Ontario: Court of Appeal on the factual nature of discovery

The Court of Appeal decision in Albert Bloom Limited v. London Transit Commission contains a great statement on the factual nature of the s. 5(1)(a) analysis.  When a claimant knows the s. 5(1)(a) discovery matters is fact-specific and there’s little value in comparing the unique facts of one case to another:

 

[31]      To be clear, the determination of when a claimant obtains actual knowledge of a claim is case-specific. Little is to be gained from comparing the unique circumstances of one case to another. There is no bright-line test that establishes when a party has actual knowledge of a claim. Instead, the totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the factual circumstances. The evidence she relied on was uncontested, and I do not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact.

The decision also shows the consequences of admitting facts material to the discovery analysis in a pleading. The plaintiff argued that such an admission was ignorable “boilerplate”, but filed no evidence to support this argument (also note that the Court found that an affidavit’s double hearsay was inadmissible):

 

[32]      There is another unique circumstance in this case that supports the motion judge’s finding regarding actual knowledge. It is the plea in the statement of defence and crossclaim that the contamination was caused by a previous owner of the LTC property. That fact clearly distinguishes this case from Crombie, where there was no such plea.

[33]      On the motion and this appeal, LTC attempts to explain away that pleading: it was just a “standard pleading” and did not reflect its actual state of knowledge at the time of the filing of the statement of defence and crossclaim. However, the evidence that counsel had informed the affiant in the affidavit filed by LTC that this was a standard pleading was double hearsay. Contrary to what the affiant stated in her affidavit, on cross-examination, she testified that she had never been provided with this information by LTC’s counsel. In fact, she had received the information from her predecessor at LTC, who apparently was told the information by legal counsel. This evidence was therefore inadmissible on the motion.

[34]      LTC asserts, “[t]here was absolutely no evidence on the record before the Motions Judge to suggest that this pleading was other than a boilerplate pleading commonly set out in environmental defences without any factual knowledge attributable to LTC” : Factum, para. 27.  This submission reflects a fundamental misunderstanding of the onus on the motion. LTC’s onus was not met by asserting that there was no evidence that this was not a boilerplate pleading. LTC had an obligation to adduce compelling and admissible evidence that it was boilerplate and thus could be ignored. It failed to adduce that evidence.

Ontario: Court of Appeal on the limitation of FLA actions

The Court of Appeal decision in Malik v. Nikbakht summarises the limitation of FLA actions.  Because they are derivative, the limitation period that applies to the injured person’s action also applies to the dependant’s action:

[9]         In my view, the appeal judge was correct in holding that a s. 61 FLA claim is a cause of action that, in Mr. Malik’s case, is statute barred.

[10]       As the appeal judge correctly acknowledged, the common law does not permit family members to sue for compensation for injuries to their relatives. He explained, at para. 26, that s. 61(1) FLA therefore “created” a statutory cause of action that did not previously exist at common law: Camarata v. Morgan, 2009 ONCA 38, 246 O.A.C. 235, at para. 10.

[11]      Section 61(1) FLA provides:

If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, … children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

[12]      As put by Laskin J.A. (concurring), this provision “dramatically expanded recovery”: Macartney v. Warner (2000), 2000 CanLII 5629 (ON CA), 46 O.R. (3d) 641 (Ont. C.A.), at para. 51.

[13]      Significantly, the new cause of action created by s. 61 of the FLA is “derivative”: Camarata, at para. 9. In other words, Mr. Malik’s s. 61 FLA claim would be for his damages arising out of injuries caused to his children as the result of allegedly negligent breaches by the defendants of duties of care they owed to his children. As the appeal judge pointed out, at paras. 28-29, this is a fundamentally different claim than Mr. Malik’s negligence action, which claimed damages arising out of his own injuries caused as the result of allegedly negligent breaches by the defendants of duties of care they owed to him. Indeed, as the appeal judge recognized, at para. 17, had Mr. Malik brought his s. 61 FLA claims in a timely way, he could have done so even without instituting a negligence action of his own.

