Ontario Court of Appeal

Ontario: the CA on the impact of related criminal proceedings on the limitation of intentional torts

In Winmill v. Woodstock (Police Services Board), the Court of Appeal considered the appropriateness of a proceeding as a remedy to battery.  The decision is generally noteworthy for the quality of its s. 5(1)(a)(iv) analysis, but also of its application of s. 5 to the interaction between claims arising from intentional torts and related to criminal proceedings.  As the court’s dissent notes, the limitation of these claims is usually determined by the misapplication of common law principles, not s. 5.

The plaintiff sued the Woodstock police for negligent investigation and battery.  The police obtained summary judgment dismissing the claim arising from the battery as statute-barred, but not the claim arising from negligent investigation.  The plaintiff appealed successfully.

Justice MacPherson and Feldman undertook a refreshingly comprehensive and sound s. 5 analysis:

[18]      Turning to s. 5(1)(a) of the LA, in this case there is no issue with respect to the first three of the four factors set out in this clause. The appellant knew that he had been injured on June 1, 2014, that the injury was caused by physical blows to his body, and that at least some of the respondents administered those blows.

[19]      The crucial issue is the fourth factor: did the appellant know on June 1, 2016 that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him?

The court summarised the principles of applicable to s. 5(1)(a)(iv) analyses:

[22]      First, the word “appropriate” means “legally appropriate”.

[…]

[23]      Second, this does not mean that determining whether a limitation period applies involves pulling two simple levers – date of injury and date of initiation of legal proceeding – and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis.

[…]

[24]      Third, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim […]

Those principles applied to the plaintiff’s claim meant it was timely:

[25]      Against this background of general principles, I turn to the motion judge’s conclusion that the appellant’s battery claim was outside (by one day) the two year limitation period prescribed by s. 4 of the LA. With respect, I think that the motion judge erred, essentially for three reasons.

[26]      First, the appellant’s negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. There was virtually no investigation in this case. The police were called, they arrived and immediately entered the appellant’s home, and some kind of altercation quickly unfolded.

[27]      In my view, the appellant’s Amended Statement of Claim shows how inextricably intertwined are the two alleged torts:

14 e.  The Defendant officers were present and knew or ought to have known that the Plaintiff did not commit an assault against any police officer. There was no reasonable cause for the Defendant officers to arrest or charge the Plaintiff with assault of a police officer.

14 f.   As the Plaintiff stood motionless, he was pushed violently in the chest by the Defendant Dopf. He was then thrown to the floor. Knee strikes and punches were then delivered by both the Defendants Dopf and Campbell. He was handcuffed, removed from the house and taken to the police station.

[28]      Second, I agree with the appellant that, in the specific factual setting of this case (407 ETR), and bearing in mind the circumstances of the person with the claim (Novak), it made sense for him to postpose deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other.

[…]

[31]      In a similar vein, it strikes me as obvious that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents.

[32]      Third, and overlapping with the second reason, there is a case almost directly on point suggesting that the appellant was justified in waiting for the verdict in his criminal trial before commencing a civil claim against the respondents. In Chimienti v. Windsor (City), 2011 ONCA 16 (CanLII), the plaintiff was charged with assault following a tavern brawl. The charge was dropped. The plaintiff commenced a civil action with claims of negligent and malicious investigation. The motion judge dismissed the action on the basis of the relevant statutory limitation period. This court, although dismissing the appeal on other grounds, disagreed with the motion judge’s analysis of the discoverability issue. In doing so, the court said, at para. 15:

[T]here is something of a logical inconsistency in asking a civil court to rule on the propriety of a criminal prosecution before the criminal court has had the opportunity to assess the merits of the underlying charge.

[33]      In my view, this passage is particularly applicable to this appeal. As I said earlier, the criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are very close to being two sides of the same coin or mirror images of each other. Accordingly, it made sense for the appellant to focus on his criminal charges and deal with those before making a final decision about a civil action against the respondents.

