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Limitations - Rolling. 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 'rolling' limitation issue:[6] Sun Life moved for summary judgment, seeking to dismiss the claim as statute-barred by the Limitations Act, S.O. 2002, c. 24. The motion judge ruled that the claim was statute-barred. He dismissed the appellant’s submission that a rolling limitation period applied because Sun Life had not engaged in new acts that would give rise to new claims to ground such a limitation period. The fact that the appellant may have continued to suffer damages from the original delisting decision did not mean that she could delay bringing an action for an indeterminate period.
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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. .... . Donovan v. Human Rights Tribunal of Ontario
In Donovan v. Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court considered a JR against an HRTO decision that the bringing of a 'Contravention of Settlement' ("COS") had been brought past the applicable limitation period:Statutory Framework
[28] Section 45.9(3) of the Code states that COS applications must be brought within six months of the contravention or, if there was a series of contraventions, within six months after the last contravention in the series. Subsection (4) states that a person may apply under subsection (3) after the expiry of the time limit under that subsection “if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”
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Issue One: Was it unreasonable for the HRTO to find that the First Breach of the Resignation Agreement alleged by the Applicant was untimely?
[42] The timeliness issue was raised by the HRTO. While the Police Respondents did not challenge the timeliness of the Applicant’s contravention of settlement allegations at the preliminary hearing, the HRTO is the master of its own process and is entitled to take any action that it determines appropriate, including on its own initiative.[13]
[43] The Code requires that COS applications be filed: (a) within six (6) months after the contravention to which the application relates; or (b) if there was a series of contraventions, within six (6) months after the last contravention in the series.[14]
[44] In the Reconsideration Decision, the Applicant took no issue with the finding in the Preliminary Hearing Decision that she did not meet the criteria in s.45.9(4) of the Code for establishing that the delay was incurred in good faith and no substantial prejudice will result. Accordingly, the only issue with respect to the timeliness of the Applicant’s allegations on this judicial review is whether they are a “series of contraventions” within the meaning of s. 45.9(3)(b) of the Code.
[45] The Applicant argued that it was unreasonable for the Member to apply caselaw about what constituted a “series” under s.34.1(b) of the Code to s.45.9(3)(b) of the Code. The sections are reproduced below:Application by person
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
Late applications
34 (2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
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Application where contravention
45.9 (3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series.
Late applications
45.9 (4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. [46] Section 34(1) addresses infringements under the Code while s. 45.9(3) addresses contraventions of human rights settlements. Apart from different time limitation periods, in both provisions, late applications may be accepted under identical circumstances: “a series” of incidents or contraventions.
[47] As noted in the Reconsideration Decision, giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation. In the Decisions, the term “series” in s.45.9(3)(b) was given the same meaning as the HRTO has given the word in a large body of HRTO decisions when interpreting s.34(1) (b). The same principles that are applied to whether allegations relate to a “series of incidents” under s.34(1)(b) were applied to whether the Applicant’s two alleged contraventions of settlement are a “series of contraventions” under s.45.9(3)(b).
[48] The Applicant relied on City of Toronto v. Grange[15] for the proposition that once a final incident is found to be timely, all other incidents are presumed to be timely. In Grange the HRT adjudicator found that in the case of allegations of systemic racial discrimination there was no compelling reason to inquire into the timeliness of the various historic allegations prior to hearing evidence on the merits of the claim. The adjudicator declined to dismiss claims as untimely on a preliminary application. This decision was not a final decision and this court declined to review it. It does not assist the Applicant.
[49] The Applicant further relied on Twyne v. Dominion Colour Corporation,[16] which held that a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.
[50] In this case, the Vice Chair did not find a common theme or similar circumstances to the Applicant’s two contraventions of settlement allegations. Instead, the Vice Chair found that the two allegations were based on discrete and separate facts that engaged different terms of the Resignation Agreement. The HRTO has jurisdiction to determine all questions of fact or law that arise in an application before it.[17] There is nothing unreasonable about this finding.
