Month: June 2016

Ontario: Section 18 supersedes the common law

Section 18 of the Limitations Act provides when the limitation period for a claim for contribution and indemnity commences:

Contribution and indemnity

18. (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place.

In the common law, where a party has protected itself from liability by contract from the plaintiff, the defendant can’t compel the protected party to share the burden of compensating the plaintiff.  Does section 18 of the Limitations Act supersede the common law?

In Weinbaum v. Weirdberg, Justice Dow held, correctly I think, that it does:

[8]               The source of the position taken by the third parties is the Supreme Court of Canada decision in Giffels Associates Ltd. v. Eastern Construction Co., 1978 CanLII 39 (SCC), [1978], 2 S.C.R. 1346, which reviewed a similar situation.  In its reasons, Chief Justice Laskin (at page 1355) assumed where a plaintiff chose to sue only one of two contractors that each had a separate contract with the plaintiff after the plaintiff suffers damages from concurrent breaches of those contracts, it would be inequitable for that one contractor to bear the entire brunt of the plaintiff’s loss.  However, the court accepted that it was open to one of the contractors to protect itself from liability by a term in its contact and, as a result, the other contractor could not assert a right which would go behind that agreement and force the protected contractor to share in compensating the plaintiff for its losses.

[9]               This principle has been accepted by the Supreme Court of Canada as recently as July 29, 2011 in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at paragraph 29.  The principle has also been referred to in the decision of this court released November 24, 2011, Hiram Walker & Sons Ltd. v. Shaw Stone Webster Canada L.P.,2011 ONSC 6869 (CanLII), at paragraph 61.

[10]           This compares with the reasons of Justice Feldman on behalf of a five-member panel of the Court of Appeal inWaterloo Region District School Board et al. v. CRD Construction Ltd. et al., 2010 ONCA 838 (CanLII) where the defendant Truax Engineering Ltd. (“Truax”) provided engineering services in the rebuilding of a wall of a gymnasium of the plaintiff.  Truax completed its work by February 19, 2003 and (then) section 46(1) of the Professional Engineering Act,R.S.O. 1990, c.P.28, provided a 12-month limitation period for actions against it.  The plaintiff’s action was not commenced until June 23, 2008.  Defendants in the action crossclaimed against each other within the two years permitted by theLimitations Act, supra, and the motion by Truax for summary judgment dismissing the crossclaims was denied by the motions judge and on appeal.  No direct consideration was given to the principles enunciated in Giffels Associates Ltd. v. Eastern Construction Co., supra.

[11]           However, Justice Feldman did refer to the decision of HSBC Securities (Canada) Inc. v. Davies, Ward & Beck,2005 CanLII 1626 (ON CA), [2005] O.J. No. 277 (C.A.) which reviewed the Giffels decision (at paragraph 17).  The party in that case in the position of Weidberg submitted it preserved the integrity of the limitation regime and Justice Feldman ruled to the contrary.  As a result, I shall as well.  While the Giffels reasoning is logical and fair, it is also clear Justice Feldman accepted the intent of the legislature to alter the law so that, as indicated in paragraph 24 of her decision, “a claim for contribution and indemnity, whether in tort or otherwise, now has a two-year limitation period that is presumed to run from the date when the person who seeks contribution and indemnity is served with the plaintiff’s clam that gives rise to its claim over.”

 

Ontario: Notice under the Libel and Slander Act

In J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), the Court of Appeal held that a plaintiff will satisfy the notice provision in section 5(1) the Libel and Slander Act by giving notice which conveys the essence of the matter complained of so that the defendant can take appropriate steps to mitigate damages.

The decision contains a thorough summary of the section 5(1) jurisprudence:

[19]      A review of the authorities considering s. 5(1) of the Libel and Slander Act reveals the following principles:

i.   There is no prescribed form of notice. The notice must identify the “matter” complained of and need not describe the “statement” complained of or specify the exact words: Grossman, at pp. 501-502.

ii.     Notices need not contain the same level of particularity as a statement of claim:Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206(CanLII), at para. 5; World Sikh Organization of Canada v. CBC/Radio Canada,2007 CarswellOnt 7649 (S.C.), at para.12.

iii.            The adequacy of the notice must be assessed in the light                   of its purpose: Shtaif v. Toronto Life Publishing Co.,            2013 ONCA 405 (CanLII),366 D.L.R. (4th) 82, at para. 57.

