Category: Ontario

Ontario: the scope of the sexual assault/misconduct exceptions

Jane Doe v. Weinstein considers the scope of s. 16(h) and (h.1) of the Limitations Act, which provides that there is no limitation period in respect of a proceeding based on a sexual assault, and misconduct of a sexual nature:

16 (1) There is no limitation period in respect of,

[…]

(h) a proceeding based on a sexual assault;

(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:

(i) the other person had charge of the person with the claim,

(ii) the other person was in a position of trust or authority in relation to the person with the claim,

(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

[…]

Same

(1.1) Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2). 2016, c. 2, Sched. 2, s. 4 (2).

[…]

Same

(1.3) For greater certainty, clauses (1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability. 2016, c. 2, Sched. 2, s. 4 (2).

A defendant in Jane Doe argued that because the claims against her were not based on the sexual assaults themselves, they fell outside the scope of the s. 16(1)(h.1) exception.  The court rejected this argument:

[26]           With that context in mind, in my view the purpose of section 16 (1.3) is to ensure that, where a proceeding involves a claim for civil liability arising from or relating to a sexual assault, that proceeding cannot be barred by the Act. This encompasses proceedings against third parties (i.e. persons other than the perpetrator of the sexual assault) regardless of the nature of the claim, whether for breach of duty, vicarious liability or otherwise, provided that the connection with a sexual assault is established.

[27]           Viewed in this light, all of the claims against Schneeweiss fall within the umbrella of s. 16 (1.3). Although the claims against Schneeweiss are not for the sexual assaults themselves, they all involve civil liability for actions that relate directly to Weinstein’s sexual assaults on Doe. Schneeweiss is said to have facilitated the assaults, with knowledge, recklessness or indifference to the consequences for Doe. Thus all of the allegations against Schneeweiss in the Claim are “in relation to” Weinstein’s assaults and are not statute barred.

This is sensible and well-reasoned, and the construction of the provisions seems correct to me. I expect this will become a leading decision on the scope of the sexual misconduct exception,  Meanwhile, the context the court refers to is as follows:

[18]           The limitations issue raised by Schneeweiss turns on the proper interpretation of the phrase “in relation to the applicable act” in s. 16 (1.3). Are the claims against Schneeweiss claims “in relation to” the sexual assaults by Weinstein (in which case no limitations period would apply), or are they claims in relation to “other acts” (in which case they remain subject to the normal and ultimate limitation periods in the Act)?

[19]           Schneeweiss argues that the 2016 amendments to s. 16 are to be construed strictly because they create an exception to a general rule and have the effect of taking away an existing limitations defence which had already accrued to Schneeweiss. Schneeweiss argues that at least some of the claims against her, including claims for negligent failure to warn, negligent misrepresentation and negligent infliction of nervous shock, are not claims “in relation to sexual assault” since they are based on separate acts or breaches of duty by Schneeweiss.

[20]           The parties are agreed that the 2016 amendments to s. 16 have retroactive effect since s. 16 (1.1) expressly provides that the 2016 amendments apply to proceedings “whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period…”

[21]           Further, the parties are agreed, in accordance with the analysis of Lederer J. in Fox Estate v. Narine,[5] that s. 16 (1.3) encompasses proceedings against persons other than those who actually perpetrate sexual assaults. Lederer J. noted that s. 16 (1.3) references proceedings involving claims for negligence, breach of fiduciary duty or for vicarious liability. He reasoned that this must necessarily include proceedings involving third parties:

Neither party disputed the idea that this sub-clause was pointed at parties other than the perpetrator. A sexual assault is a criminal act. It cannot reasonably be proposed that before a person who carries out such an act can be civilly liable, he or she must have been negligent, in a fiduciary relationship with the victim, or owed the victim a duty. A perpetrator is directly involved and so cannot be vicariously liable for his or her own acts. It is when a third party stands in such a relationship to the victim that s. 16 (1)(h) is extended such that there is no limitation period that applies.

[22]           In interpreting the scope of s. 16 (1.3), it is helpful to have reference to the context in which it was enacted as well as its legislative history. The preamble to Bill 132 (which added the new provisions to s. 16) notes that on March 6, 2015, the Government of Ontario announced “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Action Plan”). The preamble to Bill 132 further stated:

The Government will not tolerate sexual violence, sexual harassment or domestic violence. Protecting all Ontarians from their devastating impact is a top Government priority and is essential for the achievement of a fair and equitable society.

All Ontarians would benefit from living without the threat and experience of sexual violence, sexual harassment, domestic violence and other forms of abuse, and all Ontarians have a role to play in stopping them.