[51] The case of McFarlane v. The Regional Municipality of Peel Police Services Board[18] was decided by the HRTO after the Decisions under review here. In McFarlane, the HRTO referred to three prior decisions (in addition to referring to the Decisions under review here) which support that s.45.9(3) should be interpreted similarly to s.34 (1) and (2). Paragraph 51 states:“The Tribunal has a large body of jurisprudence which sets out the general principles on how the Tribunal interprets the limitation period under ss. 34(1) and (2) of the Code for Applications alleging discrimination under the Code. That jurisprudence has been imported into the interpretation of the limitation period under ss. 45.9(3) and (4) of the Code for Applications alleging a contravention of a settlement of an Application. See for example, The Regional Municipality of Waterloo Police Services Board v. Donovan, 2022 HRTO 1409; Regional Municipality of Waterloo Police Services Board v. Donovan, 2023 HRTO 276; Moore v. Canadian Memorial Chiropractic College, 2018 HRTO 1495; Young-Chin v. P.J. O’Brien Irish Pub and Restaurant, 2013 HRTO 1421; and, Freitag v. Penetanguishene (Town), 2012 HRTO 1644. [52] There was nothing unreasonable in the Vice Chair giving the same words the same meaning throughout the statute and importing the caselaw under s.34.1(b) of the Code to s.45.9(3)(b) of the Code.
[53] For a “series of contraventions” to be established within the meaning of section 45.9(3) of the Code, the HRTO considers the following factors:1) What is the last alleged incident of discrimination to which the Application relates?
2) Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
3) What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents or contraventions of a similar nature or character?
4) What is the temporal gap between alleged incidents of discrimination?[19] In respect of factor 3, the HRTO will consider the nature of events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents or contraventions relating to discrete and separate issues without some connection or nexus. The HRTO will also consider whether incidents share a common theme and whether they involve similar parties or circumstances. To establish a series of incidents or contraventions, it is not enough for an applicant merely to rely on separate incidents that are alleged to be discrimination on the same ground or are separate breaches of an agreement.[20]
[54] There is no error in the determination that the Applicant’s allegations of contravention of settlement on December 21, 2017, and January 11, 2018, did not constitute a series of contraventions. The determination is in accordance with the HRTO’s long established jurisprudence. The Applicant’s two contravention of settlement allegations against the Police Respondents are based on discrete and separate facts that engaged different terms of the Resignation Agreement. The Applicant’s first allegation of contravention (i.e. former Chief Larkin’s affidavit in the proposed class action) is grounded upon an alleged breach of the confidentiality provisions of the Resignation Agreement as the Applicant herself characterized it in her Request for an Order During Proceedings dated May 24, 2022. The Applicant’s second allegation of contravention (i.e. the WRPSB’s alleged appeal of her WSIB claim) is grounded upon a different factual matrix and is rooted in an alleged violation of the release provisions of the Resignation Agreement. The Applicant herself acknowledges that her claim for relief is for “two distinct and separate contraventions of the [Resignation] Agreement”.[21]
[55] The Applicant’s assertion that the alleged contraventions of settlement on December 21, 2017, and January 17, 2018, form a “series” is based upon nothing more than the fact that they both involve alleged breaches of the Resignation Agreement. This is insufficient to show that the Decisions were unreasonable.[22]
[56] The Applicant’s COS Application was commenced on July 27, 2018. This is over seven (7) months following the Police Respondent’s alleged breach of the Resignation Agreement on December 21, 2017, and, as such, is contrary to section 45.9(3)(a) of the Code.
[57] The Decisions are internally coherent, rational, and justified in relation to the facts and the law that constrained the Vice Chair and meet the standard of reasonableness. . Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd.
In Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd. (Ont CA, 2022) the Court of Appeal considered the useful issue of 'rolling limitation periods':A. Did the motion judge err by failing to apply a rolling limitation period?
[20] The appellants argue that the motion judge erred by failing to apply a rolling limitation period that would enable them to sue for: (1) the deficient payments made in the two years prior to the launch of their action on December 10, 2019, and (2) the assessed value of Equestrian’s interest in CCL IP. I do not agree. In my view, the motion judge was correct in concluding that a single breach with continuing consequences occurred on March 27, 2017, when the respondents unequivocally rejected the appellants’ claim to a permanent 3% interest in CCL IP, thereby making a rolling limitation period inapplicable.