Justice Hourigan dissented:

[40]      In my view, the decision of this court in Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218(CanLII), 109 O.R. (3d) 652, is key to the correct outcome in this case. In that case, Sharpe J.A. explained that “appropriate” under s. 5(1)(a)(iv) of the Act must mean “legally appropriate”, and, at para. 34, admonished against giving the term a broad meaning:

To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened … would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions.

[41]      My colleague acknowledges the authority of Markel, but in my view undermines it by emphasizing the need to attend to the factual circumstances of individual cases, drawing on this court’s subsequent decisions in 407 ETR Concession Co. v. Day, 2016 ONCA 709 (CanLII), 133 O.R. (3d) 762, and Brown v. Baum, 2016 ONCA 325 (CanLII), 397 D.L.R. (4th) 161. But both of these cases are clearly distinguishable. An action in 407 ETR was not “appropriate” at the time of the injury because an alternative administrative means of settling the dispute had not been completed. An action in Brown was not “appropriate” at the time of the injury because the defendant surgeon was providing further treatment in an attempt to rectify the harm he was alleged to have caused in the initial surgery.

[42]      There was no alternative means of resolving the appellant’s allegations in this case, nor were the defendants in a position to rectify the harm they were alleged to have caused. My colleague considers it obvious that the appellant should await the outcome of the criminal proceedings against him, relying on dicta from Chimienti v. Windsor (City), 2011 ONCA 16 (CanLII), 330 D.L.R. (4th) 148. But that case, too, is distinguishable, among other reasons because it concerned claims of negligent and malicious investigation – claims that depended on the completion of the relevant criminal proceedings on which they were based.

[…]

[44]      Nor can a claimant delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings. This approach has been followed by Ontario trial courts in many cases. For example, in Brown v. Becks, 2017 ONSC 4218 (CanLII), the court held that a limitation period involving various claims against police including battery during an arrest ran from the date of the plaintiff’s arrest, not the date of his acquittal on criminal charges; in Boyce v. Toronto (City) Police Services Board, 2011 ONSC 54 (CanLII), aff’d 2012 ONCA 230 (CanLII), the limitation period in a civil action against police ran from the date of the battery rather than the officers’ conviction on assault charges. See also EBF v. HMQ in Right of Ontario, et. al, 2013 ONSC 2581 (CanLII), and Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), 2009 CarswellOnt 7412 (Ont. S.C.). Similarly, in Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973 (CanLII), 34 C.C.L.T. (4th) 177, this court affirmed the trial judge’s decision that a limitation period involving intentional tortious conduct alleged to have occurred on arrest ran from the date of the arrest rather than the date of the withdrawal of the criminal charges. See also Roda v. Toronto Police Services Board, 2016 ONSC 743 (CanLII), aff’d 2017 ONCA 768 (CanLII). My colleague offers no reason to depart from this body of law.

I disagree with this reasoning particularly in regards of the jurisprudence holding that the limitation period commence always on a certain date, like the date of an arrest.  That jurisprudence misapplies common law principles of cause of action accrual to the Limitations Act’s discovery provisions.  As I have discussed many times [cite], it is not the case under the Limitations Act that all plaintiffs will discover a claim always on the happening of a particular event, like an arrest.

Lastly, I noted that the court cited its decision in West for the principle different limitation periods may apply to different torts:

[17]      I begin with a structural point. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts: see West v. Ontario, 2015 ONCA 147 (CanLII), at paras. 2-3.

It’s not clear to me how there could be any uncertainty about this point.  The Limitations Act applies to “claims” pursued in court proceedings, that is, claims to remedy damage resulting from an act or omission.  There can only be one act or omission in a claim.  Discrete acts or omissions give rise to discrete claims.  A court may define an act expansively, so that, for example, one act of deceit is comprised of multiple unlawful acts, but an act could never be the actionable conduct in deceit and, say, negligent misrepresentation.  This applies equally to claims where the actionable conduct doesn’t sound in tort.