[23]           During the legislative debate on Bill 132, the Honourable Tracy MacCharles, the Minister Responsible for Women’s Issues, noted that s. 16 (1.3) had been added to the Bill in committee on the basis that the original draft “did not make it clear enough that there would be no limitation period for civil claims against institutional defendants.” The Minister indicated that she was “pleased that the committee passed amendments to make it absolutely clear that there will be no limitation period for civil claims against institutional claimants.” She further observed that “we believe that time should be on the side of the survivors, not the perpetrators. Survivors would be able to seek compensation regardless of when the crime occurred.”[6]

[24]           What this indicates, amongst other things, is that the amendments to the Limitations Act contained in Bill 132 are remedial, addressing broad systemic problems relating to sexual harassment and assault. Consistent with s. 64(1) of the Legislation Act, they “shall be interpreted as being remedial and be given such fair, large and liberal interpretation as best suits the attainment of its objects.”

[25]           I note that the wording of s. 16 (1.3) includes expansive language to the effect that the elimination of the limitations period for sexual assaults is “not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act”. The clear objective of this provision is to ensure that victims of sexual assault may pursue civil claims, not just against the perpetrators of the assaults but also against others who may be civilly liable in connection with the assaults, regardless of when the claim is commenced. Moreover, although Minister MacCharles referred in her remarks to claims against institutional defendants, the reference in s. 16 (1.3) to there being no limit “in any way with respect to the claims that may be made” indicates that claims may also be pursued against individuals who may be civilly liable in connection with a sexual assault.

 

 

 

Ontario: the limitation of human rights claims pursued in court

An issue in Torres v. Export Packers was whether the Limitations Act or the Human Rights code applies to a human rights claim in a civil action.  It arose in the context of a motion to strike paragraphs from a pleading, and because the court found the question undecided, it denied the relief:

[24]           There can be no doubt that the law is unsettled as to which limitation applies.  The Defendant’s own factum, under the heading “Ontario Superior Court’s Inconsistent Application of the Limitations Act and the Code“, refers to a number of cases where Superior Court Judges have applied both the Code and the Limitation Act limitation period in an action.   I should note that it does not appear that the issue was squarely before those courts as it is in this motion.

I have trouble finding any uncertainty, especially subsequent to the Court of Appeal decision in Letestu Estate.  The limitation period in the Human Rights Code applies explicitly to applications to the Human Rights Tribunal.   The Limitations Act applies to claims pursued in court proceedings. If you are suing in court, and if your suit involves a “claim” as defined by the Limitations Act, its provisions apply.

 

Ontario: the principles of misnomer

 

The decision in Corp. of Township of North Shore v. Grant has a helpful summary of misnomer principles:

[18]           Nonetheless, motions to correct misnomer or misdescription are still permitted pursuant to s. 21 of the Limitations Act, 2002, which provides:

(1)   If a limitation period in respect of a claim against the person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

 (2)   Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

 [19]           Section 21 has been held to apply equally to motions in which a plaintiff seeks to substitute a plaintiff in an action, notwithstanding language that appears to refer only to defendants being substituted:  Horgan v. Tanktek Environmental Services Ltd. (2009), 178 A.C.W.S. (3d) 87 (Ont. S.C.), aff’d 2009 ONCA 820 (CanLII).

[20]           There is a debate in the jurisprudence as to whether a request to amend a pleading by adding a party who was omitted altogether from the style of cause is properly characterized as a request to correct a misnomer or misdescription.  Some cases have held that it is not and, instead, have allowed the amendment using the court’s power to cure a “technical irregularity”:  see Hastings v. Halton Condo Corp. to 324 et al., 2012 ONSC 175 (CanLII); Toronto Standard Condominium Corporation No. 810 v. King Spadina Development Corporation, 2014 ONSC 5560 (CanLII), 2014 ONSC 5560 (Master).

[21]           Regardless of the manner in which a request to substitute a plaintiff is characterized, the jurisprudence is clear that an amendment will be permitted where there is a “coincidence” between a plaintiff’s intention to sue and the intended defendant’s knowledge of the plaintiff’s intention.  In Lloyd v. Clark, 2008 ONCA 343 (CanLII), the plaintiff was denied leave by the motion judge to name the Regional Municipality of Durham as a defendant in place of the Town of Ajax and the Corporation of the Town of Whitby.  In a brief endorsement allowing the appeal, the Court of Appeal held:

The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.  [Citations omitted.]

 [22]           Although Lloyd was a case in which a plaintiff sought to substitute a defendant, it has frequently been applied in cases in which a plaintiff seeks to substitute or add a plaintiff: see, for e.g., Streamline Foods Ltd. v. Jantz Canada Corp., 2010 ONSC 6393 (CanLII), aff’d 2011 ONSC 1630 (CanLII), 2011 ONSC 1630 (Div. Ct.), 2012 ONCA 174; Tetreault v. Nussbaum, 2015 ONSC 6226 (CanLII); Asset Strategy Corp. v. Rodinia Lithium Inc., 2016 ONSC 5337 (CanLII) .