[14]      I do not read this court’s decision in Ridel v. Cassin, 2014 ONCA 763, which cites Bazkur, at para. 10, as holding that Bazkur was correctly decided. In Ridel, this court cited Bazkur, along with other authorities, only for the uncontroversial proposition that claims for additional damages arising from an existing cause of action in a timely claim are not barred by the Limitations Act, 2002. The error in Bazkur occurred in the application of that principle.

[15]      It follows that the appeal judge was correct in finding that Mr. Malik was not entitled to amend his statement of claim to bring a new statutory cause of action outside of the applicable limitation period.

 

This is settled law, but it’s never made sense to me. A person injured through fault or neglect has a cause of action in tort as against the wrongdoer.  The elements of that tort include the wrongdoer’s actionable conduct and the resulting damage to the injured person.  An FLA cause of action derives from the tort committed to the injured person in that it arises from the same actionable conduct, but the damage is to the FLA claimant, not the injured person.  Even if the FLA cause of action is conditional on the tort, they are independent causes of action based on discrete losses.

Why should the same limitation period apply to the tort and the FLA cause of action?  The FLA claimant may not discover her pecuniary loss when the injured person discovers her injury.  The injury that founds the tort and the pecuniary loss that founds the FLA claim don’t necessarily occur contemporaneously.  I’d like to think that with the right facts, the Court of Appeal might be persuaded to acknowledge this.

Ontario: Court of Appeal on the limitation of aniticatory breach actions

In Fram Elgin Mills 90 Inc. V Romandale Farms Limited, the Court of Appeal summarised the limitation of anticipatory breach actions:

[258]   An anticipatory breach of contract occurs when one party to a contract, by express language or conduct, or as a matter of implication from what it has said or done, repudiates its contractual obligations before they fall due: Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, 118 O.R. (3d) 321, at para. 22, citing G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

[259]   An anticipatory breach does not, in itself, terminate the contract. Once the offending party shows its intention not to be bound by the contract, the innocent party has a choice. The innocent party may accept the breach and elect to sue immediately for damages, in which case the innocent party must “clearly and unequivocally” accept the repudiation to terminate the contract. Alternatively, the innocent party may choose to treat the contract as subsisting, continue to press for performance, and bring the action only when the promised performance fails to materialize. However, by choosing the latter option, the innocent party is bound to accept performance if the repudiating party decides to carry out its obligations: Ali, at para. 24.

[260]   Section 4 of the Limitations Act provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Section 5(1)(a) sets out the factors for determining when a party discovers a claim. However, where the innocent party does not accept the repudiation of the contract, the limitation period does not begin to run until the breach actually occurs: Ali, at paras. 26-27.

Ontario: s. 7 capacity analyses

The Superior Court decision in Wood v. David Mitchell et al. makes two points relevant to s. 7 analyses.

First, a lawyer’s observations and views about a person’s capacity can be factors in a s. 7 analysis:

[23]            Several months after the Master wrote her endorsement, the Court of Appeal released its decision in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (CanLII). In that case, Jamal JA dealt comprehensively with the issue of proof of incapacity under s. 7 of the Limitations Act, 2002. At para. 105, he wrote:

(vii)      Evidence

[104]   A potential litigant will usually require persuasive medical or psychological evidence to prove that they lacked the capacity to commence the proceeding in respect of the claim: see e.g., Deck International Inc. v. The Manufacturers Life Assurance Company, 2012 ONCA 309, at para. 6; Winter v. Sherman Estate, 2018 ONCA 379, at para. 14, leave to appeal refused, [2019] S.C.C.A. No. 438; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17; Klimek v. Klos, [2013] O.J. No. 3740 (S.C.), at para. 25; Hussaini v. Freedman, 2013 ONSC 779, at para. 51; and Landrie, at para. 35.