Ontario: Income tax limitation waivers

The Court of Appeal decision in Aubrey Dan Family Trust v. Ontario (Finance) considers whether a income tax limitation waiver form T2029 is a prescribed form under the federal Income Tax Act:

[3]         On its motion, the appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed. The appellant argued that limitation waiver form T2029, which it had submitted for the 2007 taxation year, is a prescribed form under the federal Income Tax Act, R.S.C. 1985,  c. 1 (5th Supp.) (the “Federal Act”), but the form did not operate to waive the limitation period for reassessing income tax under the Ontario Act. That is because waiver form T2029 had never been “prescribed” for the purposes of the Ontario Act by means of an order of the Provincial Minister: s. 1(1) of the Ontario Act[2]. In any event, advice from government agencies that no order or other document exists that prescribed waiver form T2029 for the purposes of the Ontario Act “called in question” whether it had been prescribed for purposes of the Ontario Act: s. 48(15) of the Ontario Act.

The Court found that it was not a prescribed form:

[6]         We do not accept the appellant’s submissions.

[7]         The combined operation of s. 10 of the Ontario Act, which adopts certain provisions of the Federal Act, and s. 152(4) of the Federal Act permit reassessment of Ontario tax after a taxpayer’s normal reassessment period in respect of a taxation year where the taxpayer “has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year”: s. 152(4)(a)(ii) of the Federal Act.

[8]         Section 48(15) of the Ontario Act states that “[e]very form purporting to be a form prescribed … by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under … [the Ontario] Act unless called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty.”

[9]          As noted by the motion judge, given the existence of a long-standing collection agreement between the Ontario government and the Federal government, by operation of s. 1(1) of the Ontario Act, “Provincial Minister” in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.

[10]      Further, waiver form T2029 “bears the insignia of the … [Canada Revenue Agency (“CRA”)] and the Government of Canada and … is regularly used by the CRA.” In the motion judge’s words, “[i]n this way, it implies or purports to be a prescribed form.” Moreover, “[e]xplicit wording on the form that it purports to be a form prescribed under the Ontario Act is not required for subsection 48(15) to apply.”

[11]       We agree with the motion judge that Murphy does not assist the appellant. In that case, it was held that a deeming provision in the Federal Act (s. 244(13)) could not assist where a document was signed and issued by a CRA official who lacked the statutory authority to do so. Here, no delegated statutory authority is required to authorize any signatures on waiver form T2029.

[12]      As the motion judge observed, this case is more akin to the decisions of the British Columbia Court of Appeal in R. v. Point,119 C.C.C. 117; R. v. Watson, 2006 BCCA 233 (CanLII), [2006] 4 C.T.C. 61; and R. v. Smith, 2007 BCCA 499 (CanLII), [2007] 1 C.T.C. 147, in which that court relied on deeming provisions in the Federal Act (s. 244(16) or a predecessor thereof), which is akin to s. 48(15) of the Ontario Act, to find that forms were prescribed forms under the Federal Act.

[13]      The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While “all statutes … must be interpreted in a textual, contextual and purposive way”, the context of an income tax statute may lead to “an emphasis on textual interpretation”: Canada Trustco Mortgage Co. v. R., 2005 SCC 54 (CanLII), [2005] 2 S.C.R. 601, at para. 11. Section 48(15) deems waiver form T2029 to be a prescribed form.

[14]      We agree with the motion judge that s. 48(15) avoids the necessity of formal proof of an order of the Minister of National Revenue and that “[t]he prescription imposed by the Minister [of National Revenue] is sufficiently evidenced by the aforesaid indicia on the form.” Further, as we have said, the appellant does not dispute that waiver form T2029 is a prescribed form for the purposes of the Federal Act.

