Ontario

Ontario: evidentiary issues on a motion to add a maintenance contractor

The Superior Court decision in Taylor v. Mayes is an addition to the burgeoning category of decisions in motions to add maintenance contractors after the presumptive expiry of the limitation period.

The party opposing being added in Taylor made the standard argument: “the plaintiff didn’t even enquire about whether there was an independent contractor!”  However, the court expressed doubt that the party would have answered the enquiry:

[61]           While HMQ relies on the fact that the defendants never specifically inquired about an independent contractor prior to the expiry of the presumptive limitation period, I am not satisfied that HMQ would have even provided an answer given the history of motions to compel disclosure and relevant information.  This is one of the reasons that this case can be distinguished from Ali.

This is an important point.  Whether or not the plaintiff asked a particular question per se is immaterial to the discovery argument.  What matters is whether the party opposing being added has adduced evidence that if the plaintiff had asked the question it would have been answer, and the answer would led to discovery more than two years before the plaintiff brought the motion.

The court made the point expressly in Vuniqi v. Paramount Property Management et al.:

[46]           TQ argued that the plaintiff and her lawyer could have taken a number of “reasonable and very simple steps” that would have enabled them to find out earlier that there was a winter maintenance contractor at the plaintiff’s apartment building and to identify it. TQ argued that the plaintiff or her lawyer could have asked Paramount, on the telephone, whether it had a snow removal contractor and that Mr. Butler could have asked Paramount’s insurer’s claims representative, Ms. Roode, on one of the many occasions he communicated with her. TQ also argued that although it is true that Paramount never denied liability for the plaintiff’s accident or indicated to Mr. Butler before March 11, 2019 that it would be seeking contribution or indemnity from another party, Paramount never admitted liability. TQ argued that by doing nothing beyond sending his January 30, 2017 letter, Mr. Butler did not meet the reasonable diligence test.

[47]           TQ did not, however, offer any evidence that would enable me to determine when the reasonable person in the plaintiff’s position first would have discovered the claim against TQ. There was no evidence, for example, that Paramount, having sent Mr. Butler’s January 30, 2017 letter to its insurer, subsequently would have provided Mr. Butler or the plaintiff with TQ’s identity or information about the scope of TQ’s responsibilities, if they had asked. There was no evidence to explain why Ms. Roode failed to answer Mr. Butler’s question about whether Paramount had a snow removal contractor. There was no evidence about when Ms. Roode first became aware of Paramount contract with TQ. I have already mentioned that there was evidence suggesting that Paramount was unsure, before the plaintiff was examined for discovery on March 11, 2019, whether the plaintiff fell in an area TQ was contractually obliged to maintain.

Ontario: co-owner dispossession under the RPLA

 

In Billimoria v. Mistry, the court founds that Real Property Limitation Act‘s adverse possession provisions apply to situations of co-ownership.  One co-owner may claim under the RPLA that another co-owner has been dispossessed of the property and is precluded from a claim to it because his or her rights have been extinguished:

[63]           Section 4 of the RPLA establishes a 10-year limitation period for a dispossessed owner to bring an action to recover possession, once the right to bring the action has accrued.  Section 5 is concerned with situations in which the holder of the paper title and has been dispossessed or has discontinued possession.  It provides that the right to bring an action begins at the time of dispossession or discontinuance of possession. Section 15 provides that if the dispossessed owner has not attempted to recover the land within ten years after the right to bring the action accrued, the right and title of the owner of the land is extinguished: Osman v. Heath, 2016 ONSC 4812 at para. 49.

[64]           The principals respecting adverse possession are well-established in the jurisprudence.   In Nelson (City) v. Mowatt, 2017 SCC 8 at para. 17, Brown J. explained that adverse possession is the common law doctrine “by which the right of a prior possessor off land, typically the holder of the registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time”.

[65]           This case here does not involve a trespasser.  It involves one co-owner and possessor of the land who seeks to displace ownership of another co-owner who is said to have been dispossessed of the property.  I do not accept the defendants’ position that the RPLA is inapplicable to situations of co-ownership.  I see no legal impediment to one co-owner making a claim, under this legislation, that his or her co-owner has been dispossessed of the property for ten years and, as a result, is precluded from making a claim to it because his or her rights over the land were extinguished.

