there was both smell and effluent from the system, but it was otherwise functioning without issue. Van Dusen inspected the system and advised the plaintiffs that the problem could be fixed by applying a load of sand to a portion of the septic bed, and he assured the plaintiffs that he would return to perform the work.

In 2013, Van Dusen attended to place the sand but the plaintiffs were not home and he was unable to access the property. Van Dusen failed to attend in spring 2014 because of excessive mud which made it difficult to place the sand. The plaintiffs had discussions with Van Dusen about attending in winter 2014 and plowed the snow to give him access to the property, however, he never attended.

In April 2015, the plaintiffs called the defendant Health Unit which led to the septic system being inspected. Ultimately on June 1, 2015 the Health Unit condemned the septic system and issued an order requiring the plaintiffs to replace it.

The Court of Appeal concluded that both the Small Claims Court judge and the Divisional Court erred in law by failing to conduct a proper “appropriate means” analysis under section 5(1)(a)(iv). The court underscored that consideration of when a proceeding was an appropriate means is an essential element under the discoverability analysis, and that failing to consider it is an error of law. In considering whether a proceeding was an appropriate means, the court noted that the plaintiffs retained Van Dusen because of his special training and experience in installing sceptic tanks; he had expertise upon which the plaintiffs relied. Although the prior cases involving a plaintiff’s reliance on superior knowledge and expertise have concerned defendants belonging to traditional expert professions (for example, physicians, dentists, accountants), more recent decisions apply the “superior knowledge prong” to individuals who are part of non-traditional professions or are not professionals at all.

The court concluded that Van Dusen continued to assure the plaintiffs that he would address the problem, the plaintiffs reasonably relied on these assurance, and these assurances led the plaintiffs to the reasonable belief that the problem could and would be remedied without any cost and without need for the courts. The court extended the appropriate means analysis to the defendant Health Unit. The Health Unit argued that since it did not have any ongoing discussions about the septic system with the plaintiffs, the limitation period as against the Health Unit should not be tolled as it did not make any assurances about the system.

The court rejected this argument. It held that if a proceeding against Van Dusen was not appropriate until the plaintiffs realized that the problem with the system was more serious than Van Dusen led them to believe, the plaintiffs could not have known that a proceeding was appropriate against the Health Unit at an earlier date. This application was held to be consistent with the purpose of section 5(1)(a)(iv) to deter needless litigation.

Personal Injury Update

This year has seen some interesting developments to the case law surrounding limitation periods for personal injury actions, particularly pertaining to claims under the Family Law Act (“FLA”).[9]

In Scalabrini. v. Kahn, 2019 ONSC 2278, the plaintiffs brought a motion to add an FLA claimant more than four years after the date of loss and after the action had been commenced. The motion was heard six months before the trial in the action was scheduled to begin. The plaintiff, Mr. Scalabrini, was in a rear-end motor vehicle accident in June 2014. Immediately before the accident, his wife (the proposed FLA claimant) purchased slate tiles with the intention that the plaintiff would renovate the roof of their home. Following the accident, the plaintiff was unable to repair the roof himself because of dizziness he sustained when he climbed the ladder.

The plaintiff alleged that there was a delay in renovating the roof which caused the roof to leak. This leak, in turn, caused mold growth in the plaintiff’s home. The plaintiff’s wife alleged that she suffered injuries and health issues as a result of the mold growth in her home and she sought to be added as an FLA plaintiff. The defendant opposed adding Ms. Scalabrini as a plaintiff on the basis that her claim was beyond the limitation period.

The Scalabrinis argued that the FLA claim was not discoverable until they conducted a mold inspection on their home in October 2018. They argued that when the statement of claim was issued, it was not apparent that Ms. Scalabrini also had a claim against the defendants. It was only after Ms. Scalabrini’s health began to deteriorate as a result of the developing mold in the house that the full extent of the effect of her husband’s injuries became apparent.