[15]      Accordingly, under the first part of s. 48(15) of the Ontario Act, waiver form T2029 clearly purports “to be a form prescribed or authorized by the [Minister of National Revenue]”. Further, on a proper reading of the second part of s. 48(15), waiver form T2029 “shall be deemed to be a form prescribed by order of the [Minister of National Revenue] under this Act”. The meaning is clear. This form purporting to be “prescribed or authorized by the [Minister of National Revenue] shall be deemed to be … prescribed by order of the [Minister of National Revenue]” under the Ontario Act.

Frankly, I’ve included this decision because I think it might be a limitations issue, albeit an esoteric one, but I’m not sure.

Ontario: the misapplication of common law limitations principles

In Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., the Court of Appeal held that in a wrongful dismissal action, the cause of action for wrongful dismissal arises on the date of the termination notice:

[5]         The appellant submits that the motion judge erred in concluding that his cause of action for wrongful dismissal arose on the date he was provided notice and not on the last day he worked for Milo-FAIS. He argues that the motion judge’s reliance on Jones v. Friedman, 2006 CanLII 580 (ON CA), 2006 CarswellOnt 120 (C.A.) in this regard was misplaced. His submission is that the motion judge erred by conflating actual dismissal with notice of future dismissal, since in Jones the date of dismissal, as pleaded, coincided with the date of notice. According to the appellant, subsequent trial decisions relying on Jones have continued to conflate these dates.

[6]         We do not give effect to this submission and decline to adopt the restrictive interpretation of Jones urged upon us by the appellant. In Jones the notice of termination was given on December 12, 1994 and the employment ended on January 31, 1995. The breach the appellant relied on occurred on December 12, 1994 when his employment was terminated without reasonable notice. This court fully appreciated the context, and decided the date of notice of termination was when the limitation period began. Jones stands for the principle that a cause of action for wrongful dismissal arises on the date of notice of termination. The motion judge made no error in his reliance on that case or in striking the wrongful dismissal claim.

This is an example of the misapplication of common law principles to a Limitations Act analysis.  Limitation periods under the Act commence on discovery of a claim, not the accrual of a cause of action.

The words “cause of action” do not appear in the Limitations Act.  It is the discovery of a “claim”, not a cause of action, that commences time.  This is by design.  Cause of action accrual was a leading grievance in the movement to reform the former limitations scheme; it required a confounding, even esoteric analysis that resulted in ambiguity and confusion.  Here are the essential differences between a “claim” and a cause of action:

  1. A “claim” as defined by the Limitations Act is materially different than a cause of action. A “claim” is purely a limitations concept, whereas a cause of action is what entitles a plaintiff to relief from the court.  A claim has only two factual components (wrongful conduct and resulting damage), whereas a cause of action may have multiple factual components (like negligent misrepresentation, which has five).  Damage is always a component of a “claim”, whereas it is not always a component of a cause of action (such as breach of contract).
  2. Discovery of a “claim” is materially different from discovery of a cause of action. Discovery of a “claim” requires knowledge that a proceeding is an appropriate remedy, whereas at common law, discovery of a cause of action requires knowledge of its material facts.  The appropriateness of a proceeding as a remedy is not a material fact of any cause of action.
  3. “Claims” and causes of action are connected. The cause of action informs the content of the “claim”.  The wrongful conduct in the cause of action is the wrongful conduct in the Claim.  The damage that is relevant to the wrongful conduct, whether it forms part of the cause of action or not, is the damage in the Claim.

Ontario: the Court of Appeal on the limitation of unpaid invoice claims

In Collins Barrow Toronto LLP v. August Industries Inc., the Court of Appeal has held that the limitation period for a claim arising from an unpaid invoice does not run until a reasonable period of time has expired for payment of the invoice:

[5]         The other two invoices in dispute are dated April 9, 2014 and April 11, 2014.  The application judge pointed out that the engagement letters expressly provided that invoices only became delinquent once 45 days had expired from their delivery.  The application judge concluded that the limitation period for these two invoices did not commence until 45 days after they were delivered.  We agree with her conclusion in that regard.  It is consistent with the express wording of the engagement letters and also with existing case law that provides that the limitation period on an invoice does not begin to run until a reasonable period of time has expired for payment of the invoice:  see, for example, G.J. White Construction Ltd. v. Palermo, [1999] O.J. No. 5563 (S.C.J.).