[21] The term “rolling limitation period” is used where a new limitation period arises with each breach of an ongoing or recurring contractual obligation. It is important to recognize, however, that not all breaches that lead to the failure to make ongoing or recurring payments provided for in a contract will give rise to rolling limitation periods. As Hourigan J.A. observed in Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635, 147 O.R. (3d) 186, at para. 35, “The jurisprudence suggests that a rolling limitation period may apply in a breach-of-contract case in circumstances where the defendant has a recurring contractual obligation” (emphasis added). This caveat applies, of course, to contracts that contemplate a recurring contractual obligation to make periodic payments. As the majority put it in Pedersen v. Soyka, 2014 ABCA 179, 373 D.L.R. (4th) 372, at para. 17: “Every time that there is a contract which calls for periodic payments, does the limitation period always start running afresh when each payment falls due? The answer is, ‘No, not always.’”
[22] The appellants argue that whether a rolling limitation period applies to a contract that provides for ongoing obligations depends on which of the “three categories” described in Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, 395 D.L.R. (4th) 679, at paras. 23-25 that the case falls into, namely: (1) a single “once-and-for-all” breach of contract with continuing consequences; (2) a failure to perform an obligation scheduled to be performed periodically; or (3) a breach of a continuing obligation under a contract. The appellants argue that unless a case falls into category 1, a rolling limitation period applies. As I understood their argument, the appellants submit that the motion judge erred by failing to find this to be a category 2 case, and by finding that no rolling limitation period applied without finding that this is a category 1 case. I will make several observations in order of ascending importance.
[23] First, I do not read Pickering Square as holding that rolling limitation periods apply in all cases that can be placed into category 2. After describing this category, Huscroft J.A. said, at para. 24: “A failure to perform any such obligation ordinarily gives rise to a breach and a claim from the date of each individual breach” (emphasis added).
[24] Second, although the motion judge did not say so expressly, it seems plain from reading his decision as a whole that he did see this as a category 1 case. After describing the three Pickering Square categories, he concluded that “the material facts upon which the [appellants’] claims are founded do not arise on a continuous or periodic basis”, or in other words, that this is not a category 2 or category 3 case. The implication, of course, is that in the motion judge’s view this is a category 1 case.
[25] Third, although I recognize that the three Pickering Square categories provide an illustrative heuristic that assists in understanding the application of rolling limitation periods, I do not understand Huscroft J.A. to have been proposing that the three categories he identified operate as the test for identifying when a rolling limitation period will apply. In Marvelous Mario’s, at para. 34, Hourigan J.A. therefore returned to “first principles” to determine when a court should recognize a rolling limitation period.
[26] Those first principles begin with the guidance that Huscroft J.A. provided in Pickering Square, immediately before he introduced the three categories: “In order to determine the discovery date for the claim, the nature of the breach must first be determined”: at para. 22. The need to characterize the nature of the breach is the obvious place to begin since it is not possible to determine whether a plaintiff has discovered a breach until the relevant breach is identified.
[27] What is it about the nature of the breach that would attract a rolling limitation period? Hourigan J.A. gave assistance in Marvelous Mario’s, at para. 35: “The question is not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in another breach of contract beyond the original breach by failing to comply with an ongoing obligation” (emphasis added). The material distinction is therefore between those cases where, in substance, the cause of action alleges a breach that gives rise to continuing loss or damage, and those cases where, in substance, more than one breach is being alleged leading to separate damage claims. This distinction matters because entitlement to rolling limitation periods is premised on the notion that with each new breach a “fresh cause of action” arises that “sets the clock running for a new two-year limitation period”: Pickering Square, at paras. 37-38. Put simply, without a “new breach”, there is no justifiable basis for applying a rolling limitation period.
[28] Other first principles also inform this analysis. Since the Limitations Act, 2002, focuses on discoverability, discoverability considerations assist in determining whether rolling limitation periods apply. In Marvelous Mario’s, at para. 36, Hourigan J.A. cited with approval a passage from Richards v. Sun Life Assurance Company of Canada, 2016 ONSC 5492, [2016] I.L. 1-5911, at para. 26, where Bale J. helpfully explained that where a loss has occurred and the material facts of the breach ought to be known to the plaintiff, it would be unfair to require a defendant to litigate those facts for a potentially unlimited time, but where the material facts are arising on a periodic basis, “it will not be unfair to require a defendant to litigate those facts during the applicable limitation period following the date upon which an individual payment became due.”
