Limitations Act - Discoverability - Appropriate Means IV. Lewis v. Lifetime Developments
In Lewis v. Lifetime Developments (Ont CA, 2023) the Court of Appeal considered a Limitations Act s.5(1)(a)(iv) 'appropriate means' extension issue when the plaintiff claimed that discussions between the parties reasonably led them to believe that "a proceeding would be an appropriate means to seek to remedy it" at a later date:
 Finally, the appellant relies on this court’s decision in Thermal Exchange Services Inc. v. Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186, 467 D.L.R. (4th) 698, to assert that his good faith negotiations with Mr. Herzog suspended the operation of the limitation period. In Thermal Exchange this court upheld a motion judge’s finding that a claim for the payment of invoices in the context of a running account had not been discovered within the meaning of s. 5(1)(a)(iv) of the Limitations Act while the plaintiff was led to believe that the defendant would take care of the payment. However, there are important differences between that case and the appellant’s case.. Amelin Engineering Ltd. v. Blower Engineering Inc.
 Here the appellant’s claim crystallized on a precise date, and there was no acknowledgment of the debt. In fact, the letter from the appellant’s counsel makes it clear that legal proceedings were contemplated. The determination of whether an action is time-barred is a fact-specific exercise: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 34, leave to appeal refused,  S.C.C.A. No. 509; Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561. There was no error in the motion judge’s assessment of the facts in this case or in her conclusion that the operation of the limitation period was not suspended.
In Amelin Engineering Ltd. v. Blower Engineering Inc. (Ont CA, 2022) the Court of Appeal considered an 'appropriate means' limitations issue, here based on delay incurred by reliance on the expertise of the defendant:
 It is not contested that the transition provisions of the Limitations Act, 2002 apply to this claim, as the trial judge found. It follows that the former six year limitation period applies: Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(g). It is also agreed that the discoverability factors under the Limitations Act, 2002 apply: see e.g., St. Jean (Litigation Guardian of) v. Cheung, 2008 ONCA 815, 94 O.R. (3d) 359, at paras. 57-59. Section 5(1) of the Limitations Act, 2002 provides as follows:. Fresco v. Canadian Imperial Bank of Commerce
5 (1) A claim is discovered on the earlier of, The appellants submit that the trial judge erred in failing to consider s. 5(1)(a)(iv) of the Limitations Act, 2002. They argue that the respondent’s president, Thomas Byrnes, an engineer who invented the steam generators in question, had superior expertise on which they reasonably relied; that he represented that the steam generators could operate in accordance with the representations in two sales brochures; and that he proposed remedies to resolve problems the appellants had experienced with the generators. The appellants say that assurances and ameliorative efforts of the respondents delayed the discoverability of their claim until May 2003, when repair efforts concluded, or April 16, 2003, when the Bell Report was delivered. In either case, the appellants’ statement of claim, issued on April 3, 2009, was issued within the required six year period.
(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).
 Although the trial judge’s reasons do not specifically address s. 5(1)(a)(iv) of the Limitations Act, 2002, we are satisfied that the trial judge did not err in finding that the appellants’ claim was statute barred.
 As this court explained in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras. 16-19, it may be appropriate to delay the start of a limitation period if a plaintiff is relying on a defendant’s superior knowledge and expertise, especially where the defendant was taking steps to ameliorate a loss. That was the case, for example, in Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161 in which this court concluded that delay in suing a doctor who was taking steps to ameliorate problems arising out of a patient’s surgery was reasonable.
 The rationale for delaying the discovery of a claim is that ameliorative efforts may reduce or eliminate a plaintiff’s damages and render litigation unnecessary. However, discovery cannot be delayed indefinitely, subject only to the application of the ultimate limitation period. To do so would undermine the rationale for limitation periods. Thus, the test is not wholly subjective; s. 5(1)(b) of the Limitations Act, 2002 establishes a “modified objective” test that requires consideration of what a reasonable person with the abilities and in the circumstances of the claimant ought to have known: Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, at para. 74; Ferrara v. Lorenzetti Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, at para. 70; Crombie Property Holdings Ltd. v. McColl-Frontenac Inc. (Texaco Canada Ltd.), 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 35.
In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2022) the Court of Appeal considered the 'appropriate means' element of the discoverability test in a class action over overtime wages:
 The motion judge discussed the test set by s. 5: “[L]imitation periods begin to run as soon as the claimant reasonably discovers that she has sustained a loss, that the loss was caused by the defendant and that taking legal action was appropriate.” The motion judge noted that: “Every time a class member received their bi-weekly pay, they would have known if they had been paid for overtime, and if not, that this loss was caused by their defendant employer.” Accordingly, the first two branches of the test were met.
 The discoverability issue rested, for the motion judge, on the third branch: whether class members knew taking legal action was appropriate. This turns on the interpretation of ss. 5(1)(a)(iv) and 5(1)(b).
 The motion judge found that the “appropriate means” requirement applied so that the limitations period would “not begin to run if taking legal action was not reasonably appropriate given the plaintiff’s circumstances.” He gave two main reasons for concluding that the “appropriate means” test was not met. First, “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime”. Second, “some (and perhaps many) of the class members reasonably relied on the bank’s repeated misrepresentations throughout the 16-year class period that the bank’s overtime policies complied with federal labour law.”
 The motion judge found that these reasons combined to require individual assessments of when discoverability was met for an individual claimant, consistent with the general rule that “the viability of a limitations defence is best determined on an individual basis with individual assessments – hence its usual relegation to the individual hearings phase.” The motion judge concluded:
The defendant bank has not established on the evidence that the limitation period that applies to every class member’s claim (outside the limitation periods noted in its Schedule) can be determined in common on a class-wide basis and that individual discoverability is not needed. In my view, the evidence strongly suggests that individual discovery will be needed in at least some cases to fairly determine whether the class member delayed in taking legal action because they were in reasonable fear of losing their job; because they reasonably relied on the bank’s misrepresentations about the legality of its overtime policy; or because they were otherwise impeded by the bank’s systemic policies and practices. We are not persuaded that the first factor, that “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime” is a valid basis on which the limitations period can be suspended. However, there is merit in the second factor of reasonable reliance on misrepresentation. The applicable law is set out in this court’s decision in Presley v. Van Dusen. Sharpe J.A. discussed the governing principles, and then referred to one of the “guiding principles” expressed by Pardu J.A. in Presidential MSH Corp. v. Marr Foster & Co. LLP: “Resort to legal action may be ‘inappropriate’ in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship.”
 Sharpe J.A. added:
Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships. 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’s superior knowledge and expertise have concerned defendants belonging to traditional expert professions.... However, recent Superior Court decisions have applied the superior knowledge and expertise prong of Presidential MSH to persons who are members of non-traditional professions or who are not professionals at all.He pointed to a case involving a franchisor-franchisee relationship, and another involving portfolio managers and investors. The categories are not closed.
 On the facts of this case, it is quite plausible, as the motion judge found, that some class members reasonably relied on the Bank’s misrepresentations that its overtime policies complied with federal labour law. The influence of this factor on individual class members is really a matter best left to individual assessment, as this court noted in the earlier certification decision.