<\/p>\n
Is commencing a proceeding in respect of a claim determinative of the discovery of that claim?\u00a0 Not always, according to the Court of Appeal in Har Jo Management Services Canada Ltd. V. York (Regional Municipality)<\/em><\/a>.<\/p>\n Flood waters flowing from adjacent land, which the respondent municipality had expropriated for a construction project, damaged the appellant’s property.<\/p>\n In 2011, the appellant commenced proceeding before the Ontario Municipal Board claiming damages for injurious affection in respect of the expropriation.<\/p>\n On June 3, 2013, the appellant sent a letter to the respondent stating that its activities on the adjacent land caused the flooding and resulting damage.\u00a0 The respondent denied causing the flooding on June 28, 2013.<\/p>\n The appellant commenced an action two years form the respondent’s denial.\u00a0 The respondent pleaded a limitations defence and move for summary judgment .<\/p>\n The Statement of Claim tracked the language of the appellant’s claim to the respondent.\u00a0 The Motion Judge found that the appellant knew of his claim on the day he issued it.<\/p>\n Not so, held the Court of Appeal.\u00a0 The Expropriations Act<\/em><\/a> provides for damages for injurious affection and gives the OMB exclusive jurisdiction to award such damages.\u00a0 If the flooding damage was caused by the respondent’s construction, the Superior Court would have no jurisdiction to hear the claim.<\/p>\n The appellant’s evidence explained that, to the extent the damage from the flood properly formed part of a claim for damages for injurious affection under the Expropriations Act<\/em>, it would be part of the appellant’s existing OMB claim.\u00a0 The action was merely “out of an abundance of caution” in case it turned out that the flooding was not caused by the respondent’s construction, but by some other factors that did not meet the definition of injurious affection.<\/p>\n There was no suggestion that something other than the construction might have caused the flooding until the respondent’s June 28, 2013 letter.\u00a0 It was on this date that that appellant knew that a proceeding was an appropriate remedy for a claim against the respondent and not a proceeding before the OMB.<\/p>\n The curious aspect of this decision is that issuing a statement of claim (or even drafting the statement of claim) was not determinative of the discovery of the claim it pleads.\u00a0 There is authority for the principle that it is\u00a0logically inconsistent <\/a>for a\u00a0plaintiff to commence an action before discovering a claim.\u00a0 See also s. 14(3) of the Limitations Act<\/a>.<\/p>\n It’s certainly hard to understand how a court could find that a statement of claim does not indicate discovery of the claim pleaded in it, or that objective discovery can\u00a0occur after subjective discovery.<\/p>\n Here, the\u00a0Court seems to have avoided this problem by finding that the\u00a0appellant’s evidence demonstrated that the statement of claim did not indicate subjective discovery of the claim.\u00a0 This is likely\u00a0to happen very rarely, and I expect that this decision will be an outlier.<\/p>\n I think the limitations defence might have been avoided\u00a0if the statement of claim (which I haven’t seen) had pleaded explicitly that it advanced a claim only in regards of the damage that was not within the OMB’s exclusive jurisdiction.<\/p>\n","protected":false},"excerpt":{"rendered":" Is commencing a proceeding in respect of a claim determinative of the discovery of that claim?\u00a0 Not always, according to the Court of Appeal in Har Jo Management Services Canada Ltd. V. York (Regional Municipality). Flood waters flowing from adjacent land, which the respondent municipality had expropriated for a construction project, damaged the appellant’s … Continue reading Ontario: sometimes issuing a statement of claim doesn’t mean discovery of the claim<\/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":[4],"tags":[190,144,9,475,476,36],"class_list":["post-779","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-civil-procedure","tag-discoverability-principles","tag-discovery","tag-expropriations","tag-logical-inconsistencies","tag-pleading"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/779","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=779"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/779\/revisions"}],"predecessor-version":[{"id":781,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/779\/revisions\/781"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=779"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=779"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=779"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}