Ontario: different limitation periods apply to different claims

Kinectrics Inc. v. FCL Fisker Custome & Logistics Inc. contains the clearest statement of the principle that different claims are subject to different limitations analyses even when they arise out of similar circumstances:

[78]           […] Different causes of action can attract a different limitations analysis even where the claims arose out of common circumstances: Winmill v. Woodstock (Police Services Board)2017 ONCA 962138 O.R. (3d) 641, at paras. 17, 43, citing West v. Ontario2015 ONCA 147, at paras. 2-3Fantl v. Transamerica Life Canada2013 ONSC 229821 C.C.L.I. (5th) 175, at paras. 180-181, varied on other grounds, 2015 ONSC 1367125 O.R. (3d) 230 (Div. Ct.)2016 ONCA 633133 O.R. (3d) 422. Even if the cargo claim does not involve a discoverability analysis as contended by Anderson Haulage, the negligence and contract claims that have been pleaded do give rise to an assessment of discoverability.

To my knowledge, that principle isn’t stated elsewhere so succinctly. The appellate decisions cited aren’t quite as explicit about the point as you’d like.


Ontario: no limitation period without a claim

Justice Emery’s decision in Inzola Main Street Inc. v. Brampton (City of) is a statement of a very often overlooked but fundamental principle of the Ontario limitations scheme: there is no claim, and therefore no applicable limitation period, until the claimant suffers damage:

[51]           Inzola has made the basic submission on this motion that a limitation period for damages claim does not commence running until damage actually occurs. Mr. Svonkin refers to the definition of “claim” in section 1 of the Limitations Act 2002 as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. This language is consistent with section 5(1)(a) that sets out the components of the discoverability rule, and provides that a claim is discovered on the earlier of the day on which the person with the claim first knew that the injury loss or damage “had occurred”.

[52]           From reading the definition “claim” in section 1 that a claim must relate to damage, and to the qualifier “had occurred” to injury, loss or damage in section 5(1)(a)(i), the legislature has employed definitive language to require that the damage to which the claim relates must have taken place for the injury, loss or damage to be known. Where damage is an element of a cause of action or claim, a limitation period can only commence when the person with the claim suffers some damage that has occurred, and that damage is discoverable: Peixeiro v. Haberman1997 CanLII 325 (SCC)[1997] S.C.J. No. 31, at paras. 18 and 36, andPickering Square Inc. v. Trillium College Inc.[2016] O.J. No. 1118, at para. 33.

[53]           The prospect of injury, loss or damage at some future date is not sufficient to commence a limitation running. A claim does not arise only because a person recognizes or is concerned that they may suffer that injury, loss or damage at some point in the future. Justice Belobaba explained it this way in IPEX v. Lubrizol2012 ONSC 2717 (CanLII), at para. 22:

22.   In my view, it is self-evident that the injury, loss or damage that “has occurred” must be injury, loss or damage that was sustained by the person with the claim. It is also, in my view, a self-evident proposition of modern limitations law that the clock begins to run with actual harm (known or discoverable) and not just the possibility of future harm. The latter proposition doesn’t make any sense either in terms of public policy or otherwise.