Ontario: when the court can determine the timeliness of an arbitral proceeding

The Superior Court decision in Maisonneuve v. Clark makes two findings about the limitation of arbitral proceedings.

First, when a party applies for an order referring a dispute to arbitration, the court has the jurisdiction to determine the timeliness of the arbitration pursuant to s. 7(2) of the Arbitration Act.

Second, where an arbitration clause requires the parties attempt to resolve a dispute prior to requesting arbitration, arbitration won’t become an appropriate remedy (and the claim pursued in the arbitration will not be discoverable) until the satisfaction of that requirement:

[46]           In at least two cases, Ontario courts have held that, where the parties have agreed to exchange information, negotiate or mediate prior to arbitration, the limitations clock does not begin to run until they have done so.

[47]           In L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133 (CanLII), Kershman J. considered the limitations applicable to a notice of arbitration by CAE issued pursuant to a contract with L-3 that specified that the “price and other adjustments that are not agreed between the parties may be referred to arbitration … by either party”.  He held that CAE’s request to arbitrate would have been premature if attempts to negotiate a price adjustment had not yet taken place.  As a result, until the failure of negotiations, an arbitration would not be an appropriate proceeding and limitations did not begin to run. Since the notice to arbitrate was served within two years of L-3’s refusal to engage in further negotiations, the arbitration was not time-barred.

[48]           In PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 (CanLII), the Court of Appeal dismissed an appeal of an arbitrator’s ruling rejecting a limitations defence.  The parties entered into a franchise agreement whereby they had to engage in mediation of any dispute before initiating arbitration. The arbitrator concluded that arbitration was not appropriate within the meaning of s. 5(1) of the Limitations Act until after the parties had mediated or one of the parties had refused to do so.  Although the franchisee served a notice to arbitrate almost four years after the parties’ contract was rescinded, it was within two years from the franchisor’s refusal to respond to a notice to mediate. The Court of Appeal upheld the arbitrator’s decision that, in the circumstances, the arbitration proceeding was not time-barred.

[49]           Applying these decisions to this case, if I find that Arbitration Clause required the parties to attempt to resolve the Excluded Issue prior to requesting arbitration, then arbitration did not become appropriate until this occurred.  As a result, the two-year limitation period would not have begun to run until Maisonneuve realized, or ought to have realized, that Clark refused to engage in any discussions on the issue.

Ontario: the operation of municipal notice provisions

The Superior Court decision in Psaila v. Kapsalis and City of Toronto contains a useful summary of the principles for the application of municipal notice provisions:

 

[32]           Subsections 42(6) and 42(8) of the Act set out the statutory framework for purposes of this motion:

42(6) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of … has been served upon or sent by registered mail to,

(a)    the city clerk

…

      42(8) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the City is not prejudiced in its defence.

[33]           While s. 42(6) sets out a very short ten-day period for the provision of notice, s. 42(8) sets out a two-part, conjunctive, test for relief where the notice period is not complied with. As stated, the injury, in this case, occurred on March 28, 2015.

[34]           The burden is on the Plaintiff to prove that he has satisfied this two-part test: see Argue, at para. 43.

[35]           The counterpart subsections regarding this ten-day notice period for other municipalities in Ontario are found under ss. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25. These provisions also replicate the same two-part test for relief from compliance with the notice period under the Act. Accordingly, case law developed under the Municipal Act is of assistance when interpreting ss. 42(6) and (8) of the Act.

[36]           The statutory notice provision operates much like a limitation period defence insofar as a finding of non-compliance results in a bar to a plaintiff’s proceeding as against the City as opposed to extinguishing the cause of action. This has led courts to import the concept of reasonable discoverability when determining whether a plaintiff has a “reasonable excuse” justifying their delayed provision of notice: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721 (“Azzeh”). The doctrine of reasonable discoverability has no application in considering when the notice period begins to run because the statute provides for the notice period to commence from a fixed event; namely, the occurrence of the injury: Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211 (“Bourassa”), at para. 54; Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366; and Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481 (“Sief”).