The decision cited by the Court was decided under the former Limitations Act, in which the accrual of the cause of action determined the commencement of time.  In contrast, time commences under the Limitations Act on discovery of the claim.  It would have been more helpful had the Court explained what impact the passage of a reasonable amount of time has on the plaintiff’s discovery of the claim, and framed the analysis in the language of Limitations Act.  In the absence of such a s. 5 analysis, I assume the principle is that a plaintiff cannot really know that she has suffered a loss until a period of time expires after payment became due.

 

Ontario: damage occurs when there is a change in position

 

In Sirois v. Weston, the Court of Appeal cites its decision in Hamilton for the principle that damage occurs when the plaintiff suffers a change in a position, not when the change of position monetises into a specific amount:

[11]      … the plaintiff suffers damage sufficient to complete the cause of action when he enters into the transaction, not when the loss is monetized into a specific amount.

This is an essential principle in any limitations analyses.  The Limitations Act applies to “claims” (as defined by s. 1) pursued in court proceedings, and damage is an element of a “claim”.

What is not an essential principle in any Limitations Act analysis is the accrual of the cause of action.  Cause of action accrual determined the commencement of time under the former act.  If you look it up, you’ll see that limitation periods commenced when the cause of action arose.  Now look at the Limitations Act, and you’ll see that the words “cause of action” do not appear at all.  This is because MAG recommended removing the cause of action as determinative of the commencement of time in 1991 because three centuries or so of cause of action accrual had demonstrated that it was a pretty lousy animating principle of a limitations scheme.

Ontario: the running of the notice period for libel

Section 5(1) of the Libel and Slander Act provides the notice requirement for an action in libel in a newspaper:

No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

In John v. Ballingall, the Court reiterated that the day on which a plaintiff must give notice under s. 5(1) and bring an action under s. 6 begins to run when the libel comes to the knowledge of the person defamed.

 

Ontario: Briefly, the principles of s. 5(1)(a)(iv)

In Velgakis v. Servinis, the Court of Appeal conveniently reduced the s. 5(1)(a)(iv) discovery principles in Presidential to two points:

[6]         In Presidential MSH, at paras. 17-20, this court clarified certain principles governing cases such as the one before us on the issue of discoverability:

1.      A legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

2.       The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature. The plaintiff and defendant must have engaged in good faith efforts to right the wrong it caused.

Furthering the interested of brevity, in Tracy v. Iran (Information and Security),  the Court reduced the purpose of that provision to a sentence 2017 ONCA 549:

[79]      The purpose of the appropriateness criterion in s. 5(1)(iv) of the Limitations Act, 2002 is to deter needless litigation: Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325 (CanLII), at para. 17. Given that a stay of the respondents’ proceedings on the U.S. judgments would be inevitable if they were brought at common law, it would have been fruitless to commence them before 2012 when the JVTA and SIA carved out an exception to Iran’s immunity. They were therefore not appropriate or discoverable before 2012.

 

 

Ontario: limitation defences and r. 21

In Salewski v. Lalonde, the Court of Appeal casts doubt on whether there is any circumstance where r. 21.01(1)(a) is appropriate for determining a limitations issue except where pleadings have closed and the facts are undisputed:

[45]      However, the basic limitation period established by the Limitations Act, 2002 is now premised on the discoverability rule. The discoverability rule raises issues of mixed fact and law: Longo v. MacLaren Art Centre, 2014 ONCA 526 (CanLII), 323 O.A.C. 246, at para. 38. We therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear the facts are undisputed. Absent such circumstances, we are sceptical that any proposed limitation defence under the Act will involve “a question of law raised by a pleading” as required under rule 21.01(1)(a).