The master hearing the motion determined that the FLA claim could be added since it was derivative of the main action, and the main action had been commenced on time. In allowing the FLA claim to be added, the master held that there is nothing in the Family Law Act nor the Limitations Act, 2002, which requires the limitation period applicable to each derivative claim be the same as the limitation period applicable to principal claim.[10]

The defendant appealed the decision arguing that the motion judge erred by adding Ms. Scalabrini as a plaintiff because her claim was beyond the limitation period.[11] The defendant argued that the master erred because he did not point to “a reasonable explanation on proper evidence” as to why Ms. Scalabrini could not have discovered her claim through reasonable diligence.[12] The appeal judge made note of the comment from the motion judge that the record before him was “sparse” and underscored that if there is an issue of fact or a credibility issue regarding discoverability, the court should grant leave to add the FLA claim with leave to the defendant to plead a limitations defence.[13] It was not necessary for the master to make a finding that the FLA claimant discovered her claim within two years of the motion requesting leave to add her claim; it was sufficient that the record raised an issue about when the claim was discovered.[14]

The judge concluded that if a clear finding of fact can be made that the claim was not brought in time, then the motion should be refused. Where, however, the record raises an issue about when the claim was discovered, the motion to add the plaintiff is allowed and the discoverability issue proceeds to trial.   The appeal judge upheld the master’s decision, without commenting on the issue of whether or not an FLA claim, as a derivative claim, can be added as long as the statement of claim was commenced within the limitation period.

In Malik v. Nikbakht, 2019 ONSC 3118, the plaintiff, Sarfraz Malik, brought an action arising out of a motor vehicle accident. Mr. Malik was the driver of the vehicle and his wife and three children were passengers. There were two other actions in which the plaintiff’s wife and children brought actions against various defendants, including Mr. Malik, for damages sustained in the accident. More than four years after the accident, Mr. Malik brought a motion seeking leave to amend the statement of claim so that he could add a claim for his FLA damages flowing from injuries to his children. It is important to note that the plaintiff did not raise discoverability as an explanation for not bringing his FLA claim sooner.

The master allowed Mr. Malik’s amendment to claim FLA damages. In allowing the amendment, the master determined that he was bound by the decision in Bazkur v. Coore, 2012 ONSC 3468, (a single judge sitting as Divisional Court) where the judge allowed a similar amendment, holding that the addition of an FLA claim did not raise a new cause of action.

The defendant appealed, arguing that the master erred in holding that the FLA claim was a head of damages rather than a separate and new claim. The appeal judge agreed and allowed the appeal, stating that the decision in Bazkur v. Coore was incorrectly decided. He noted that a claim under the FLA is a derivative claim which arises from a statutorily created cause of action.[15]

The judge held it was immaterial that the plaintiff relied on the same acts and omissions of the defendants in support of his FLA claim; the amended pleading was setting out a new cause of action. While the plaintiff’s initial claim was a claim in negligence for his injuries from the defendants’ breach of duty to him, his proposed amendment was a derivative claim based upon injuries to his children. The appeal judge held that the plaintiff’s direct claim and his derivative claim under the FLA arose from legally separate causes of action. As such the plaintiff was not permitted to add his FLA claim since it was beyond the limitation period.

In Rockford v. Haque, 2019 ONSC 474, the plaintiff was involved in a motor-vehicle accident in in August 2009, but did not commence an action until November 2014. The defendant brought a motion for summary judgment on the basis of the expired limitation period.

The plaintiff successfully argued that she did not discover the claim until she had a “sufficient body of evidence” to know that a legal proceeding was an appropriate means to seek relief, and that her claim had a “substantial chance” of succeeding; i.e., that it would breach the threshold contemplated by section 267.5(5) of the Insurance Act.[16]

The court found that it was not until December of 2012 when the plaintiff’s lawyer received a report from a physiatrist in relation to a concurrent accident benefits claim that indicated her prognosis for a “full recovery” was “poor”. It was at this time at the earliest that she discovered her claim and the clock began to run.[17] Prior to that, the plaintiff was not diagnosed with a condition suggestive of a serious and permanent injury or impairment, nor was she advised that her injuries were anything other than temporary.[18]

Abilities and Circumstances of the Plaintiff

When conducting a limitation period analysis, the court will assess a plaintiff’s abilities and circumstances in determining if they could have reasonably discovered a claim. The Court of Appeal in the oft-quoted case of Longo v. MacLaren Art Centre, 2014 ONCA 526 indicated:

The plaintiff must act reasonably in investigating and determining whether he or she has a claim. A consideration of whether the plaintiff has acted reasonably will include an analysis of not only the nature of the potential claim, but also the particular circumstances of the plaintiff.[19]

While these findings aren’t necessarily explicit in all decisions, recent cases have trended towards the court commenting specifically on the experience of the plaintiff (or their representative) and how that affects their ability to discover a claim.