[37]           The inability to have discovered sufficient facts to have reasonably discovered a potential claim against the City, despite due diligence, constitutes a reasonable excuse: Castronovo v. Sunnybrook & Women’s College Health Sciences Centre, 2008 CanLII 1174 (Ont. S.C.J.), aff’d. 2008 ONCA 655 (“Castronovo”); White v. Mannen,2011 ONSC 1058 (Ont. S.C.J.); Bourassa.

[38]           The Act imposes a very short time requirement on the plaintiff to provide the City with notice of a potential claim against it. However, the imposition of a short notice period is within the prerogative of the Legislature and supports its public policy decision: Delahaye v. City of Toronto, 2011 ONSC 5031, at paras. 33, 39. That said, pursuant to Azzeh, the words “reasonable excuse” are to be given a liberal interpretation because the plaintiff has the additional burden of demonstrating that the delay has not caused prejudice to the City: see also, Bourassa; Patrick v. Middlesex (County), 2018 ONSC 7408 (“Patrick (2018)”).

[39]           In Azzeh, at footnote 4, the Court of Appeal added that in interpreting the statute, there is a presumption of reasonableness. It is to be presumed that the Legislature does not intend unjust or inequitable results to flow from its enactments, and therefore judicial interpretations should be adopted which avoid such results. These statutory interpretation principles were particularly apt to the factual circumstances in Azzeh because the plaintiff was a minor at the time that he sustained injury. The Court held, in part, that the ten-day notice period (under the Municipal Act) did not commence until the minor had a litigation guardian, or alternatively, that he had a reasonable excuse for not bringing the action until he had a litigation guardian.

It also summaries what constitutes a “reasonable excuse”:

[41]           In Azzeh, at para. 43, the Court of Appeal affirmed that when “determining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning”.  It further stated that in considering whether the plaintiff has met his onus in showing that his delay was reasonable, the court must consider the plaintiff’s legal capacity, the length of the delay, and any explanation given for the delay. The Court also held, at para. 78, that the length of the delay affects both the reasonableness of the excuse and the issue of prejudice to the City.

[42]           An analysis of the “reasonable excuse” defence will be informed, in part, by when a plaintiff was in possession of the material facts upon which potential liability against a city or municipality may be grounded. The plaintiff must show that he exercised due diligence in pursuing these facts and did not sit on his rights.

[43]           Particularly apt to this case, a plaintiff need not be certain of his ability to prove his claim against the City to trigger the obligation to provide notice. A plaintiff need only have sufficient facts upon which to ground a potential claim. This is because all that is required under the Act is that written notice be provided. Requiring a higher degree of knowledge would frustrate the purpose of the notice period: see Bourassa, at paras. 61-62. Subject to the applicable limitation period in the Limitations Act, a plaintiff will still have time to investigate the viability of the cause of action: see Kowal v. Shyiak, 2012 ONCA 512, at paras. 18-19.

Ontario: a statute-barred debt is unprovable in bankruptcy

In In re: John Trevor Eyton, Master Mills held that a statute-barred debt is unenforceable at law and is therefore unprovable in bankruptcy:

[11]           A debt which is statute barred is unenforceable at law and therefore may not be a provable claim in bankruptcy.  A creditor ought not enjoy a windfall on an otherwise unenforceable debt simply because the debtor was assigned, voluntarily or otherwise, into bankruptcy.  To allow the statute barred debt to be proven would permit the creditor to receive dividends on a pari passu basis with all other properly proven creditors who, but for the bankruptcy, would have been able to legally enforce their debts.  Creditors must not be permitted to use the provisions of the BIA to effectively revive their enforcement rights and collect on statute barred debts.  This is not the intention of the BIA which provides for the fair and orderly distribution of the bankrupt’s property among the creditors with proven and enforceable claims.

[12]           The statute barred debt is not extinguished.  Its existence and the failure to voluntarily pay the debt may constitute an act of bankruptcy to support an application for a bankruptcy order, but contrary to the obiter of Newbould, J., the debt may not stand as a provable claim in bankruptcy.

Ontario: Divisional Court on the outcomes of an amendment motion

Sirotek v. O’Dea contains terrifically clear guidance from the Divisional Court on the potential outcomes of an amendment motion opposed on the basis of a limitations defence.  The key point is that when the court grants leave to amend because the new claim is timely, that finding must be included in the formal order:

[5]               Where a claim is dismissed on the basis of a limitations defence, the result is a final order, appealable as of right.  No motion for leave to appeal is required.