[105]   Other evidence may also be relevant, such as:

  •      Evidence from persons who know the plaintiff well, the appearance and demeanour of the plaintiff, testimony of the plaintiff,or the opinion of the plaintiff’s own counsel: see e.g., Costantino v. Costantino, 2016 ONSC 7279, at para. 58; Huang, at para. 20; and Children’s Aid Society of Toronto, at para. 34;
  •      The plaintiff’s ability to commence other civil proceedings (see e.g., Asagwara v. Money Mart, 2014 ONSC 6974, at para. 72; Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, at para. 55) or to defend criminal proceedings (see e.g., Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528, at para. 32, rev’d on other grounds, 2017 ONCA 962, 138 O.R. (3d) 641; Cooper v. Comer, 2017 ONSC 4142, at para. 57); and
  •      Other indicators of capacity, such as the potential litigant’s ability to travel, instruct counsel, swear affidavits, and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: see e.g., Reid, at para. 17; Klimek, at paras. 24-25.

[106]   Finally, just because a person can function on a day-to-day basis and make the decisions required in daily life does not necessarily mean they have the capacity to start an action in respect of a claim: see Bisoukis, at para. 48. On the other hand, just because a person has a mental illness does not necessarily mean that they are incapable of instructing a lawyer or commencing a proceeding: see Mew, at p. 205, at §6.17, citing Panciera v. Rokotetsky et al., 2009 MBQB 129, 252 Man.R. (2d) 115, at para. 20; Evans v. Evans, 2017 ONSC 4345, 96 R.F.L. (7th) 300, at paras. 51-53; and Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252, at paras. 54-60, aff’d 2014 ONCA 658, 40 C.C.L.I. (5th) 12.
[Bolded emphasis added.]

[24]            Jamal JA expressly held that counsel’s opinion of a client’s capacity is evidence bearing on the issue of capacity for the purposes of s. 7 (1)(a) of the statute. He also held that evidence of the client’s ability to instruct counsel and make decisions affecting his rights will be relevant if they bear on (or are probative of) his capacity to commence a claim. To be sure, contemporaneous medical evidence is the principal means of proof of capacity or incapacity. But, as Jamal JA notes in para. 106, proof of mental illness alone is not necessarily sufficient to prove incapacity.

[25]            The Master recognized that Mr. Wood’s lawyers’ observations and views about Mr. Wood’s capacity were properly factors in the calculus. She rightly notes that this would not make the lawyers’ entire file producible per se. But, rather than delimiting the relevant portions of the file, she went straight to privilege and then held that the only producible document in the lawyers’ file would be medical evidence in the form of a formal capacity assessment, if any.

[26]            In my respectful view, the Master erred by failing to continue her analysis of relevancy. She found that the lawyers’ view was a relevant factor and then simply dismissed the request for the entire file. Mr. Veel argues that there may be many things in the file that might be relevant and not privileged. For example, if the lawyer wrote to third parties and discussed Mr. Wood’s capacity, the letter would be relevant and could not be privileged. Moreover, if the lawyer took a note of his observations of Mr. Wood’s physical, cognitive, or emotional state those could be facts relevant to capacity without being privileged communications.

Second, when assessing whether a plaintiff is represented by a litigation guardian, the question is not merely whether the plaintiff’s litigation guardian has announced him or herself to the defendants:

[44]            The discussion of “holding out” in Azzeh related to the reasons why the irregularity in the manner of appointment of the litigation guardian was nevertheless sufficient under s. 7 (1)(b). But did the Court of Appeal mean to say that holding out is always necessary to satisfy s. 7 (1)(b)? Maybe. Or perhaps there may be other factors at play in a case where litigation is actually commenced with no litigation guardian by a plaintiff who later claims he was incapacitated at the time. That is a different question and a difficult one at that.

[45]            Ms. McFarlane argues that under s. 9 of the Limitations Act, 2002, defendants have the opportunity to move to appoint a litigation guardian for a reluctant plaintiff so there is no risk of an unlimited extension of the limitation period. That may be correct. But it appears to also have been the case in Azzeh had it been argued. That may be one of many open questions to be resolved.