In Lewis v. Plaskos, 2018 ONSC 6058, the defendant radiologist Dr. Plaskos moved for summary judgment on the basis that the claim was statute barred. The plaintiff commenced an action against several doctors related to a delayed diagnosis leading to permanent paraplegia. At issue was the failure to order an MRI. If the MRI had been ordered on an urgent basis when the symptoms first appeared, it would have revealed a mass on the plaintiff’s spine, which perhaps would have set surgery in motion which could have prevented the plaintiff’s condition..

Before the claim was issued, the plaintiff’s lawyer ordered and received medical records from the hospital, which indicated that the MRI was refused. In reviewing the hospital records, the plaintiff’s lawyer concluded that the incomplete record, which indicated that an MRI was “refused”, was made by the defendant Dr. Cameron, and that Dr. Cameron was the one who refused that MRI.[20] This, despite the records also indicating that Dr. Plaskos was involved in the plaintiff’s care at the time. The Statement of Claim was issued without naming Dr. Plaskos as a defendant. The plaintiff eventually discovered via a Demand for Particulars that the MRI was refused by Dr. Plaskos, although this was after the presumptive limitation date.

The court held that it is within the purview of medical malpractice and personal injury lawyers to routinely review medical records, and that they should be aware of the “dangers” when reviewing illegible, abbreviated and incomplete records.[21] As such, the plaintiff’s lawyer should have been alert to the possibility that the record of Dr. Cameron was incomplete.[22] As well, the plaintiff’s lawyer should have considered and pursued all possibilities at the time of reviewing Dr. Cameron’s record, including the possibility that it was Dr. Plaskos that refused the MRI, rather than Dr. Cameron.[23] As such, the counsel’s analysis was “not objectively reasonable, particularly having regard to her abilities and experience as a medical malpractice lawyer”[24], and the potential claim against Dr. Plaskos therefore should have been discovered before the expiration of the limitation period.

In Service Mold + Aerospace Inc. v. Khalaf, 2018 ONSC 5345, the plaintiff moved for summary judgment against the defendant bank TD, on the basis that TD paid out hundreds of thousands of dollars to the defendant fraudster defendant Khalaf via forged cheques. Over a period of 2008 to 2012, the defendant Khalaf was an employee of the plaintiff as a bookkeeper. During that time she forged cheques to her own name and covered it up such that the plaintiff claimed it did not discover the fraud until early 2015.

One of TD’s defences was that the action was commenced outside the limitation period, and that the plaintiff should have discovered the fraud within the presumptive two year limitation period. TD argued that if the plaintiff business had reasonable measures in place, the fraud would have been detected before the limitation period expired.

The court found that Mr. Schuurman, the officer of the plaintiff company responsible for Khalaf, was primarily a machinist and had no background or education in bookkeeping, accounting or finances.[25] As well, the court found that he was perhaps “overly trusting”, “imprudent”, and “gullible”.[26] Moreover, the plaintiff business lacked a segregation of duties in the accounting department which could have detected the fraud at an earlier juncture.

Despite these findings, the court felt that this did not make him or the plaintiff business “unreasonable” in not discovering the claim within the presumptive two year period. Rather, “the ‘abilities and circumstances’ of Mr. Schuurman included his overly trusting, perhaps gullible nature and his resultant vulnerability.”[27] As such, and having regard to Mr. Schurrman’s qualities, the claim was not discoverable for some time, and it was therefore not statute-barred.

In Hamilton (City) v. Daimler Trucks North America LLC, 2018 ONSC 4617, the plaintiff commenced an action against the defendants for damages arising from a fire to a truck. The truck caught fire on September 22, 2010, and the Statement of Claim was issued on February 19, 2013. The plaintiff City argued that it did not discover the claim until it received an origin and cause report in October 2011, and that the limitation period began at that point. The Defendants Wajax and Daimler, both involved in the manufacturing process of the truck, moved for summary judgment.