[6]                Where a motion to amend is granted on the basis that there is no genuine issue of fact and law in dispute that could result in a limitations defence succeeding, the result is again a final order, appealable as of right.  No motion for leave to appeal is required: the limitations issue has been decided against the defendant on a final basis.

[7]               Where a motion for leave to amend a claim is granted on the basis that there remain genuine issues of fact and law in dispute as to whether a limitation defence is available, or where summary judgment is dismissed on the basis that there is a triable issue in respect to a limitations defence, then the order is interlocutory, and the appeal lies to this court with leave.

[8]               It is axiomatic that an appeal is taken from the impugned order and not from the reasons given for making the order.  In the context of a motion involving a limitations argument, where the order does not finally dispose of a limitations defence, then the order is interlocutory and the limitations defence is available to the defendant at trial.  The trial judge is not bound by the views of the motions judge on the limitations argument (if any).  Appeal rights on the final disposition of a limitations defence accrue when a final disposition is ordered.

[9]               An argument advanced on this motion for leave to appeal is that the motion judge erred in law in finding that the proposed amendments do not include new causes of action.  In fact, he made no such finding.  His decision therefore does not, as the moving parties assert, “in effect create a new carve-out in the application of the Limitation Act”.

[10]           Rather, the order from which leave is sought to appeal grants a pleading amendment without reference to a limitations defence.  While it is always preferable for the parties to address with the court whether the order is made without prejudice to a limitation defence being pleaded and raised at trial, where this is not done, it does not automatically follow that the limitation defence has been finally disposed of.

[11]           In the circumstances of this case, it is therefore open to the defendants to plead that defence in response to the amended claim.

Ontario: the Limitations Act applies a to proceeding to enforce a security interest in fixtures

The Superior Court decision in Grant Thornton Limited, as Court-appointed Receiver v. 1902408 Ontario Ltd. holds that a claim to enforce a charge and security interest in fixtures is subject to the Limitations Act and not the Real Property Limitations Act.

The creditor argued that a claim to enforce its charge and security interests in fixtures involved a direct interest in real property and was therefore subject to the limitation period on s. 23(1) of the RPLA.  The creditor reasoned that at common law, fixtures are part of real property. The court rejected this argument.  The creditor’s security agreement with the debtor was governed by the PPSA, which applies to fixtures. Properly characterised, the claim was to enforce and realise on a security interest in personal property under the PPSA:

[32]           I conclude that Sluyter’s claim to enforce its charge and security interest in the Fixtures is not to recover money secured by a mortgage or lien on land, or otherwise charged upon or payable out of land. Sluyter’s claim is not subject to the ten year limitation period provided for by the RPLA. Sluyter’s claim is to enforce and realize on a security interest in personal property under the PPSA. This claim is subject to the two year limitation period in the Limitations Act, 2002. Sluyter had not commenced proceedings to enforce its rights under the GSA by August 29, 2018, the second anniversary of the date when payment of the secured indebtedness was due. Sluyter’s claim is statute barred.

Ontario: s. 16(1)(a) applies to a declaration of breach of Charter rights

In Selkirk et al. v. Trillium Gift of Life Network et al., the Superior Court held that an action seeking a declaration that Charter rights have been infringed could shelter within s. 16(1)(a) because it seeks no consequential relief:

[69]           The respondents argue that the relief sought relating to the death of Mr. Selkirk is statute barred. Mr. Selkirk died in 2010 and this application was commenced in 2015. They argue that a two-year limitation period applies to personal relief sought under s. 24(1) of the Charter.

[70]           In Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181, the court distinguished between the litigant’s personal remedies, brought by her as an individual, from an in rem remedy flowing from s. 52 of the Constitution Act, 1982. In that case, the appellant’s personal claim was statute barred, but her claim for a declaration of invalidity arising out of s. 52 was allowed to proceed.

[71]           In Alexis v. Darnley, 2009 ONCA 847, 100 O.R. (3d) 232, the Court of Appeal held that limitation periods of general application apply to an action brought by an individual for a personal remedy under s. 24(1) of the Charter. Pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the relevant limitation period is two years: Alexis, at para. 21.

