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Limitations Act - Discoverability - Appropriate Means (4). Pascuet v. Sky Service F.B.O. Inc.
In Pascuet v. Sky Service F.B.O. Inc. (Div Ct, 2026) the Divisional Court dismissed a plaintiff's appeal, that brought against "the defendant’s motion for summary judgment" which "dismissed the action on the basis that it was statute-barred, as the claim had been initiated more than two years after it was discovered".
Here the court considers doctrine on the 'appropriate means' [LA s.5(1)(a)(iv)] limitations element, including the role (if any) of time wasted in a good faith pursuit of the same cause of action in the wrong court system:[48] In Heller v. Uber Technologies Inc., 2023 ONSC 1942, at paras. 61 to 66, Justice Perrell aptly summarized the law in this area:[61] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the factor that a proceeding is an “appropriate” means to seek a remedy, under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the plaintiff knew (a subjective criterion) or ought to have known, i.e., had the means of knowing (a modified objective criterion) about the claim. The basic limitation period for discovering a claim is two years in Ontario.
[62] Under the discoverability principle, the limitation period commences to run when the plaintiff subjectively discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. In other words, when a reasonable person with the abilities and in the circumstances of the plaintiff should have acquired facts to become knowledgeable about his or her claim, the limitation period runs, or, put conversely, the limitation period does not stop running, if the plaintiff ought to have taken steps but took no steps to investigate whether he or she has a claim.
[63] The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case; it is a fact-based analysis. What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.
[64] The modified objective test applies only if a plaintiff does not have actual subjective knowledge of the claim. If the plaintiff has subjective knowledge of his or her claim, the limitation period is running subject to s. 5(1)(a)(iv) of the Limitations Act, 2002, which adds the element that a proceeding is an “appropriate” means to seek a remedy.
[65] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a plaintiff will know of the matters of his or her claim on the day that the act or omission took place. When a limitation period defence is raised, - the onus is on the plaintiff - to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.
[66] Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge. If the plaintiff does know “enough facts”, which means knowing the material facts, the claim is discovered, and the limitation period begins to run. [49] At the time of the summary judgment motion, the facts relevant to the limitation period dispute were known and essentially undisputed. Contrary to the appellant’s submission, no serious credibility issues regarding the limitation period issue arose on the record. As the appellant acknowledged at the appeal hearing, the matters said to raise material credibility concerns pertained to questions of law or to matters peripheral to the controlling issue, namely, when the applicable two-year limitation period began to run.
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Ground #5: Did the motion judge err in law by finding that, because the appellant commenced a proceeding in the Federal Court, the fourth element of the test for discoverability, namely s. 5(1)(a)(iv), was satisfied?
[71] The appellant argued before the motion judge that the limitation period did not begin to run until his Federal Court action was dismissed because he did not know that the appropriate remedy was to commence a wrongful dismissal action against the respondent in the Superior Court of Justice.
[72] The motion judge properly found that the appellant knew, or reasonably ought to have known, that a legal proceeding would be an appropriate means of remedying his loss. The motion judge properly concluded that the appellant’s decision to commence an action against the respondent in the Federal Court demonstrated that he knew, or ought to have known, that a proceeding was an appropriate means of seeking a remedy. See para. 41 of AJ Kamal’s decision.
[73] Discoverability does not require that a plaintiff know the exact nature or extent of their damage. See Sampson v. Empire (Binbrook Estates), 2016 ONSC 5730, at para. 37.
[74] In Beniuk v. Leamington (Municipality), 2020 ONCA 238, at para. 75, the Court of Appeal noted that the Act “does not permit a party to engage in litigation in stages for the same wrong” and, at para. 70, that it does not “import an idiosyncratic limitation period calibrated by the claimant’s familiarity with or ignorance of the law.”