Ontario: RPLA applies to all claims to obtain land

After a prolonged summer break, Under the Limit returns!

In Waterstone Properties v. Caledon (Town), the Court of Appeal reminds us that s. 4 of the Real Property Limitations Act applies to any court proceeding to obtain land by court judgment:

[32]      The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost.  Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust:  Hartman Estate v. Hartfam Holdings Ltd., 2006 CanLII 266 (ON CA), [2006] O.J. No. 69, at para. 56; McConnell v. Huxtable, 2014 ONCA 86 (CanLII), 118 O.R. (3d) 561, at paras. 38-39.

As to what it means to obtain land by court judgment, some direction comes from Justice Faieta’s decision in Wilfert v. McCallum from June 2017.  The prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside a transfer of land under the Fraudulent Conveyances Act does not result in the the plaintiff obtaining land by court judgment.

[26]           With the greatest of respect for the views expressed by my colleague in Conde v. Ripley, 2015 ONSC 3342 (CanLII) at para. 48, the prospect that a financial benefit may accrue to a plaintiff/judgment creditor resulting from a declaration to set aside the transfer of land under the FCA does not result in the plaintiff “obtaining land by judgment of the Court”.  Accordingly, an action to set aside a fraudulent conveyance of land is not an action to recover land.

Ontario: CA on adding a party outside of presumptive limitation period

We overlooked this 2016 Court of Appeal decision in Arcari v. Dawson that considers adding a party to a proceeding after the presumptive expiry of the limitation period.

The Court described the relevant principles:

[10]      When a plaintiff’s motion to add a defendant is opposed on the basis that her claim is statute-barred, the motion judge is entitled to assess the record to determine whether, as a question of fact, there is a reasonable explanation on proper evidence as to why she could not have discovered the claim through the exercise of reasonable diligence. If the plaintiff does not raise any credibility issue or issue of fact that would merit consideration on a summary judgment motion or at trial and there is no reasonable explanation on the evidence as to why the plaintiff could not have discovered the claim through the exercise of reasonable diligence, the motion judge may deny the plaintiff’s motion (Pepper v. Zellers Inc. (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.), at paras. 18, 19, 24).

[…]

[15]      There is no evidence to support this submission, such as evidence from the engineer explaining why the issue was not clear to him. As is stated in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham, Ont.: LexisNexis, 2014), at para. 2.284: “it is incumbent upon the plaintiff to lead some evidence of the steps he or she took to ascertain the identity of the responsible party and provide some explanation as to why the information was not obtainable with due diligence before the expiry of the limitations period.” We also reject the appellant’s submission that merely retaining an engineer was sufficient to discharge the due diligence responsibility and postpone the limitation period indefinitely.

Two facts are noteworthy:

  1. The Court left open the possibility that it will revisit the rule in favour of committing the issue of discoverability to trial:

[17]      Although a motion to add defendants is not a motion for summary judgment, the goal of “a fair process that results in just adjudication of disputes” that is “proportionate, timely and affordable” is relevant in this context as well: Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, at para. 28. It may well be that this court should interpret Pepper in light of Hryniak and re-evaluate the suggestion that Pepper sets a strong default rule in favour of committing the issue of discoverability to trial.  We leave that matter for another day.

2.  The plaintiff claimed based on injuries resulting from being hit by a car. The plaintiff retained an accident reconstruction expert to produce a report about the cause of the accident.  This engineer found that the driver’s speed was the cause.  The plaintiff subsequently learned that the design of the crosswalk where she was hit may also have contributed to her accident and sought to sue the parties who owned it.  The Court rejected the plaintiff’s submission that merely retaining an engineer to determine the cause was sufficient to discharge the due diligence responsibility.  Arguably, this heightens the responsibility.