[23]           Thus, an amendment to add the name of one or more plaintiffs to a statement of claim should be permitted notwithstanding the expiry of a limitation period where the court is satisfied that the plaintiffs sought to be added to an action were intended plaintiffs prior to the expiration of the limitation period, that the defendant knew that they were intended plaintiffs, and where no prejudice arises that cannot be compensated for in costs.

[24]           I am satisfied that this is the situation here.  There is ample evidence in this case both of the intentions of the Council Members to claim against the defendant and of the defendant’s knowledge of those intentions.

Ontario: technicalities aren’t your friend

Here we have yet another example of the principle that relying on technicalities will rarely carry the day.

In Daly Square Inc. v. 1786097 Ontario Inc., the plaintiff moved for summary judgment dismissing a counterclaim as statute-barred.  The plaintiff had not requested this relief in its notice of motion, but did provide the expiry of a limitation period as a ground for relief.  The defendant (and plaintiff by counterclaim) relied on the notice of motion to argue that the motion to dismiss the counterclaim was not properly before the court.

The court, not surprisingly, had none of it:

[15]           It seems that this problem could have been avoided if the parties had clarified the issue and agreed to adjourn the motion, if necessary. The defendants were obviously aware before they prepared their factum that the limitation period applicable to the counterclaim was an issue. They responded to the issue in their factum and did not request an adjournment. Nonetheless, in these circumstances, I do not feel that it would be “just” to consider the request to dismiss the counterclaim when the request was not made in the notice of motion and the defendants are saying that they would have responded differently if it had been. However, it would not an “expeditious” or the “least expensive” approach simply to refuse to consider the limitation period when both parties have now devoted considerable time to the issue; doing so would likely prompt the plaintiff to bring a further motion, resulting in more expense and delay.

Ontario: the court will rarely consider limitations defences before pleadings clsoe

In Taylor v. Workplace Safety & Insurance Board, the Court of Appeal emphasised that only in rare cases will the court hear a motion to dismiss an action as statute-barred prior to the delivery of a defence:

[22]      Thus, it is not necessary to decide whether the motion judge was correct in holding that Taylor’s claim would be barred by the two year limitation period in the Limitations Act. We do note, however, that neither defendant has delivered a statement of defence. This court has held consistently that only in rare cases, if any, will we entertain a motion to dismiss an action as statute barred under the Limitations Act in the absence of a statement of defence. See Salewski v. Lalonde, 2017 ONCA 515 (CanLII), 137 O.R. (3d) 750, at paras. 42-46.

Ontario: the limitations act applies to claims in notices of objection

The Court of Appeal’s decision in Iaboni Estate v. Iaboni stands for the principle that a claim pursued in a notice of objection filed in an application to pass account is subject to the Limitations Act and capable of being time-barred.

[8]         At the hearing of the motion, Carlo consented to the passing of accounts from the time of the appointment of BNS, but not before. Mullins J. struck the notice of objection on three bases: (1) it was without merit, (2) it was an abuse of process for attempting to relitigate the subject matter of the appellant’s dismissed action; and (3) was time barred under the Limitations Act.

[9]         Carlo appeals the order of Mullins J., striking out the notice of objection.

[10]      We are not persuaded that the motions judge made any error. The appellant consented to the passing of accounts from the time of the appointment of BNS, and has not appealed that aspect of the order. Even if the appellant were able to identify errors with respect to the abuse of process and Limitations Act claims, the motions judge’s findings of fact on the merits are fatal to the appeal. She made findings that the appellant had not substantiated his suspicions with respect to the discharge of mortgage, the share certificate, or general dissipation of funds. She also found the evidence of the respondent Norma to be credible and reliable. Those findings are entitled to deference and are dispositive of the appeal.

Ontario: The knowledge required for discovery

This is a post purely to indulge my pedantry.  In Reece v. Toronto (Police Services Board), the Court of Appeal said this about discovery:

[5]         The motion judge correctly found that discoverability for the purpose of limitations is based upon knowledge of the facts necessary to support a claim and does not require knowledge of the law that supports the claim.

This isn’t quite right.  Discoverability for the purpose of limitations–what other purpose to does the principle have?–is codified in s. 5 of the Limitations Act and requires knowledge of the four discovery matters.  The facts necessary to support a claim are, pursuant to the definition in the s. 1 of the Limitations Act, but only two: wrongful conduct and resulting loss.  The existence of a claim and the discovery of a claim are different issues.

