Summary Judgment - Limitations
Limitations - Discoverability - Appropriate Means
Nasr Hospitality Services Inc. v. Intact Insurance (Ont CA, 2018)
In this case the Court of Appeal discusses the interaction between the summary judgment rule and the 'appropriate means' aspect of the limitation discoverability test [s.5(1)(a)(iv)]:
 Since the 2010 amendments to the summary judgment rule and the Supreme Court’s strong endorsement in Hryniak v. Mauldin, 2014 SCC 7 (CanLII),  1 S.C.R. 87, of the use of summary judgment as a procedural device by which to secure the final adjudication of a civil case on its merits, defendants frequently resort to a summary judgment motion to determine whether the plaintiff’s action is barred by the operation of a limitation period.
 Hryniak teaches that “[t]here will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits” of the motion because the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means” than other devices for reaching a final adjudication on the merits to achieve a just result: at para. 49 (emphasis added).
 In order for a motion judge to grant summary judgment dismissing a plaintiff’s action or, as occurred in the present case, to grant a declaration about when the limitation period began to run, the judge is required make certain necessary findings of fact. Those necessary findings of fact concern one presumption and two dates, as set out in ss. 5(1)(a), 5(1)(b) and 5(2) of the Act. Those provisions state:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
 Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv) – namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.
 In the present case, although the motion judge granted an order declaring that the basic limitation period did not begin to run until July 2013, he failed to make express findings of many of the facts necessary to make such an order. Instead, he proceeded on the basis of two “assumptions”: (i) Nasr’s cause of action for breach of the Policy arose on February 1, 2013; and (ii) that date also was the date on which Nasr knew the matters described in ss. 5(1)(a)(i)-(iii). In the case of each assumption, the motion judge stated he was assuming the fact, without deciding it.
 Taking the motion judge’s reasons literally, if he did not find, as facts, the days on which Nasr knew or ought to have known the matters described in ss. 5(1)(a)(i)-(iii), then there was no factual support for his ultimate order that the basic limitation period “did not begin to run until July of 2013.”
 However, the parties have argued the appeal as if the motion judge made actual findings of fact on those matters, and I will treat his reasons in a similar fashion.
 I would simply reiterate that granting summary judgment dismissing an action as statute-barred, or declaring when a claim was discovered, requires making specific findings of fact. Assumptions about the matters in ss. 5(1) and (2) of the Act are not analytical substitutes for findings of fact. If the record does not enable the summary judgment motion judge to make those findings with the certainty required by Hryniak, then a genuine issue requiring a trial may exist.
 In commencing his analysis under s. 5(1)(a)(iv) of the Act, the motion judge properly noted the general proposition that the determination of when an action is an appropriate means to seek to remedy an injury, loss or damage depends upon the specific factual or statutory setting of each individual case: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII), 133 O.R. (3d) 762, leave to appeal refused,  S.C.C.A. No. 509, at para. 34; Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 (CanLII), 138 O.R. (3d) 641, leave to appeal to SCC requested, at para. 23.
 However, as this court has observed, that general proposition is not an unbounded one.
 First, in Markel Insurance this court confined the meaning of “appropriate” to “legally appropriate”. Writing for the court, Sharpe J.A. stated, at para. 34:
This brings me to the question of when it would be “appropriate” to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Italics in original; underlining added.] Second, in 407 ETR, Laskin J.A. noted, at para. 47, that the use of the phrase “legally appropriate” in Markel Insurance, “signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless” (emphasis added).
 Finally, in Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325 (CanLII), 135 O.R. (3d) 321, Pardu J.A. observed that the jurisprudence discloses two circumstances in which the issue of appropriate means most often delays the date on which a claim was discovered. First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss: at para. 26. Second, a legal action might not be appropriate if an alternative dispute resolution process “offers an adequate alternative remedy and that process has not fully run its course”: at para. 29. See also paras. 28-48; and Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469 (CanLII), at paras. 21 and 34-35. In this regard, in Winmill this court held that resort to a civil proceeding for a remedy in respect of damage flowing from an incident might not be an appropriate means while criminal proceedings in respect of the incident remain outstanding: at para. 28.
 Although Presidential MSH does not purport to offer an exhaustive list of circumstances in which a proceeding might not be an appropriate means, I would observe that neither circumstance identified in Presidential MSH is present in this case. Some other factor would have to displace the s. 5(2) presumption that Nasr knew a proceeding was an appropriate means on February 1, 2013.