iv.    The purpose of the notice is to call the publisher’s attention to the alleged libellous matter, so that the publisher may investigate and, if it deems it appropriate, publish a retraction, correction, or apology. This will permit the publisher to reduce or eliminate any damages: Grossman, at p. 501; see alsoJanssen-Ortho Inc. v. Amgen Canada Inc.(2005), 2005 CanLII 19660 (ON CA),256 D.L.R. (4th) 407 (Ont. C.A.), at para. 38; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 CanLII 16920 (ON CA), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused (2001), 271 N.R. 196 (note) (S.C.C.); and Canadian Union of Postal Workers, at para. 6.

v.   The appropriate test for the sufficiency of the notice is whether the notice fairly brings home to the publisher the matter complained of to permit the publisher to review the matter and decide how to respond: Grossman, at pp. 504-505; see also Siddiqui, at para. 18; Canadian Union of Postal Workers, at para. 6;Gutowski v. Clayton, 2014 ONCA 921 (CanLII), 124 O.R. (3d) 185, at para. 36; and Shtaif at para. 58.

vi.   Courts can assess the adequacy of the notice in the light of all of the surrounding circumstances: Grossman, at p. 505; see e.g. Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699, at paras. 20-22; Boyer v. Toronto Life Publishing Co. (2000), 2000 CanLII 22369 (ON SC), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.

vii.  A plaintiff may also benefit from the notice, because a timely correction, retraction, or apology may constitute a better remedy than damages:Grossman, at p. 501.

viii. There is a preference in the case law to have matters determined on the merits, rather than terminating them on technical grounds: see Grossman, at p. 505;Telegram Printing Co. v. Knott, [1917] 55 S.C.R. 631, 3 W.W.R. 335, at p. 342;Sentinel-Review Company Limited v. John R. Robinson, 1928 CanLII 9 (SCC),[1928] S.C.R. 258, at pp. 262-63; Pringle, at paras. 33-34; Boyer, at para. 19.

[20]      In summary, in considering the adequacy of a notice, the court must have regard to the purpose ofs. 5(1) and the circumstances of the particular case to determine whether it fairly alerts the publisher to the matter complained of, so that the publisher may take appropriate action.

[21]      In conducting this analysis, the court must be careful to ensure that the notice provision is not abused to shield publishers from legitimate defamation claims. Subsection 5(1) of the Libel and Slander Act was not enacted to reward publishers who are deliberately obtuse. Rather, it is designed to ensure that publishers have sufficient information to permit them to take appropriate steps to mitigate or to eliminate potential damages, if they choose to do so.

 

In the defendant’s Statement of Defence, it described the notice provision as a limitation period.  This provides a teachable moment: notice periods are not limitation periods.  Because notice periods and limitation periods have similar practical consequences, people tend to conflate them, and indeed in the Law of Limitations we treat notice provisions as if they are a subset of the law of limitations.

Justice Wilcox recently emphasised this point in Bourassa v Temiskaming Shores (City).  The plaintiff ventured a technical and rather dubious argument (of the kind that limitations issues seem to encourage): the notice provision in section 44(10) of the Municipal Act is of no force and effect because it is a limitation period, but not one listed in the schedule to s. 19 of the Limitations Act, which preserves certain former limitation periods in other acts.  Justice Wilcox followed appellate jurisprudence standing for the principle that notice periods are not limitation periods (see for example Bannon v. Thunder Bay (City) at para. 22), noted that none of the limitation periods listed in the section 19 schedule include notice periods, and concluded quite rightly that the plaintiff’s argument was baseless.

 

Ontario: interaction of the Insurance Act and Limitations Act

Justice Akhtar’s decision in Sorita v. TTC provides a helpful summary of the interaction between the Limitations Act and the statutory threshold in s. 267.5 of the Insurance Act:

[26]      As noted earlier, Ontario’s restriction on motor vehicle accident claims is contained in s. 267.5 of the Insurance Act, which provides:

(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

 [27]      Ontario’s no-fault insurance scheme means that, in the Insurance Act context, the limitation clock begins to run when the plaintiff becomes aware that their injuries constitute “permanent serious impairment”. To otherwise commence an action is futile, as no evidence would have been available of a qualifying injury: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 32. Additionally, the plaintiff in a motor vehicle claim is not required to commence an action before they know that they have a “substantial chance” of success: Everding v. Skrijel, 2010 ONCA 437 (CanLII), 100 O.R. (3d) 641, at para. 11. The inquiry to be undertaken is “whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”: Lawless v. Anderson, 2011 ONCA 102 (CanLII), at para. 23.

Readers of Under The Limit will know not to rely on Lawless v. Anderson when considering the commencement of the limitation period.  Contrary to the above, the inquiry is not when the claimant knows enough facts on which to base an allegation of negligence, but when the claimant ought to have knowledge of the section 5 discovery criteria, including that a proceeding is an appropriate remedy.  It always bears repeating: the words “cause of action” do not appear in the Limitations Act.