[72]           Ms. Selkirk argues that the relief sought is not out of time. She relies on s. 16(1)(a) of the Limitations Act, 2002, which provides that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought. She argues that she seeks a simple declaration that Mr. Selkirk’s rights were infringed, which does not pronounce any sanction against the respondents. She seeks no consequential relief.

[73]           In determining whether the relief sought is purely declaratory, the court asks the question: if it granted the declaration, and the defendant resisted the implementation of the declaration, could the plaintiff leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process?: Skylark Holdings Limited v. Minhas, 2017 ONSC 4599, at paras. 26, 28-29, Yellowbird v. Samson Cree Nation No. 444, 2008 ABCA 270, 433 A.R. 350, at paras. 45-47.

[74]           I agree with Ms. Selkirk that the personal remedies sought with respect to Mr. Selkirk’s rights are declaratory only. If the declaratory relief is granted, Ms. Selkirk could leave the court in peace and enjoy the benefits of the declaration without further resort to the judicial process.

[75]           This is because the declaration sought would, if granted, serve the purpose of vindicating Mr. Selkirk’s Charter rights, and recognize that public confidence in the Charter may be negatively impacted when state actors violate Charter rights, especially if doing so results in death. On its own, the vindication, if warranted, would have value.

[76]           Ms. Selkirk makes no claim for monetary compensation or any other consequential relief. If the declaratory relief is granted, the court’s role is complete.

[77]           I thus find that these claims are not statute-barred.

Ontario: No limitation period applies to a request to fix costs

In Craven v. Osidacz, the plaintiff asked the court to fix costs for a motion heard in 2010.  The defendant objected based on an expired limitation period.  The Superior Court held that no limitation period applies to a request to fix costs pursuant to s. 16(1)(b) of the Limitations Act because the plaintiff was seeking to enforce a court order, and because the request was not a “claim” as defined by s. 1.

The court held that “it is not clear that the plaintiff’s request for costs constitutes a ‘claim’”.  This is correct; indeed, it’s beyond argument, and a little more certainty in the court’s statement would have been warranted.  As Kaynes and Grant Thorton hold, the “claim” derives from a cause of action, and is sometimes functionally the same.  A litigant doesn’t assert a cause of action when asking the court to fix costs, it asks the court to enforce an order.  Costs themselves aren’t a cause of action, but the exercise of judicial discretion pursuant s. 131 of the Court of Justice Act.

The court’s consideration of the meaning “claim” at paras. 36-38 is extensive and well-reasoned, but it would have been sufficient to refer to the principles set out in Kaynes regarding the meaning and function of “claim”.

The court’s discussion of s. 16(1)(b) was unnecessary, but will be useful to anyone considering its application:

[30]          The Limitations Act does not apply to the costs of the two motions because, as provided for in s. 16(1)(b) of the Act, there is “no limitation period in respect of a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of the court.”

[31]         Because both Lofchik J. and Harper J. ordered that the costs of the two motions be reserved for the trial judge, it is arguable that the plaintiff is in essence seeking to enforce an order of the court and is not bound by the limitation periods provided for in the Act.

[32]         There is little case-law citing s. 16(1)(b), but one case supports this interpretation, Pet Valu Canada Inc. v. Rodger, 2018 ONSC 3353. In that case, Pet Valu Canada Inc. (“Pet Valu”) and 1250264 Ontario Inc. (“125”) were embroiled in a class action proceeding that resulted in Pet Valu being awarded over $1.7 million in costs against 125, the representative plaintiff. 125 did not pay any of the costs and Pet Valu brought an action against 125’s sole shareholder, Mr. Rodger, for payment of the cost orders. Mr. Rodger argued that Pet Valu’s claims were statute barred, but the court unequivocally dismissed this argument because (1) as per s. 16(1)(b) there is no limitation in respect of a proceeding to enforce an order of a court, and (2) the action against Mr. Rodger (as opposed to 125) fell within the requisite time-frame. Of course, Pet Valu Canada Inc. is more straightforward because the costs were determined and Pet Valu was simply seeking to have payment enforced, unlike the present case. That being said, both Lofchik J. and Harper J. ordered that the costs were to be reserved, and this order was ultimately not dealt with nor enforced.

