{"id":674,"date":"2018-03-02T19:14:58","date_gmt":"2018-03-02T23:14:58","guid":{"rendered":"http:\/\/limitations.ca\/?p=674"},"modified":"2018-03-02T19:18:30","modified_gmt":"2018-03-02T23:18:30","slug":"ontario-court-of-appeal-on-the-evidentiary-required-for-discovery","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=674","title":{"rendered":"Ontario: the Court of Appeal on the evidence required for discovery"},"content":{"rendered":"

It sometimes happens that I miss notable decisions.\u00a0 And so, better late than never, I draw Crombie Property Holdings Limited v. McColl-Frontenac Inc. <\/em><\/a>to your attention.<\/p>\n

These are the noteworthy aspects of the Court of Appeal decision:<\/p>\n

1.\u00a0 It recaps the standard of review for limitations analyses:<\/p>\n

\n

[31]\u00a0\u00a0 \u00a0\u00a0\u00a0The Supreme Court of Canada in\u00a0Hryniak v. Mauldin<\/em>,\u00a02014 SCC 7 (CanLII)<\/span><\/a><\/span>, [2014] 1. S.C.R. 87, at para. 81, established the standard of review on appeal of a summary judgment. The court stated that, \u201c[w]hen the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law\u201d, reviewable only for a \u201cpalpable and overriding error\u201d, unless there is an \u201cextricable error in principle\u201d. Further, the question whether a limitation period expired prior to the commencement of an action is typically a question of mixed fact and law and therefore subject to review on a \u201cpalpable and overriding error\u201d standard:\u00a0Longo v. MacLaren Art Centre Inc.<\/em>,\u00a02014 ONCA 526<\/span>(CanLII)<\/a>,\u00a0323 O.A.C. 246<\/span>, at para. 38<\/span>. A \u201cpalpable and overriding error\u201d is \u201can obvious error that is sufficiently significant to vitiate the challenged finding of fact\u201d:\u00a0Longo<\/em>, at para. 39.<\/em><\/p>\n<\/blockquote>\n

2.\u00a0 It succinctly summarises the evidentiary burden on a summary judgment motion to dismiss on the basis of an expired limitation period:<\/p>\n

\n

[<\/a>33]\u00a0\u00a0 \u00a0\u00a0\u00a0In order to obtain a summary dismissal of the action, the moving parties were required to establish that there was no issue requiring a trial about their limitation defence. The specific issue was whether Crombie\u2019s claim in respect of the environmental contamination of its property was \u201cdiscovered\u201d within the meaning of\u00a0s. 5<\/a>\u00a0of the\u00a0Limitations Act, 2002<\/a><\/em>\u00a0before April 28, 2012.<\/p>\n<\/blockquote>\n

3.\u00a0 It cites Van Allen<\/em><\/a> for the principle that it is reasonable discovery and not the mere possibility of discovery the causes the limitation period to commence: see para. 35
\nIt inaccurately describes the knowledge necessary to cause discovery of a claim:<\/p>\n

[<\/a>35]\u00a0\u00a0 \u00a0\u00a0\u00a0The limitation period runs from when the plaintiff is actually aware of the matters referred to in\u00a0s. 5(1)<\/a>(a)(i) to (iv) or when a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known of all of those matters:\u00a0Longo<\/em>, at para. 41. The knowledge sufficient to commence the limitations clock has been described as \u201csubjective\u201d knowledge or \u201cobjective\u201d knowledge.<\/p><\/blockquote>\n

This paragraph appears to conflate the amount of knowledge required by s. 5 with the subjectivity of the knowledge.\u00a0 A claimant requires prima facie knowledge.\u00a0 This is knowledge that is greater than suspicion but less than certainty.\u00a0 See for example Brown v. Wahl<\/em><\/a>\u00a0at 15.\u00a0 Then there is question of whether the plaintiff subjectively or subjectively-objectively had this knowledge (not purely objectively, as the Court suggests in this decision, because the question asked in s. 5(1)(b) is a “modified objective” test as it doesn’t ask about the knowledge of a reasonable person, but a reasonable person with the abilities and in the circumstances of the claimant.<\/p>\n

Knowledge of a possible wrong (a mere suspicion) is insufficient for discovery of a claim; prima facie knowledge of an actual wrong is necessary:<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0\u00a0That the motion judge equated Crombie\u2019s knowledge of possible contamination with knowledge of actual contamination is apparent from her statement that \u201c[a]ll the testing that followed simply confirmed [Crombie\u2019s] suspicions about what had already been reported on\u201d (at para. 31). It was not sufficient that Crombie had suspicions or that there was possible contamination. The issue under\u00a0s. 5(1)<\/a>(a) of the\u00a0Limitations Act, 2002<\/a>\u00a0<\/em>for when a claim is discovered, is the plaintiff\u2019s \u201cactual\u201d knowledge. The suspicion of certain facts or knowledge of a potential claim may be enough to put a plaintiff on inquiry and trigger a due diligence obligation, in which case the issue is whether a reasonable person with the abilities and in the circumstances of the plaintiff ought reasonably to have discovered the claim, under\u00a0s. 5(1)<\/a>(b). Here, while the suspicion of contamination was sufficient to give rise to a duty of inquiry, it was not sufficient to meet the requirement for actual knowledge. The subsurface testing, while confirmatory of the appellant\u2019s suspicions, was the mechanism by which the appellant acquired actual knowledge of the contamination.<\/p><\/blockquote>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

It sometimes happens that I miss notable decisions.\u00a0 And so, better late than never, I draw Crombie Property Holdings Limited v. McColl-Frontenac Inc. to your attention. These are the noteworthy aspects of the Court of Appeal decision: 1.\u00a0 It recaps the standard of review for limitations analyses: [31]\u00a0\u00a0 \u00a0\u00a0\u00a0The Supreme Court of Canada in\u00a0Hryniak v. … Continue reading Ontario: the Court of Appeal on the evidence required for discovery<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[9,405,219,223,43,406,404],"class_list":["post-674","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-discovery","tag-modified-objective-test","tag-ontario-act-s-51","tag-ontario-act-s-51a","tag-ontario-court-of-appeal","tag-prima-facie-knowledge","tag-standard-of-review"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/674","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=674"}],"version-history":[{"count":4,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/674\/revisions"}],"predecessor-version":[{"id":678,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/674\/revisions\/678"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=674"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=674"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=674"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}