Ontario: The potential consequence of serving a Statement of Claim out-of-time

Scenario: A plaintiff pursues a claim by statement of claim issued within the limitation period, fails to serve the statement of claim within the time prescribed by the rules, the court refuses leave for late service, and if the plaintiff were to reissue the statement of claim the claim pursued in it would be statute-barred.  Is the claim out of time?  According to the Court of Appeal in Sultan v. Hurst, yes:

[1]         The appellant appeals the decision of the motion judge refusing to validate the late service of the statement of claim. The claim was issued within the two year limitation period following the accident, but was served more than two years after the expiry of the six month limit to serve a statement of claim set out in r. 14.08(1) of the Rules of Civil Procedure. By the time the claim was served, the limitation period had expired. Therefore, the practical effect of the motion judge’s order was to prevent the plaintiff from pursuing his claim.

I have trouble with this reasoning.  The proceeding in respect of the claim was commenced in time, which means there can be no limitations defence.  I gather that the motion judge found late service rendered the proceeding a nullity (or struck out the statement of claim?).  The motion judge’s decision isn’t available, so we can only speculate.  Either way, the impact of the decision was evidently that there was no longer a proceeding, and so it became necessary for the plaintiff to commence a new proceeding in respect of the same claim, but this new proceeding was out of time.

The Court of Appeal seems to have taken for granted that non-compliance with r. 14.08(1) nullifies (practically, if not technically) a proceeding.  I’m not sure this is necessarily so.

Ontario: Prescriptive easements (are a limitations issue)

Carpenter v. Doull-MacDonald well summarises the principles of prescriptive easements, which you may be surprised to learn is a limitations issue.  Section 31 and 32 of the Real Property Limitations Act govern the establishment of prescriptive easements:

[40]           As adjusted by the Land Titles Act,[15] discussed below, a prescriptive easement may be established in two ways under the Real Property Limitations Act,[16] and a third way pursuant to what is known as the doctrine of lost modern grant. At common law, prescription was based on the legal fiction that if there were 20 years of uninterrupted use by the owner of the dominant tenement, it could be presumed that there had been a grant of an easement and that the grant had been lost.[17]

[41]           The relevant provisions of the Real Property Limitation Act are set out below:

  1. No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
  2. Each of the respective periods of years mentioned in sections 30 and 31 shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.

[42]           Section 31 of the Real Property Limitations Act sets a 20-year period or a 40-year period for the creation of prescriptive easements. The period of alleged prescriptive use is specified to be the period immediately before the commencement of an action.[18] For an easement created by the doctrine of lost modern grant, the duration of use does not have to be a 20-year or 40-year period immediately preceding the bringing of an action.[19] The doctrine of lost modern grant establishes that where there has been 20 years of uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, the law will adopt the legal fiction that such a grant was made.[20] The nature of the enjoyment of the land necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under a statute of limitations.

[43]           To establish a prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner.[21] To acquire an easement by prescription under a statute of limitations or under the doctrine of lost modern grant, the claimant’s use of the land must be “as of right” or, as described in the old authorities, “nec vi, nec clam, nec precario”—“without violence, without stealth (secrecy), without permission”.

[44]           To say that the use of the easement must be “as of right,” is to say that the enjoyment of the easement is not just permissive (i.e., not just a licence) and the owner of the dominant tenement must actually manifest an ownership right; i.e., an entitlement to use the easement.[22] A claimant may rely on the use of predecessor owners to make up the requisite period of “as of right” use.[23]

[45]           During the 20-year period under the Real Property Limitations Act or pursuant to the doctrine of lost modern grant, the owner of the servient tenement’s oral or written consent or permission defeats any claim for a prescriptive easement.[24] During the 40-year period under the Real Property Limitations Act, a written but not an oral consent will defeat any claim for a prescriptive easement.[25]

[46]           The Ontario Law Reform Commission Report on Limitation of Actions stated that “as of right” means that the claimant must show that he or she enjoyed the easement “as if entitled to it.”[26] In the English case of De La Warr v. Miles,[27] Brett, L.J. said that “as of right” meant “that he who asserts a prescriptive right claims as having a right to do it without the Lord’s permission, and that he has so done it without that permission.”[28] The Ontario Law Reform Commission in its report, states at p. 143:

The person claiming the easement must show that the owner of the land has acquiesced in his enjoyment. The latter must have acquiesced yet not given permission. It is not easy to tell whether or not there was, in fact, acquiescence in a particular case.

[47]           The theory behind a claim for an easement based on prescription under a limitations statute or under the doctrine of lost grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of the land without conferring an ownership interest in it.[29] Use by permission or licence is insufficient for establishing a prescriptive easement.[30] The theory was explained in Sturges v. Bridgman[31] by Thesiger, LJ. as follows:

Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses.

[51]           The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations.[40] Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription.[41]