[75] The facts in Beniuk are analogous. The plaintiffs claimed damages to their property resulting from increased road traffic and initially brought a claim for injurious affection before the Ontario Municipal Board (“OMB”), which declined jurisdiction. One week later, they commenced an action in the Superior Court alleging nuisance and negligence. The Court held that the limitation period is not postponed until a plaintiff identifies the right forum.
[76] The plaintiffs submitted that their claim was not discovered until the OMB declined jurisdiction over their injurious affection claim.
[77] The Court found that the plaintiffs’ claim had been discovered in January 2010, when they were first put on notice of the forum issue. The motion judge made no palpable and overriding error in finding that it was not legally appropriate for the plaintiffs to wait until after the OMB’s decision to commence civil proceedings. The fact that the plaintiffs chose an alternative process did not, in itself, suspend the running of the limitation period. There was no evidence explaining why the plaintiffs did not commence both an OMB proceeding and a civil action concurrently.
[78] As stated in Novak v. St. Demetrius (Ukrainian Catholic) Development Corporation, 2017 ONSC 3503, at para. 27, a limitation period is not extended simply because a plaintiff commences a claim in the wrong forum.
[79] At this stage, it is important to distinguish the two Court of Appeal decisions relied on by the appellant.
[80] In Presidential MSH Corporation v. Marr, Foster & Co. LLP et al., 2017 ONCA 325, the defendant accountant filed the plaintiff corporation’s tax returns late, resulting in the Canada Revenue Agency (“CRA”) denying certain tax credits and causing the plaintiff to incur approximately $550,000 in unpaid taxes, interest, and penalties. The defendant advised the plaintiff to hire a tax lawyer to appeal the CRA’s assessments and actively assisted in that process. The CRA confirmed its assessments in July 2011, and the plaintiff commenced a negligence action against the defendant in August 2012.
[81] In allowing the appeal, the Court of Appeal found that the motion judge erred in concluding that the claim was discovered in April 2010 when the plaintiff received the CRA’s notices of assessment. The Court held that a proceeding was not an appropriate means of remedying the loss until May 2011, when the CRA advised it intended to confirm the assessments.
[82] The defendant actively assisted the plaintiff in appealing the CRA’s assessments, including drafting the application for discretionary relief and supporting the tax lawyer’s efforts. Those efforts had the potential to resolve the plaintiff’s loss without litigation, making litigation premature during that period.
[83] Because the CRA appeal process had the potential to eliminate the plaintiff’s loss, it was not appropriate to commence a proceeding until that process had been exhausted in May 2011. The Court emphasized that the limitation period under s. 5(1)(a)(iv) of the Limitations Act does not begin until a proceeding becomes an appropriate means of seeking a remedy.
[84] The Court therefore concluded that the plaintiff’s claim was not statute-barred, as the limitation period began in May 2011 and the action was commenced within two years of that date.
[85] Presidential is distinguishable. That case involved professional negligence, and the defendants, as tax experts, were actively attempting to mitigate the plaintiff’s loss and resolve the issue with CRA through the appeal process. Here, there is no suggestion that the respondent provided any assurances or was involved in ameliorating the appellant’s loss.
[86] Presley et al. v. Van Dusen et al., 2019 ONCA 66, is also distinguishable.
[87] In that case, the plaintiffs, homeowners, retained the defendant to install a septic system in 2010. Although the system was approved by the local health unit, problems began to emerge in 2011 and escalated to smells and effluent by 2013. The defendant repeatedly assured the plaintiffs that he could fix the issues, but his efforts were unsuccessful. In 2015, the health unit condemned the system, requiring its replacement. The plaintiffs commenced legal action later that year. The Superior Court found the action to be statute-barred, and that decision was upheld by the Divisional Court.
[88] The Court of Appeal allowed the appeal, finding that the trial judge had failed to consider s. 5(1)(a)(iv) of the Act, which requires determining when the plaintiffs knew, or ought to have known, that legal proceedings were an appropriate means of seeking a remedy. This omission constituted an error of law.
