<\/p>\n
Davies v. Davies Smith Developments Partnership <\/em><\/a>is another decision from the Court of Appeal that delineates when a proceeding will be an appropriate remedy for\u00a0a plaintiff’s loss.\u00a0 The defendant’s lack of funds to satisfy its debt to the plaintiff\u00a0did not prevent a claim from being an appropriate remedy for the debt.\u00a0 The decision also reiterates the distinction between damage and damages:<\/p>\n [<\/a>11]\u00a0\u00a0 \u00a0\u00a0\u00a0In asserting that the limitation period had not expired, the appellant submits that: (a) the amount owing to the appellant was in dispute; (b) the profits could not be ascertained until the partnership\u2019s projects had been completed; (c) an action was not an \u201cappropriate\u201d means to remedy the appellant\u2019s loss because he knew the partnership did not have funds; and (d) there had been forbearance or novation, making it inappropriate to commence an action. The appellant submits that the claim was not discovered until 2011, when he realized that the respondent had made improper charges to his capital account.<\/p>\n [<\/a>12]\u00a0\u00a0 \u00a0\u00a0\u00a0We agree with the respondent that the first two submissions confuse \u201cdamage\u201d with \u201cdamages\u201d. The appellant knew by the end of June 2008 that he had suffered\u00a0damage<\/span>, even though the amount of his\u00a0damages<\/span>\u00a0was a matter of dispute and had not been quantified: see\u00a0Hamilton (City) v. Metcalfe & Mansfield Capital Corporation<\/em>,\u00a02012 ONCA 156<\/span>\u00a0(CanLII)<\/a>,\u00a0347 D.L.R. (4th) 657<\/span>, at paras. 54 and 58<\/span>.<\/p>\n [<\/a>13]\u00a0\u00a0 \u00a0\u00a0\u00a0The third submission that the respondent did not have the funds to pay, while perhaps explaining the appellant\u2019s conduct, did not stop the limitation period from running. The appellant\u2019s claim was \u201cfully ripened\u201d by July 2008. The word \u201cappropriate\u201d, as it appears in s. 5 of the\u00a0Limitations Act<\/em>, means \u201clegally appropriate\u201d. The appellant cannot rely on his own tactical reasons for delaying the commencement of legal proceedings: see\u00a0Markel Insurance Company of Canada v. ING Insurance Company of Canada<\/em>,\u00a02012 ONCA 218<\/span>\u00a0(CanLII)<\/a>,\u00a0348 D.L.R. (4th) 744<\/span>, at para. 34<\/span>.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":" Davies v. Davies Smith Developments Partnership is another decision from the Court of Appeal that delineates when a proceeding will be an appropriate remedy for\u00a0a plaintiff’s loss.\u00a0 The defendant’s lack of funds to satisfy its debt to the plaintiff\u00a0did not prevent a claim from being an appropriate remedy for the debt.\u00a0 The decision also … Continue reading Ontario: the defendant’s inability to satisfy a debt doesn’t make a proceeding inappropriate<\/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":[85,9,193,45,43,490],"class_list":["post-810","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-appropriateness","tag-discovery","tag-legal-appropriateness","tag-ontario-act-s-51aiv","tag-ontario-court-of-appeal","tag-whats-not-appropriate"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/810","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=810"}],"version-history":[{"count":1,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/810\/revisions"}],"predecessor-version":[{"id":811,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/810\/revisions\/811"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=810"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=810"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=810"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}