[29] In this context, it is important to remember that “a cause of action accrues once damage has been incurred, even if the nature or the extent of the damages is not known”: Pickering Square, at para. 33. That being borne in mind, once the plaintiff has sustained a loss from a breach of contract, and the plaintiff knew or had the means of knowing that there would be ongoing damage arising from that breach, there is no basis for applying rolling limitation periods relating to that ongoing damage. This is in keeping with the aim of limitation periods to “balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs”: York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 2.
[30] As I read his decision, these are the first principles that Hourigan J.A. applied in Marvelous Mario’s. He also derived assistance, at para. 36, from further comments made by Bale J. in Richards, at para. 26:A rolling limitation period may apply to claims for periodic payments, in cases where the issue is whether certain payments to which the plaintiff is entitled have been made (e.g. payments of rent), as opposed to cases where the issue is whether the plaintiff was entitled to the periodic payments in the first place [the “Richards distinction”]. [31] I am not persuaded by the appellants’ able submissions that we should reject the Richards distinction. Not only has the Richards distinction already been approved of by this court, but in my view, it provides a useful measure of whether, in substance, a cause of action alleges a breach that gives rise to continuing loss or damage, or more than one alleged breach, each of which leads to separate damage claims. I appreciate that there are decisions not binding on this court that are not easily explained based on the Richards distinction, but in my view the distinction provides a helpful analytical tool.
[32] Nor do I accept the appellants’ suggestion that the law I have just described is inconsistent with common law principles relating to anticipatory breach of contract. An anticipatory breach occurs when a party repudiates a contractual obligation before it falls due: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201, 32 R.P.R. (6th) 1, at para. 258. Where this occurs, the innocent party need not sue immediately, but can wait before suing until the promised performance fails to materialize: Elgin Mills, at paras. 259-260. In contrast, the principles I have described apply after a breach has occurred, where a party has already sustained a loss from that breach, and that party has or ought to have the material knowledge required to commence an action that will encompass the loss or damage that will arise from that breach. In my view, the law of anticipatory breach was never intended to arm plaintiffs with the option of purportedly rejecting a breach of contract that has already occurred in the expectation that this will extend limitation periods to allow for delayed lawsuits relating to identifiable damages that arise from the breach but have yet to materialize.
[33] Finally, the appellants argue that the principles I have described cannot be correct because the Limitations Act, 2002, speaks of actions to remedy losses that have “occurred”, whereas the approach I describe enables claims for future losses that have not yet occurred to be statute barred. I reject this argument. A limitation period will begin to run when a cause of action arises, even if all of the damages arising from that cause of action have yet to materialize: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657, at paras. 64-65. Accordingly, in Bonilla v. Preszler, 2016 ONCA 759, 134 O.R. (3d) 478, a case involving a claim relating to damages for a denial of income replacement insurance benefits, this court rejected the submission that limitation periods cannot apply to future benefits: at paras. 8-12. Indeed, the appellants’ position is undermined by their own attempt to recover in this action the assessed value of Equestrian’s interest in CCL IP based on the future quarterly payments the appellants claim that it should yield. Essentially, their position is that although they can sue now for future loss, that aspect of their action is not yet subject to a limitation period.
[34] In my view, the motion judge made no error in finding that rolling limitation periods do not apply in this case. He properly approached the issue as a question of substance. He found, as he was entitled to and with good reason, that at its core, the claim that was being made was that the respondents breached the Partnership Agreement by failing to recognize Equestrian’s entitlement to a permanent 3% interest in the CCL IP, a single decision that would cause ongoing loss to the appellants. He likened the case not to the circumstances of Pickering Square, where a new breach arose with each day that the occupancy covenant was dishonoured, but to Marvelous Mario’s, where the ongoing damage arose from the denial of business loss coverage, and to Beccarea v. Canadian National Railway Company, 2018 ONSC 630, 140 O.R. (3d) 389, where ongoing damage relating to the claimed right to periodic payments arose from the defendant’s denial of the plaintiff’s entitlement to survivor’s benefits. Put in the terms expressed in Richards, the issue arising from the alleged breach in this case was whether Equestrian was entitled to a permanent 3% interest in the CCL IP, making this a category 1 case under the Pickering Square rubric. Moreover, by March 27, 2017, the appellants had all of the material facts required to initiate an action relating to the ongoing damage that would arise from the respondents’ denial that they owed Equestrian the obligation that the appellants were claiming. As I say, I can find no basis for interfering.
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