Ontario: the application of the s. 16(1)(h.1) exception

In T.L. v. Ottawa Police Services et al., the Superior Court found that a plaintiff’s action could not shelter within the s. 16(1)(h.1) exception to the application of the limitation period because the defendant did not owe her a private law duty.  It contains a useful summary of the application of s. 16(1)(h)(1.3):

[6]            However, the plaintiff submits this is a proceeding based on a sexual assault and accordingly she is entitled to rely on section 16 of the Limitations Act, which provides there is no limitation period for such claims. Sec. 16 provides:

No limitation period

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;

(h.2) a proceeding based on an assault if, at the time of the assault, 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 assault:

(i) they had an intimate relationship,

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

(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).

[7]            The OPS submits that the claim against them is not the type of claim enumerated in section 16 of the Limitations Act for which there is no limitation period, more specifically, the claim as against the OPS is not a claim of sexual assault as it relates to them (subparagraph (h)) nor is it a claim involving sexual misconduct with a minor as the Ottawa Police are not “the person who committed the misconduct” (subparagraph (h.1).

[8]            The Plaintiff seeks a much broader interpretation of section 16. The plaintiff’s submission is this is “a proceeding based on a sexual assault” within the literal meaning of sec. 16(1)(h). It is also said that upon reviewing subsections (h.1) and (h.2), and particularly subparagraph 1(1.3), it can be seen that the investigating officer, the defendant Keith Patrick, falls within those provisions which are not limited to the actual perpetrator of the sexual assault.

[9]            In my view sub-paragraph (1.3) clarifies that section 16 of the Limitations Act is not limited to proceedings against only the perpetrator of the sexual assault. The reference to vicarious liability makes this clear. A perpetrator can not be vicariously liable for his own conduct. The no limitation provision in section 16 is intended to include actions against third parties. The question to be answered is whether the non-perpetrator defendant was vicariously liable for the acts of the perpetrator who committed the sexual assault or owed a fiduciary duty to the victim or a duty of care in tort.

[10]        Section 16 of the Limitations Act was considered in the case of Fox v. Narine, 2016 ONSC 6499 in which a resident of the defendant, which operated a shelter for battered women, was sexually assaulted by a person who gained unlawful entry to the premises. The resident subsequently died in circumstances unrelated to this event, but her estate pursued an action against the defendant for negligence in failing to provide adequate security in the residence. The plaintiff’s estate began the action more than two years after the event, creating limitation issues under both the Limitations Act and the Trustee Act. The Court held that the estate was entitled to rely on the ‘no limitation’ provision in section 16 of the Limitations Act in its negligence claim against the defendant. Justice Lederer stated at para. 8:

Neither party disputed the idea that this sub-clause [s.16(1.3)] 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. Thus, the question is whether the defendant, … was vicariously liable for the acts of the person who committed the assault, was in a fiduciary relationship with the victim…, or owed her a duty of care or any other duty.

[11]        To summarize on the Limitations issue, I hold that the plaintiff would be entitled to rely on the no limitation provision in sec. 16 of the Limitations Act, if she is able to establish that she was owed a common law duty of care by the defendant Cst. Patrick in the circumstances of this case, that is to say, in the investigation he carried out. With respect to the OPS, it would be vicariously liable for any breaches of duty committed by Cst. Patrick or other actionable conduct on his part. It is therefore first necessary to determine the other issue on this motion, which is whether the law recognizes a common law duty of care owed to the plaintiff with respect to the criminal investigation carried out in relation to her sexual assault complaint.

[27]        In the present case, the plaintiff asserts a claim against the investigating officer for negligence in the investigation of her sexual assault complaint and against the OPS for failing to ensure the officer carried out his duties under the Police Services Act. It is pleaded that this resulted in a delay in the prosecution of the perpetrator (the defendant Lance), which caused the plaintiff mental distress and contributed to serious personal problems which arose during her adolescent years. For the foregoing reasons I find the investigating officer and the OPS did not owe the plaintiff a private law duty of care in this investigation. It follows that it is clear and obvious the plaintiff’s claim can not succeed and it is also statute barred as the plaintiff is not, in the absence of a legally recognized duty, entitled to rely on sec. 16 of the Limitations Act.