Case Annotations from Limitations Periods Charts

Insurance
* See the case of Boyce v. Co-operators General Insurance Co., 2013 CarswellOnt 5736, 2013 ONCA 298, 228 A.C.W.S. (3d) 834, 116 O.R. (3d) 56, 307 O.A.C. 28, 22 C.C.L.I. (5th) 1, [2013] O.J. No. 2568 (C.A.) for clarification of the enforceability of contracts of insurance which purport to shorten the two year limitation period set out in s. 4 of the Limitations Act, 2002.  The Court of Appeal clarifies s. 22 of the Limitations Act, 2002, which is the general rule (and exceptions to it) which forbids “contracting out” of the general two year limitation provision found at s. 4.  The Appeal Court held firstly that a term purporting to shorten the limitation period must “in clear language” describe the limitation period, identify the scope of the application of it, and exclude the operation of other limitation periods.  Unless the term is in the contract and meets those requirements, the two year limitation period will apply.  Secondly, the “business agreement” exception will not apply to persons defined as “consumers” in the Consumer Protection Act, 2002, who enter into agreements for personal, family or household purposes.  In those situations, the two year limitation will apply.  Note, leave to appeal to the Supreme Court of Canada was refused: 2013 CarswellOnt 14166; [2013] S.C.C.A. No. 296 (S.C.C.).Kassburg v. Sun Life Assurance Co. of Canada, [2014] O.J. No. 6222, 2014 ONCA 922 (C.A.) is a decision of the Ontario Court of Appeal which applied Boyce, supra to determine whether a contractual limitation period failed for uncertainty/ambiguity.  The Court of Appeal agreed with the motions judge that the one year limitation period in an LTD insurance policy was ambiguous and thus unenforceable, as it expressed the limitation period differently in two different places.  The Contract Document provided that time started to run from “the end of the time period in which proof of the claim is required”, and the Booklet provided it ran from “after the date [the insurer] must receive [the insured’s] claim forms”.  The insurer further argued that the limitation period began to run in 2008 when the plaintiff was first denied her benefits, and thus the claim (issued in 2012) was statute-barred no matter which limitation period applied.  Again, the appeal court found no reason to disagree with the conclusion of the motions judge that the two year limitation period began to run when the plaintiff was advised, in 2011, that her claim for benefits was denied at the “third and final appeal level”.
Also of note, the Supreme Court of Canada in Lombard General Insurance Company of Canada v. Schmitz, [2014] S.C.C.A. No. 143 dismissed the application for leave to appeal the decision of the Ontario Court of Appeal in Schmitz (Litigation guardian of) v. Lombard General Insurance Co. of Canada, [2014] O.J. No. 531, 2014 ONCA 88, 315 O.A.C. 187, 31 C.C.L.I. (5th) 1, 118 O.R. (3d) 694, 237 A.C.W.S. (3d) 484, 2014 CarswellOnt 1177.  This case involved the underinsured coverage under OPCF 44R.  At issue on appeal was whether the 12 month limitation period applied as per s. 17 of OPCF 44R, or whether the two year period applied as per s. 4 of the Limitations Act, 2002.  Also at issue was when the period of time commenced.  The motion judge held that the period of two years applied, and that it commenced when the claimant made a request for the compensation provided for by OPCF 44R.  The Court of Appeal dismissed the insurer’s appeal, but made a minor amendment to the Order, holding that the time began to run the day after the demand for indemnification is made, as the insured only suffers a loss once the insurer has failed to satisfy its legal obligation.*See Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 which, although decided under predecessor legislation (the former s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996), is arguably applicable to the identical current legislation (s.280(2) of the Insurance Act and s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010).  The case held that the hard two-year limitation period outlined in those sections is subject to the discoverability rule.