[46]            In my respectful view, the Master erred in law in finding that all that is relevant to the question of whether a plaintiff “is … represented by a litigation guardian in relation to the claim” under s. 7 (1)(b) of the Limitations Act, 2002, is whether…“Mr. McQueen represented himself to the any of the defendants as Mr. Wood’s litigation guardian.” That is one factor that made an imperfect commencement of a claim sufficient in Azzeh. But no case has decided that it is the only relevant factor or a necessary factor in every case. If it is, it may provide a significant loophole to de facto litigation guardians who keep quiet. In my view, it is an open question. The relevant question of law is in issue in a bona fide and not frivolous way. Such questions are for the trial judge on a full evidentiary record. They are not for resolution on a production motion. See: Jodi L. Feldman Professional Corporation v. Foulidis, 2018 CanLII 121633 (ON SC), at para. 21.

Ontario: evidentiary issues on a motion to add a maintenance contractor

The Superior Court decision in Taylor v. Mayes is an addition to the burgeoning category of decisions in motions to add maintenance contractors after the presumptive expiry of the limitation period.

The party opposing being added in Taylor made the standard argument: “the plaintiff didn’t even enquire about whether there was an independent contractor!”  However, the court expressed doubt that the party would have answered the enquiry:

[61]           While HMQ relies on the fact that the defendants never specifically inquired about an independent contractor prior to the expiry of the presumptive limitation period, I am not satisfied that HMQ would have even provided an answer given the history of motions to compel disclosure and relevant information.  This is one of the reasons that this case can be distinguished from Ali.

This is an important point.  Whether or not the plaintiff asked a particular question per se is immaterial to the discovery argument.  What matters is whether the party opposing being added has adduced evidence that if the plaintiff had asked the question it would have been answer, and the answer would led to discovery more than two years before the plaintiff brought the motion.

The court made the point expressly in Vuniqi v. Paramount Property Management et al.:

[46]           TQ argued that the plaintiff and her lawyer could have taken a number of “reasonable and very simple steps” that would have enabled them to find out earlier that there was a winter maintenance contractor at the plaintiff’s apartment building and to identify it. TQ argued that the plaintiff or her lawyer could have asked Paramount, on the telephone, whether it had a snow removal contractor and that Mr. Butler could have asked Paramount’s insurer’s claims representative, Ms. Roode, on one of the many occasions he communicated with her. TQ also argued that although it is true that Paramount never denied liability for the plaintiff’s accident or indicated to Mr. Butler before March 11, 2019 that it would be seeking contribution or indemnity from another party, Paramount never admitted liability. TQ argued that by doing nothing beyond sending his January 30, 2017 letter, Mr. Butler did not meet the reasonable diligence test.

[47]           TQ did not, however, offer any evidence that would enable me to determine when the reasonable person in the plaintiff’s position first would have discovered the claim against TQ. There was no evidence, for example, that Paramount, having sent Mr. Butler’s January 30, 2017 letter to its insurer, subsequently would have provided Mr. Butler or the plaintiff with TQ’s identity or information about the scope of TQ’s responsibilities, if they had asked. There was no evidence to explain why Ms. Roode failed to answer Mr. Butler’s question about whether Paramount had a snow removal contractor. There was no evidence about when Ms. Roode first became aware of Paramount contract with TQ. I have already mentioned that there was evidence suggesting that Paramount was unsure, before the plaintiff was examined for discovery on March 11, 2019, whether the plaintiff fell in an area TQ was contractually obliged to maintain.

Ontario: co-owner dispossession under the RPLA

 

In Billimoria v. Mistry, the court founds that Real Property Limitation Act‘s adverse possession provisions apply to situations of co-ownership.  One co-owner may claim under the RPLA that another co-owner has been dispossessed of the property and is precluded from a claim to it because his or her rights have been extinguished:

[63]           Section 4 of the RPLA establishes a 10-year limitation period for a dispossessed owner to bring an action to recover possession, once the right to bring the action has accrued.  Section 5 is concerned with situations in which the holder of the paper title and has been dispossessed or has discontinued possession.  It provides that the right to bring an action begins at the time of dispossession or discontinuance of possession. Section 15 provides that if the dispossessed owner has not attempted to recover the land within ten years after the right to bring the action accrued, the right and title of the owner of the land is extinguished: Osman v. Heath, 2016 ONSC 4812 at para. 49.

[64]           The principals respecting adverse possession are well-established in the jurisprudence.   In Nelson (City) v. Mowatt, 2017 SCC 8 at para. 17, Brown J. explained that adverse possession is the common law doctrine “by which the right of a prior possessor off land, typically the holder of the registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time”.

[65]           This case here does not involve a trespasser.  It involves one co-owner and possessor of the land who seeks to displace ownership of another co-owner who is said to have been dispossessed of the property.  I do not accept the defendants’ position that the RPLA is inapplicable to situations of co-ownership.  I see no legal impediment to one co-owner making a claim, under this legislation, that his or her co-owner has been dispossessed of the property for ten years and, as a result, is precluded from making a claim to it because his or her rights over the land were extinguished.

Ontario: when the court can determine the timeliness of an arbitral proceeding

The Superior Court decision in Maisonneuve v. Clark makes two findings about the limitation of arbitral proceedings.

First, when a party applies for an order referring a dispute to arbitration, the court has the jurisdiction to determine the timeliness of the arbitration pursuant to s. 7(2) of the Arbitration Act.

Second, where an arbitration clause requires the parties attempt to resolve a dispute prior to requesting arbitration, arbitration won’t become an appropriate remedy (and the claim pursued in the arbitration will not be discoverable) until the satisfaction of that requirement:

[46]           In at least two cases, Ontario courts have held that, where the parties have agreed to exchange information, negotiate or mediate prior to arbitration, the limitations clock does not begin to run until they have done so.

[47]           In L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133 (CanLII), Kershman J. considered the limitations applicable to a notice of arbitration by CAE issued pursuant to a contract with L-3 that specified that the “price and other adjustments that are not agreed between the parties may be referred to arbitration … by either party”.  He held that CAE’s request to arbitrate would have been premature if attempts to negotiate a price adjustment had not yet taken place.  As a result, until the failure of negotiations, an arbitration would not be an appropriate proceeding and limitations did not begin to run. Since the notice to arbitrate was served within two years of L-3’s refusal to engage in further negotiations, the arbitration was not time-barred.

[48]           In PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 (CanLII), the Court of Appeal dismissed an appeal of an arbitrator’s ruling rejecting a limitations defence.  The parties entered into a franchise agreement whereby they had to engage in mediation of any dispute before initiating arbitration. The arbitrator concluded that arbitration was not appropriate within the meaning of s. 5(1) of the Limitations Act until after the parties had mediated or one of the parties had refused to do so.  Although the franchisee served a notice to arbitrate almost four years after the parties’ contract was rescinded, it was within two years from the franchisor’s refusal to respond to a notice to mediate. The Court of Appeal upheld the arbitrator’s decision that, in the circumstances, the arbitration proceeding was not time-barred.

[49]           Applying these decisions to this case, if I find that Arbitration Clause required the parties to attempt to resolve the Excluded Issue prior to requesting arbitration, then arbitration did not become appropriate until this occurred.  As a result, the two-year limitation period would not have begun to run until Maisonneuve realized, or ought to have realized, that Clark refused to engage in any discussions on the issue.

Ontario: the operation of municipal notice provisions

The Superior Court decision in Psaila v. Kapsalis and City of Toronto contains a useful summary of the principles for the application of municipal notice provisions:

 

[32]           Subsections 42(6) and 42(8) of the Act set out the statutory framework for purposes of this motion:

42(6) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of … has been served upon or sent by registered mail to,

(a)    the city clerk

…

      42(8) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the City is not prejudiced in its defence.

[33]           While s. 42(6) sets out a very short ten-day period for the provision of notice, s. 42(8) sets out a two-part, conjunctive, test for relief where the notice period is not complied with. As stated, the injury, in this case, occurred on March 28, 2015.

[34]           The burden is on the Plaintiff to prove that he has satisfied this two-part test: see Argue, at para. 43.

[35]           The counterpart subsections regarding this ten-day notice period for other municipalities in Ontario are found under ss. 44(10) and (12) of the Municipal Act, 2001, S.O. 2001, c. 25. These provisions also replicate the same two-part test for relief from compliance with the notice period under the Act. Accordingly, case law developed under the Municipal Act is of assistance when interpreting ss. 42(6) and (8) of the Act.

[36]           The statutory notice provision operates much like a limitation period defence insofar as a finding of non-compliance results in a bar to a plaintiff’s proceeding as against the City as opposed to extinguishing the cause of action. This has led courts to import the concept of reasonable discoverability when determining whether a plaintiff has a “reasonable excuse” justifying their delayed provision of notice: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721 (“Azzeh”). The doctrine of reasonable discoverability has no application in considering when the notice period begins to run because the statute provides for the notice period to commence from a fixed event; namely, the occurrence of the injury: Bourassa v. Temiskaming Shores (City), 2016 ONSC 1211 (“Bourassa”), at para. 54; Crinson v. Toronto (City), 2010 ONCA 44, 100 O.R. (3d) 366; and Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481 (“Sief”).

[37]           The inability to have discovered sufficient facts to have reasonably discovered a potential claim against the City, despite due diligence, constitutes a reasonable excuse: Castronovo v. Sunnybrook & Women’s College Health Sciences Centre, 2008 CanLII 1174 (Ont. S.C.J.), aff’d. 2008 ONCA 655 (“Castronovo”); White v. Mannen,2011 ONSC 1058 (Ont. S.C.J.); Bourassa.

[38]           The Act imposes a very short time requirement on the plaintiff to provide the City with notice of a potential claim against it. However, the imposition of a short notice period is within the prerogative of the Legislature and supports its public policy decision: Delahaye v. City of Toronto, 2011 ONSC 5031, at paras. 33, 39. That said, pursuant to Azzeh, the words “reasonable excuse” are to be given a liberal interpretation because the plaintiff has the additional burden of demonstrating that the delay has not caused prejudice to the City: see also, Bourassa; Patrick v. Middlesex (County), 2018 ONSC 7408 (“Patrick (2018)”).

[39]           In Azzeh, at footnote 4, the Court of Appeal added that in interpreting the statute, there is a presumption of reasonableness. It is to be presumed that the Legislature does not intend unjust or inequitable results to flow from its enactments, and therefore judicial interpretations should be adopted which avoid such results. These statutory interpretation principles were particularly apt to the factual circumstances in Azzeh because the plaintiff was a minor at the time that he sustained injury. The Court held, in part, that the ten-day notice period (under the Municipal Act) did not commence until the minor had a litigation guardian, or alternatively, that he had a reasonable excuse for not bringing the action until he had a litigation guardian.

It also summaries what constitutes a “reasonable excuse”:

[41]           In Azzeh, at para. 43, the Court of Appeal affirmed that when “determining what constitutes a reasonable excuse, the words should be given their plain and ordinary meaning”.  It further stated that in considering whether the plaintiff has met his onus in showing that his delay was reasonable, the court must consider the plaintiff’s legal capacity, the length of the delay, and any explanation given for the delay. The Court also held, at para. 78, that the length of the delay affects both the reasonableness of the excuse and the issue of prejudice to the City.

[42]           An analysis of the “reasonable excuse” defence will be informed, in part, by when a plaintiff was in possession of the material facts upon which potential liability against a city or municipality may be grounded. The plaintiff must show that he exercised due diligence in pursuing these facts and did not sit on his rights.