As part of the court’s analysis, it was found that as of November 12, 2010, at the latest, the plaintiff had discovered the potential claim as against the defendants when destructive testing took place. A claims examiner employed by the City was in attendance at the destructive testing, and he was told at that time by the experts that the fire likely occurred as a result of electrical issues within the engine compartment.[28] The court specifically indicated that the City’s claims examiner, having 27 years of experience in investigating claims, did not require the Origin and Cause report to discover the claim against the defendants.[29] His experience took him outside the circumstances of a lay-person such that his conversation with the experts regarding the electrical issues started the limitation period. As a result, and due to other substantial evidence regarding the discoverability of the claim, the action was dismissed.

Use of Rule 21.01(a) for Determination of an Expired Limitation Period

Typically, if a defendant wants to summarily dismiss a plaintiff’s claim as a result of an expired limitation period, the proper rule to move under is rule 20 (summary judgment). As part of that motion, affidavit and other evidence (such as discovery transcripts) may be filed both on the part of the moving and responding parties, and cross-examinations on that affidavit evidence can occur and form part of the evidentiary record.

There is, however, another avenue sometimes taken by defence counsel looking to dismiss a claim on the basis that the limitation period has expired. Rule 21.01(1)(a) provides that a party may move before a judge for the determination of a question of law raised by a pleading. Unlike a motion for summary judgment, no evidence is admissible on such a motion except with leave or on consent.

More recently, the court has begun to crack down on motions brought under rule 21.01(1)(a) when asserting the claim is barred by the Limitations Act. In Clark v. Ontario (Attorney General), 2019 ONCA 311, the plaintiff police officers sued the Attorney General alleging that Crown prosecutors were negligent and misfeasant because they failed to adequately investigate and failed to call contrary evidence at a trial whereby alleged perpetrators testified that the officers assaulted them during an arrest. Having no contrary evidence from the officers themselves, the court found that such an assault did in fact take place. The officers alleged they sustained harm as a result of the finding that they committed the assault.

The Attorney General moved under rule 21.01(1)(a) to strike the action on the grounds that it was barred by the expiry of the limitation period. At the motion level, this argument was dismissed on the basis that the discoverability of the claim may have been tolled because the claim was a novel one. The Attorney General appealed.

The Court of Appeal, rather than specifically analyzing the motion judge’s reasons, dismissed this ground of appeal simply because the motion was not properly brought in the first place.

Firstly, the court noted that a limitation defence was not specifically pleaded and there are only very limited circumstances where the court will overlook the failure to plead such a defence. Such circumstances were not met in this case.[30]

Secondly, the court indicated that the use of 21.01(1)(a) for the purposes of advancing a limitations defence, while not categorically precluded by the court, has generally been discouraged.[31] The court said that it is only in the limited circumstances where there is are undisputed facts that the 21.01(1)(a) route is viable.[32] Of course, where the discoverability of the claim is at issue, it can hardly be said that there are no factual issues in dispute. The analysis as to the discoverability of a claim requires evidence and facts to determine – it is therefore not a question of law, but rather one of mixed fact and law.[33] In such cases, it is a matter of procedural fairness that the parties be able to present the court with a complete factual record before such a determination is made.[34]

Conclusions and Trends

As with any statute, the Limitations Act continues to evolve as it is applied by the court. As we can see from recent decisions, the application of a limitation period to the facts of each individual case has, for the most part, favoured those arguing that the limitation period has not expired, either in substance or from a procedural point of view.

We have seen a general broadening of the circumstances in which the courts will toll the running of a limitation period on the basis of a proceeding not being an “appropriate means” to remedy the plaintiff’s loss. In particular, in cases where the plaintiff relies on the superior knowledge or expertise of the defendant – which is not necessarily limited to professional relationships – the courts have concluded that a claim has not been discovered because a proceeding is not yet an appropriate means to remedy the plaintiff’s loss. Moreover, a proceeding may not be appropriate where there is some other avenue through which the plaintiff may be able to remedy his or her loss.