---

 

No Limitations Period

Fraud
*It is a common misconception that a claim grounded in fraud has no limitation period.  Civil litigators who should ever have occasion to represent a plaintiff bringing a fraud action – as well as those representing a defendant on the receiving end of a fraud action – should know that the two year limitation applies to these cases.  Of course, the very nature of fraudulent activity means that the actions of the wrongdoer were at one point being deliberately concealed.  Thus, the discoverability principles will likely be in play when determining the commencement of the limitation period.  For some appellate level cases on this issue, see: Dynamic Fuel Systems Inc. v. Synergic Distribution Inc., [2013] O.J. No. 2708, 2013 ONSC 4081, 2013 CarswellOnt 7897, 229 A.C.W.S. (3d) 95 (Div. Ct.) and Portuguese Canadian Credit Union Ltd. (Liquidator of) v. Pires, [2012] O.J. No. 2215, 2012 ONCA 335, 2012 CarswellOnt 6250, 216 A.C.W.S. (3d) 473 (C.A.).
Kaynes v. BP p.l.c., 2021 ONCA 36 clarifies that determining the discoverability of fraudulent misrepresentation claims depends on when the plaintiff became aware of the defendant’s knowledge of the falsity of its misrepresentation. In this securities case, the appellant purchased BP shares in 2008 and BP made corrective disclosures in 2010. The Court of Appeal disagreed with the motion judge, who held that the fraudulent misrepresentation was discoverable in 2010 by virtue of the corrective disclosures. BP’s pleading indicated it continued to deny knowledge until 2015, at which time the fraud was discoverable.

Special Circumstances

Until the Ontario Court of Appeal’s decision in Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 401 (C.A.), many lawyers in Ontario thought they could still rely on the common law doctrine of special circumstances, which gave the Court the discretion to extend a limitation period after its expiration, if special circumstances existed. The Court of Appeal in Joseph has unequivocally pronounced that the doctrine no longer applies under the new Limitations Act, 2002.  Click to read a full article on this case.

Discoverability & Pleadings

See the case of Collins v. Cortez, [2014] O.J. No. 4753, 2014 ONCA 685 (C.A.) in which the Court of Appeal confirmed that plaintiffs do not have to anticipate a limitations defence by pleading the material facts relevant to discoverability in the statement of claim.
See the Supreme Court of Canada’s recent decision in Pioneer Corp. v. Godfrey, 2019 SCC 42, a class action case brought under the Competition Act, R.S.C. 1985, c. C-34, which clarifies that the discoverability rule is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods. It can therefore be displaced by clear legislative language.

In Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74, the Court of Appeal held that actual knowledge is a fact-specific inquiry which looks at all of the circumstances – there is no “bright line” test. This case was an environmental contamination claim where the landowner had knowledge of several properties identifying its property as the potential source of contamination. The Court held that subsurface testing was not required to establish actual knowledge of contamination. The landowner’s third party claim against the predecessor landowners was struck, on the basis that it was statute-barred.

In Andrews v. Pattison, 2022 ONCA 267, a medical malpractice case, the Court of Appeal stressed that plaintiffs should not wait for expert reports before issuing a claim. The CA agreed that the claim was discoverable when the plaintiff met with her lawyer, as she had all of her medical records, and concern was expressed about whether a better outcome would have occurred if an earlier x-ray been taken. The action was summarily dismissed as statute-barred.

The Appropriate Means
As part of discoverability, keep in mind s. 5(1)(a)(iv) of the Limitations Act, 2002 which states that a claim may be ‘discovered’ when the plaintiff first knew that a proceeding would be an appropriate means to remedy the injury, loss, or damage. Most recently, this argument was successful in Presley v. Van Dusen, 2019 ONCA 66. The Ontario Court of Appeal in that case held that the plaintiff homeowners, who had a septic system installed by the defendant contractors in 2010 and noticed problems with it as early as 2011, were entitled to rely on the expertise of the contractor, who attempted to remedy the problem over the years, before determining that a lawsuit was required to properly remedy the problem. It was held that the claim, commenced in 2015, was not statute-barred.

Pursuant to Section 16 of the Limitations Act, 2002, there are no limitation periods in respect of the following proceedings: