{"id":1113,"date":"2020-05-31T14:22:26","date_gmt":"2020-05-31T18:22:26","guid":{"rendered":"http:\/\/limitations.ca\/?p=1113"},"modified":"2020-05-31T14:22:47","modified_gmt":"2020-05-31T18:22:47","slug":"ontario-court-of-appeal-narrows-the-s-51aiv-alternative-process-principle","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1113","title":{"rendered":"Ontario: Court of Appeal narrows the s. 5(1)(a)(iv) “alternative process” principle"},"content":{"rendered":"

The Court of Appeal decision in Beniuk v. Leamington (Municipality)<\/em><\/a>\u00a0is an important addition to s. 5(1)(a)(iv)<\/a> appropriateness jurisprudence.<\/p>\n

It has become popular to argue that an alternative dispute resolution process with a clear and identifiable conclusion delays the appropriateness of a civil proceeding as a remedy, and therefore discovery of a claim.\u00a0 Beniuk<\/em> holds that this isn\u2019t the law: whether an alternative process impacts on appropriateness is a question of fact that the plaintiff must prove.<\/p>\n

The appellant in Beniuk\u00a0<\/em>argued that the Court of Appeal’s decision in\u00a0407 ETR<\/a><\/em>\u00a0stands for the principle that when there is an alternative dispute resolution process, an action becomes an appropriate remedy only when the alternative process concludes.\u00a0 It followed that\u00a0that the limitation period or the appellant’s action\u00a0didn’t not run until the OMB confirmed that it did not have jurisdiction over its cause of action: if the OMB assumed jurisdiction, there would have been no need for the action; therefore, the OMB hearing was an alternative process that until concluded rendered an action inappropriate.<\/p>\n

Nope, held the court.<\/p>\n

A limitation period doesn\u2019t run whenever there is an ongoing alternative process.\u00a0 Whether an alternative process delays the running of time turns on the particular facts of each case.\u00a0 Evidence is necessary to explain the basis for pursuing the alternative process rather than commencing a proceeding.<\/p>\n

\n

[60]\u00a0\u00a0 \u00a0\u00a0\u00a0407 ETR<\/em>\u00a0does not stand for a general principle that a limitation period will not begin to run whenever an alternative process that might resolve the matter has not yet run its course. It is a matter of evidence. Indeed, Laskin J.A. noted, at para. 34, that when an action is \u201cappropriate\u201d will depend on the specific factual or statutory setting of each individual case, and that case law applying s. 5(1)(a)(iv) is of limited assistance because each case will turn on its own facts. In\u00a0407 ETR,\u00a0<\/em>the court considered the evidence on the motion about the statutory scheme and the effectiveness of the administrative process before deciding that it would be reasonable for such a process to run its course before a civil proceeding was appropriate.<\/p>\n

[61]\u00a0\u00a0 \u00a0\u00a0\u00a0Recently, several cases considering the application of s. 5(1)(a)(iv) have come before this court. The court has emphasized, echoing the words of Laskin J.A. in\u00a0407 ETR<\/em>, that when a proceeding is appropriate will turn on the facts of each case: see, for example,\u00a0Nelson v. Lavoie<\/em>,\u00a02019 ONCA 431<\/span><\/a>,\u00a047 C.C.P.B. (2d) 1<\/span>, at para.\u00a025<\/a><\/span>, and\u00a0Ridel v. Goldberg,<\/em>\u00a02019 ONCA 636<\/span><\/a>,\u00a0436 D.L.R. (4th) 453<\/span>, at para.\u00a071<\/a><\/span>.<\/p>\n

[62]\u00a0\u00a0 \u00a0\u00a0\u00a0This case did not involve an alternative process available under a statutory scheme. It did, however, involve an alternative process that the appellants were pursuing, as in\u00a0407 ETR<\/em>,\u00a0<\/em>against the same party.<\/p>\n

[63]\u00a0\u00a0 \u00a0\u00a0\u00a0The fact that a plaintiff chooses to pursue an alternative process does not in itself suspend the running of the limitation period under s. 5(1)(a)(iv). Whether an alternative process will have this effect will depend on the particular factual circumstances and the evidence before the court in determining the limitations issue. In this case, there was no evidence to explain why the appellants chose to pursue the OMB route rather than commencing both an OMB proceeding and a civil action.<\/p>\n

[74]\u00a0\u00a0 \u00a0\u00a0\u00a0As I have already observed,\u00a0407 ETR\u00a0<\/em>does not stand for the general principle that it will always be appropriate to wait until another process has run its course before commencing a civil action in respect of a claim which has otherwise been \u201cdiscovered\u201d under s. 5(1)(a)(i), (ii) and (iii). It is incumbent on a party asserting that it was reasonable to pursue a claim in another forum to explain why this approach was reasonable. That is what occurred, and was ultimately successful, in the\u00a0407 ETR\u00a0<\/em>case.<\/p>\n

[75]\u00a0\u00a0 \u00a0\u00a0\u00a0While one of the principles recognized in connection with s. 5(1)(a)(iv) is the deterrence of unnecessary litigation, a plaintiff is not entitled in all cases to pursue one route, and to expect the limitation period to be tolled in respect of any other claim it may have in respect of its loss or damage. Said another way, s. 5(1)(a)(iv) does not permit a party to engage in litigation in stages for the same wrong. An example is\u00a0Lilydale Cooperative Limited v. Meyn Canada Inc.<\/em>,\u00a02019 ONCA 761<\/span><\/a>,\u00a0439 D.L.R. (4th) 385<\/span><\/span>, where this court considered the submission that a limitation period in respect of a third party claim in Ontario was suspended while the defendant was seeking to establish that Alberta was the correct forum for the litigation. Feldman J.A. rejected the argument that it was not legally appropriate to commence a legal proceeding while another resolution process that might resolve the matter was ongoing. She held that such an interpretation of \u201cappropriate\u201d was inconsistent with the purpose of the\u00a0Limitations Act\u00a0<\/em>and could extend the limitation period well beyond the two-year threshold in an uncertain and unpredictable manner. There were also no significant savings to be achieved by not commencing the third party claim until the forum challenge was complete.<\/p>\n

\n<\/blockquote>\n

Here, the OMB wasn\u2019t an alternative process, but an alternative forum, and the availability of multiple forums doesn\u2019t impact on discovery because the law deems a party to know the applicable legal principles (that is, which forum is correct):<\/div>\n
\n
[70]\u00a0\u00a0 \u00a0\u00a0\u00a0While I can appreciate why the appellants may have thought they had a claim for injurious affection, it has always been a principle of limitations law that a plaintiff knows, or could by the exercise of reasonable diligence, determine what legal principles apply. See, for example,\u00a0Boyce v. Toronto Police Services Board<\/em>,\u00a02011 ONSC 53<\/span><\/a><\/span>, aff\u2019d:\u00a02012 ONCA 230<\/span><\/a><\/span>, leave to appeal refused: [2012] S.C.C.A. No. 265, where Low J. stated, at para. 23:<\/div>\n
<\/div>\n
Section 5(1)(a)(iv) does not import an idiosyncratic limitation period calibrated by the claimant\u2019s familiarity with or ignorance of the law. The test is an objective one. While it is possible to envisage that a new kind of right might arise that has not been hitherto protected, thus making it arguable that a civil proceeding might not be seen objectively as an appropriate means to seek to remedy, a battery causing personal injury is a classic example of the kind of wrong that is appropriate for redress by court action.\u00a0A citizen is presumed to know the law of the land<\/u>. [Emphasis added.]<\/div>\n<\/blockquote>\n

This strikes me as a material and reasonable narrowing of the s. 5(1)(a)(iv) \u201calternative dispute resolution process\u201d principle.\u00a0 Whether an alternative process impacts on discovery is a question of fact, and the plaintiff will need to establish that it was reasonable in the circumstances to allow the process to complete before commencing a proceeding.\u00a0 This should discourage some of the more creative alternative process arguments, of which I see many.<\/p>\n

Also noteworthy is the confirmation that an action in nuisance or negligence for damages relating to real property is \u201can action to recover land\u201d for the purpose of RPLA<\/a> and subject to its ten-year limitation period:<\/p>\n

\n

[42]\u00a0\u00a0 \u00a0\u00a0\u00a0Subsection 2(1)(a) of the\u00a0Limitations Act<\/em>\u00a0provides that the\u00a0Limitations Act<\/em>\u00a0does not apply to proceedings to which the\u00a0RPLA<\/a><\/em>\u00a0applies.\u00a0Section 4<\/a>\u00a0of the\u00a0RPLA<\/a><\/em>\u00a0provides for a ten-year limitation period for an action to recover land:<\/p>\n

\u00a0No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.<\/div>\n

[43]\u00a0\u00a0 \u00a0\u00a0\u00a0When the elements that do not apply to this case are removed,\u00a0s. 4<\/a>\u00a0provides that \u201cno person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it.\u201d The issue here is whether the appellants\u2019 claim is an \u201caction to recover land\u201d within the meaning of the\u00a0RPLA<\/a><\/em>.<\/p>\n

\u00a0[44]\u00a0\u00a0 \u00a0\u00a0\u00a0The appellants point to the definition of \u201cland\u201d in\u00a0s. 1<\/a>\u00a0of the\u00a0RPLA<\/a><\/em>:<\/div>\n
\u00a0\u201cland\u201d includes\u00a0messuages<\/u>\u00a0and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs,\u00a0any<\/u>\u00a0possibility,\u00a0right<\/u>\u00a0or title\u00a0of<\/u>\u00a0entry or\u00a0action<\/u>, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency; [Emphasis added.]<\/div>\n

[45]\u00a0\u00a0 \u00a0\u00a0\u00a0They rely on the term \u201cmessuages\u201d, which refers to a dwelling house, its outbuildings, the area immediately surrounding the dwelling, and the adjacent land appropriate to its use:\u00a0McConnell v. Huxtable<\/em>,\u00a02014 ONCA 86<\/span>,\u00a0118 O.R. (3d) 561<\/span><\/a>, at para.\u00a014<\/a><\/span>. The appellants also parse out and rely on the phrase \u201cany\u2026right\u2026of\u2026action\u201d. Putting these pieces together, the appellants submit that an \u201caction to recover land\u201d includes an action to recover rights that run with the land, and that a cause of action for nuisance is tied to and arises out of the right to use and enjoy land without substantial interference. Accordingly, the appellants submit that a cause of action for nuisance is an incorporeal or intangible right that runs with the property and is captured by the definition of \u201cland\u201d in the\u00a0RPLA<\/a><\/em>. They point to a passage in\u00a0Equitable Trust Co. v. 2062277 Ontario Inc.<\/em>,\u00a02012 ONCA 235<\/span>,\u00a0109 O.R. (3d) 561<\/span><\/a><\/span>, where Perell J. (sitting on this court\u00a0ad hoc<\/em>) stated that the\u00a0RPLA<\/a><\/em>\u00a0is intended to cover actions \u201caffecting\u201d land:\u00a0Equitable Trust<\/em>, at para. 28.<\/p>\n

\u00a0[46]\u00a0\u00a0 \u00a0\u00a0\u00a0I do not accept the appellants\u2019 submission. There is no support in the jurisprudence that an action in nuisance or negligence for damages relating to real property is \u201can action to recover land\u201d for the purposes of the\u00a0RPLA<\/a><\/em>. That land or real property is involved in an action does not mean that the\u00a0RPLA<\/a><\/em>\u00a0applies:\u00a0Harvey v. Talon International Inc.<\/em>,\u00a02017 ONCA 267<\/span>,\u00a0137 O.R. (3d) 184<\/span><\/a>, at paras.\u00a051-52<\/a><\/span>. Typically, actions to recover land seek to assert property rights. And Perell J.\u2019s remark from\u00a0Equitable Trust<\/em>\u00a0that the\u00a0RPLA<\/a><\/em>\u00a0covers actions \u201caffecting\u201d land has been commented on specifically by this court, and later by Perell J. himself, as a statement that should be interpreted narrowly and not out of the context of that case.<\/div>\n<\/blockquote>\n

Lastly, I note that the court stated the standard of review with respect to each limitations issue.\u00a0 For whatever reason, the court frequently omits an explicit standard of review analysis when considering limitations issues.\u00a0 This approach is helpful and I hope to see more of it.<\/p>\n

\n

[41]\u00a0\u00a0 \u00a0\u00a0\u00a0The motion judge\u2019s conclusion that\u00a0s. 4<\/a>\u00a0of the\u00a0RPLA<\/a><\/em>\u00a0does not apply to the appellants\u2019 civil action is reviewable on a standard of correctness:\u00a0Housen v. Nikolaisen<\/em>,\u00a02002 SCC 33<\/span><\/a>,\u00a0[2002] 2 S.C.R. 235<\/span>, at para.\u00a08<\/a><\/span>. For the reasons that follow, I agree with the motion judge\u2019s conclusion on this issue.<\/p>\n

[53]\u00a0\u00a0 \u00a0\u00a0\u00a0The question of whether a limitation period expired prior to the issuance of a statement of claim is a question of mixed fact and law and subject to review on the standard of palpable and overriding error:\u00a0Longo v. MacLaren Art Centre Inc.<\/em>,\u00a02014 ONCA 526<\/span><\/a>,\u00a0323 O.A.C. 246<\/span>, at para.\u00a038<\/a><\/span>. However, where there is an extricable error of principle, the standard of review is correctness:\u00a0Housen<\/em>, at paras.\u00a08 and 36<\/a>.<\/p>\n

[79]\u00a0\u00a0 \u00a0\u00a0\u00a0The appellants contend that the motion judge made a palpable and overriding error when he concluded that their claim was statute-barred even on the basis of what he described as a \u201crolling limitation period\u201d. 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.\u00a039<\/a>.<\/p>\n<\/blockquote>\n

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

The Court of Appeal decision in Beniuk v. Leamington (Municipality)\u00a0is an important addition to s. 5(1)(a)(iv) appropriateness jurisprudence. It has become popular to argue that an alternative dispute resolution process with a clear and identifiable conclusion delays the appropriateness of a civil proceeding as a remedy, and therefore discovery of a claim.\u00a0 Beniuk holds that … Continue reading Ontario: Court of Appeal narrows the s. 5(1)(a)(iv) “alternative process” principle<\/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":[541,65,85,144,9,610,45,43,345,597,404],"class_list":["post-1113","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-alternative-dispute-resolution-processes","tag-appeals","tag-appropriateness","tag-discoverability-principles","tag-discovery","tag-nuisance","tag-ontario-act-s-51aiv","tag-ontario-court-of-appeal","tag-ontario-real-property-limitations-act-s-4","tag-recovering-real-property","tag-standard-of-review"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1113","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1113"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1113\/revisions"}],"predecessor-version":[{"id":1115,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1113\/revisions\/1115"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1113"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1113"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1113"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}