<\/p>\n
The Court of Appeal\u2019s decision in Presley v. Van Dusen <\/em><\/a>is a reminder that a s. 5<\/a> analysis requires making findings with respect to each s. 5(1) discovery matter, and reliance on a defendant\u2019s expertise may delay the appropriateness of a proceeding even when the defendant is not a professional.<\/p>\n This was an appeal from an appeal from a Small Claims Court trial decision.\u00a0 The trial judge found that he could determine the commencement of the limitation period without considering s. 5(1)(a)(iv):<\/p>\n [<\/a>9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The trial judge did not consider the s. 5(1)(a)(iv) criterion as to when the appellants did know or should have known that a proceeding would be an appropriate means to remedy their claim. He gave the following reason for not considering s. 5(1)(a)(iv): \u201cIt is not necessary for me to make any determination under that subsection and I do not do so as I only have to find the earliest date and I have no difficulty, as I have said, in finding that that date was the spring of 2013.\u201d<\/p>\n<\/blockquote>\n This is plainly an error of law; you can\u2019t determine discovery without considering all four discovery matters.<\/p>\n The Divisional Court nevertheless upheld the trial judge\u2019s decision.\u00a0 Having determined when a reasonable person ought to have known of the discovery matters pursuant to s. 5(1)(b), it found that there was no requirement for the trial judge to make an explicit finding as to when the plaintiff ought to have known the matter in s. 5(1)(a)(iv).<\/p>\n The Court of Appeal overturned the Divisional Court\u2019s order.\u00a0 It was an error for the trial judge not to consider s. 5(1)(a)(iv).\u00a0 The law required the trial judge to consider all four discovery matters:<\/p>\n [<\/a>14]\u00a0\u00a0 \u00a0\u00a0\u00a0The analysis of both the trial judge and the Divisional Court judge of ss. 5(1)(a)(iv), 5(1)(b) and s. 5(2) of the\u00a0Limitations Act<\/em>\u00a0is flawed. The trial judge explicitly stated that he was not considering s. 5(1)(a)(iv). A determination under s. 5(1)(b) as to the date a reasonable person would have discovered the claim requires consideration of all four \u201cmatters referred to in clause (a)\u201d. Similarly, the finding that there was insufficient evidence to rebut the presumption under s. 5(2) that the plaintiff knew all the matters referred to in s. 5(1)(a) cannot stand as there was no consideration of s. 5(1)(a)(iv).<\/p>\n [<\/a>15]\u00a0\u00a0 \u00a0\u00a0\u00a0This court has repeatedly held that consideration of when a proceeding was an appropriate means to remedy a claim is an essential element in the discoverability analysis and that failure to consider s. 5(1)(a)(iv) is an error of law:\u00a0Gillham v. Lake of Bays (Township)<\/em>,\u00a02018 ONCA 667<\/span>\u00a0(CanLII)<\/a>,\u00a0425 D.L.R. (4th) 178<\/span>, at paras. 33-34<\/span>;\u00a0Kudwah v. Centennial Apartments<\/em>,\u00a02012 ONCA 777<\/span>(CanLII)<\/a>, at paras. 1-2<\/span>;\u00a0Har Jo Management Services Canada Ltd. v. York (Regional Municipality)<\/em>,\u00a0<\/i>2018 ONCA 469<\/span>\u00a0(CanLII)<\/a>,\u00a091 R.P.R. (5th) 1<\/span>, at paras. 21 and 35<\/span>.<\/p>\n<\/blockquote>\n It\u2019s common for the court to making a determination under s. 5(1)(b) without making explicit findings as to the plaintiff\u2019s knowledge of the discovery matters (though I think everyone benefits from explicit findings).\u00a0 What makes this case unusual, and something of an outlier, is that the trial judge made this s. 5(1)(b) determination while finding that it was unnecessary to consider one of the discovery matters.\u00a0 That\u2019s the kind of error that seems especially prevalent in the Small Claims Court.<\/p>\n The Court of Appeal undertook its own s. 5(1)(a)(iv) analysis, which is noteworthy for emphasising that the superior knowledge and expertise that might engage s. 5(1)(a)(iv) is not restricted to strictly professional relationships.\u00a0 Accordingly, the plaintiffs could reasonably rely on the expertise of a person licensed to install septic systems:<\/p>\n [<\/a>21]\u00a0\u00a0 \u00a0\u00a0\u00a0These principles are applicable to the facts of this case. Van Dusen is licenced to install septic systems. The appellants contracted with him because of his special training and expertise. While the respondents argue he may not qualify as \u201can expert professional\u201d, there can be no question he did have expertise upon which the appellants reasonably relied.<\/p>\n [<\/a>22]\u00a0\u00a0 \u00a0\u00a0\u00a0Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships:\u00a0Presidential<\/em>, at para. 26. I acknowledge that the previous cases where this court has made a finding that it was reasonable for the plaintiff to rely on the defendant\u2019s superior knowledge and expertise have concerned defendants belonging to traditional expert professions. For instance,\u00a0Brown v. Baum<\/em>,\u00a02016 ONCA 325<\/span>\u00a0(CanLII)<\/a>,\u00a0397 D.L.R. (4th) 161<\/span><\/span>, involved a physician,\u00a0Chelli-Greco v. Rizk<\/em>,\u00a02016 ONCA 489 (CanLII)<\/span><\/a><\/span>, involved a dentist, and\u00a0Presidential MSH<\/em>\u00a0involved an accountant. However, recent Superior Court decisions have applied the superior knowledge and expertise prong of\u00a0Presidential MSH<\/em>\u00a0<\/i>to persons who are members of non-traditional professions or who are not professionals at all. For instance, in\u00a0YESCO Franchising LLC v. 2261116 Ontario Inc.<\/em>,\u00a02017 ONSC 4273 (CanLII)<\/span><\/a><\/span>, the court found that s. 5(1)(a)(iv) applied in a franchisor-franchisee relationship where the franchisees relied on the franchisor\u2019s superior knowledge and expertise, even though the franchisor was not a member of an expert profession. Similarly, in\u00a0Barrs v. Trapeze Capital Corp.<\/em>,\u00a0<\/i>2017 ONSC 5466 (CanLII)<\/span><\/a><\/span>, aff\u2019d\u00a02019 ONSC 67 (Div. Ct.) (CanLII)<\/span><\/a><\/span>, the Superior Court and the Divisional Court found that s. 5(1)(a)(iv) applied to investors who relied on the superior knowledge and expertise of their investment portfolio managers.<\/p>\n<\/blockquote>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The Court of Appeal\u2019s decision in Presley v. Van Dusen is a reminder that a s. 5 analysis requires making findings with respect to each s. 5(1) discovery matter, and reliance on a defendant\u2019s expertise may delay the appropriateness of a proceeding even when the defendant is not a professional. This was an appeal … Continue reading Ontario: A defendant’s expertise can impact on discovery even when the defendant isn’t a professional<\/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":[545,65,85,144,9,23,45,43],"class_list":["post-915","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ameliorative-efforts","tag-appeals","tag-appropriateness","tag-discoverability-principles","tag-discovery","tag-ontario-act-s-5","tag-ontario-act-s-51aiv","tag-ontario-court-of-appeal"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/915","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=915"}],"version-history":[{"count":1,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/915\/revisions"}],"predecessor-version":[{"id":916,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/915\/revisions\/916"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=915"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=915"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=915"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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