[89] The Court held the plaintiffs reasonably relied on the defendant’s assurances and expertise and believed that the problem could be resolved without litigation. As a result, their realization that litigation was necessary was delayed until 2014, thereby rebutting the presumption under s. 5(2) of the Act.
[90] The Court further found that the plaintiffs could not have known that legal proceedings against the health unit were appropriate until they realized that the installer could not resolve the issue. The same limitation period applied to both defendants, and the claim against the health unit was also within the prescribed two-year period.
[91] The defendants in Presley repeatedly assured the plaintiffs that the defects could be repaired and that the loss could be remedied without litigation.
[92] That case is distinguishable. Here, the respondent made no such assurances and took no steps to ameliorate the situation. . Jakubov v. Sun Life Assurance Company of Canada
In Jakubov v. Sun Life Assurance Company of Canada (Ont CA, 2023) the Court of Appeal considered a limitations discovery 'appropriate means' [LA s.5(1)(a)(iv)] issue:[7] The motion judge also rejected the appellant’s submission that she did not discover her claim until the resolution of the College’s investigation. He found that there was no indication on the record that the respondent made its delisting contingent on the findings of the College. Further, the March 5, 2019 letter did not refer to the outstanding complaint to the regulatory body as dictating whether an action would be appropriate. The motion judge distinguished this case from Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, as, in this case, there is no basis to conclude that the regulatory proceeding would be determinative of any tort claim, or that it was an alternative mechanism to resolve the dispute.
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[9] We see no basis to interfere with the motion judge’s decision. Indeed, we agree with his legal analysis on the rolling limitation period and the impact of the College investigation on the limitation period. .... . Hrvoic v. Hrvoic
In Hrvoic v. Hrvoic (Ont CA, 2023) the Court of Appeal considered a Limitations Act, 2002 s.5(1)(a)(iv) 'appropriate means' issue:(iv) Did the trial judge misinterpret and misapply the test for the commencement of the applicable limitation period?
[22] Doug argues that the trial judge erred in finding that Melissa’s claim for 50% of the company’s common shares was not statute-barred because she knew in 2011 or August 2017 at the latest that she was only a 30% shareholder. He submits that the trial judge erred in rejecting as inapplicable the binding authority of Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613.
[23] We are not persuaded that the trial judge made any error. The trial judge properly referenced and applied the provisions of s. 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, and her decision is in keeping with the applicable governing principles articulated by the Supreme Court in Grant Thornton.
[24] The trial judge considered when Melissa discovered or ought to have discovered through the exercise of reasonable diligence the material facts on which her claim is based. She then went on, as she was required to do, to consider, under s. 5(1)(iv), when Melissa first knew that, “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”. That she implicitly found that Melissa had rebutted the presumption under s. 5(2) of the Act that she knew this “on the day the act or omission on which the claim is based took place” is clear from the trial judge’s reasons. Such a finding is in keeping with the approach taken by the Supreme Court in Grant Thornton, as the trial judge’s rejection of this presumption indicates that based on her findings, she found that Melissa could not have drawn “a plausible inference of liability” until she knew that Doug had not amended the corporate documentation to designate her a 50% shareholder: Grant Thornton, at para. 42. . 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:[21] 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.
[22] 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, [2016] 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. . Amelin Engineering Ltd. v. Blower Engineering Inc.
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:[7] 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: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). [8] 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.
[9] 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.
[10] 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.
[11] 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. . Fresco v. Canadian Imperial Bank of Commerce
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:[95] 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.”[74] 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.”[75] Accordingly, the first two branches of the test were met.
[96] 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).
[97] 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.”[76] 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”.[77] 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.”[78]
[98] 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.”[79] 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.[80] [99] 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.[81] 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.”[82]
[100] 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.[83] He pointed to a case involving a franchisor-franchisee relationship, and another involving portfolio managers and investors. The categories are not closed.[84]
[101] 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.
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