In the personal injury context, recent cases illustrate that a court may be inclined to allow an amendment to a statement of claim even if the court cannot definitively say that the plaintiff discovered her claim within two years of bringing the motion to amend. Where there are important factual or credibility issues on the motion, the court is likely to allow the amendment and allow the defendant to plead a limitation defence so that the issues can be resolved at a later date on a more fulsome record.

We have seen a more strict application of the limitation period in the Malik v. Nikbakht decision, which concludes that amendments to add an FLA claim for an existing plaintiff are not amendments to add an additional remedy, rather they are adding a separate cause of action. Such amendments will not be permitted if they are outside of the limitation period.

The “abilities and circumstances” of the plaintiff, and how that informs whether a claim was discoverable, has mixed results for the defence bar. On one hand, the Service Mold case strongly suggests that a unsophisticated and even imprudent plaintiff will be given all the leeway in the world for not having discovered a claim until a certain date. On the other hand, Plaskos and Daimler seem to indicate a trend in the opposite direction; namely that a great deal of responsibility is on plaintiffs to discover their claim before the expiry of the presumed limitation period. Unlike Service Mold, however, Plaskos and Daimler involved plaintiffs that had experienced representatives acting on their behalf before the presumptive limitation period expired. Because the abilities and circumstances of those representatives took them outside the scope of what would be expected from a layperson, the claims were found to be have been discoverable at an earlier juncture. As such, it is important to consider if the plaintiff itself or their representatives had particular abilities and experience which would shorten the discoverability timeline.

Procedurally, the court has narrowed the available avenues a defendant can take in asserting the expiry of a limitation period. As we can see from Clark, the court has more or less kept defendants in check who want to argue that a claim is statute-barred before the evidentiary record has been fully explored. As a result, while there may be a strong inkling that a claim may be statute-barred, and there be corresponding visions of costs-savings before a defence is even filed, expectations that the claim will be dismissed at an early stage need to be tempered where there are facts in dispute regarding the discoverability of the claim.

[1] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. This paper only discusses limitation periods under the Limitations Act, 2002, however many other limitation periods may apply. See for example 59.1 of the Insurance Act and 38(3) of the Trustee Act.

[2] Fennell v. Deol, 2016 ONCA 249 at para 20.

[3] Peixeiro v Haberman, [1997] 3 SCR 549 at para 36.

[4] Longo v. MacLaren Art Centre, 2014 ONCA 526 at para 43.

[5] Markel at para 34

[6] Ibid

[7] S.O. 2002, c. 24, Sched. B.; S.O. 1998, c. 28

[8] At the time of the motion judge’s decision, the Court of Appeal decision in 407 ETR had not yet been released.

[9] R.S.O. 1990, c. F.3

[10] Scalabrini. v. Kahn, 2019 ONSC 2278 (Master) at para 36.

[11] See Scalabrini v. Khan, 2019 ONSC 5509 (SCJ) (“Scalabrini – SCJ”)

[12] Scalabrini – SCJ at para 3.

[13] Scalabrini – SCJ at paras 22-23.

[14] Scalabrini – SCJ at para 9.

[15] See Camarata v. Morgan, [2009] O.J. No. 621 (ONCA)

[16] Rockford v. Haque, 2019 ONSC 474 at para 47 (“Rockford”).

[17] Rockford at para 44.

[18] Ibid at para 24.

[19] Longo v. MacLaren Art Centre, 2014 ONCA 526 at para 43.

[20] Lewis v. Plaskos, 2018 ONSC 6058 at para 59 (“Plaskos”).

[21] Plaskos at para 55

[22] Ibid at para 56.

[23] Ibid at para 63-64.

[24] Ibid at para 65.

[25] Service Mold + Aerospace Inc. v. Khalaf, 2018 ONSC 5345 at para 68 (“Service Mold”)

[26] Service Mold at para 70.

[27] Ibid at para 71.

[28] Hamilton (City) v. Daimler Trucks North America LLC, 2018 ONSC 4617 at para 39 (“Daimler”).

[29] Daimler at para 42.

[30] Clark v. Ontario (Attorney General), 2019 ONCA 311 at para 39 (“Clark”).

[31] Clark at para 42.

[32] Ibid at para 43.

[33] Ibid at para 43-44.

[34] Ibid at para 49.