[43]           Particularly apt to this case, a plaintiff need not be certain of his ability to prove his claim against the City to trigger the obligation to provide notice. A plaintiff need only have sufficient facts upon which to ground a potential claim. This is because all that is required under the Act is that written notice be provided. Requiring a higher degree of knowledge would frustrate the purpose of the notice period: see Bourassa, at paras. 61-62. Subject to the applicable limitation period in the Limitations Act, a plaintiff will still have time to investigate the viability of the cause of action: see Kowal v. Shyiak, 2012 ONCA 512, at paras. 18-19.

Ontario: a statute-barred debt is unprovable in bankruptcy

In In re: John Trevor Eyton, Master Mills held that a statute-barred debt is unenforceable at law and is therefore unprovable in bankruptcy:

[11]           A debt which is statute barred is unenforceable at law and therefore may not be a provable claim in bankruptcy.  A creditor ought not enjoy a windfall on an otherwise unenforceable debt simply because the debtor was assigned, voluntarily or otherwise, into bankruptcy.  To allow the statute barred debt to be proven would permit the creditor to receive dividends on a pari passu basis with all other properly proven creditors who, but for the bankruptcy, would have been able to legally enforce their debts.  Creditors must not be permitted to use the provisions of the BIA to effectively revive their enforcement rights and collect on statute barred debts.  This is not the intention of the BIA which provides for the fair and orderly distribution of the bankrupt’s property among the creditors with proven and enforceable claims.

[12]           The statute barred debt is not extinguished.  Its existence and the failure to voluntarily pay the debt may constitute an act of bankruptcy to support an application for a bankruptcy order, but contrary to the obiter of Newbould, J., the debt may not stand as a provable claim in bankruptcy.

Ontario: Divisional Court on the outcomes of an amendment motion

Sirotek v. O’Dea contains terrifically clear guidance from the Divisional Court on the potential outcomes of an amendment motion opposed on the basis of a limitations defence.  The key point is that when the court grants leave to amend because the new claim is timely, that finding must be included in the formal order:

[5]               Where a claim is dismissed on the basis of a limitations defence, the result is a final order, appealable as of right.  No motion for leave to appeal is required.

[6]                Where a motion to amend is granted on the basis that there is no genuine issue of fact and law in dispute that could result in a limitations defence succeeding, the result is again a final order, appealable as of right.  No motion for leave to appeal is required: the limitations issue has been decided against the defendant on a final basis.

[7]               Where a motion for leave to amend a claim is granted on the basis that there remain genuine issues of fact and law in dispute as to whether a limitation defence is available, or where summary judgment is dismissed on the basis that there is a triable issue in respect to a limitations defence, then the order is interlocutory, and the appeal lies to this court with leave.

[8]               It is axiomatic that an appeal is taken from the impugned order and not from the reasons given for making the order.  In the context of a motion involving a limitations argument, where the order does not finally dispose of a limitations defence, then the order is interlocutory and the limitations defence is available to the defendant at trial.  The trial judge is not bound by the views of the motions judge on the limitations argument (if any).  Appeal rights on the final disposition of a limitations defence accrue when a final disposition is ordered.

[9]               An argument advanced on this motion for leave to appeal is that the motion judge erred in law in finding that the proposed amendments do not include new causes of action.  In fact, he made no such finding.  His decision therefore does not, as the moving parties assert, “in effect create a new carve-out in the application of the Limitation Act”.

[10]           Rather, the order from which leave is sought to appeal grants a pleading amendment without reference to a limitations defence.  While it is always preferable for the parties to address with the court whether the order is made without prejudice to a limitation defence being pleaded and raised at trial, where this is not done, it does not automatically follow that the limitation defence has been finally disposed of.

[11]           In the circumstances of this case, it is therefore open to the defendants to plead that defence in response to the amended claim.