|
Limitations - Appeals - Standard of Review (SOR). Di Filippo v. Bank of Nova Scotia [various limitations]
In Di Filippo v. Bank of Nova Scotia (Ont CA, 2023) the Court of Appeal considered related limitation SORs within a single class action:A. Standard of Review
[21] A finding that a proposed amendment constitutes a new claim “is a legal determination, which is subject to the correctness standard of review on appeal”: Polla v. Croatian Credit (Toronto) Union Limited, 2020 ONCA 818, at para. 31, citing Blueberry River First Nation v. Laird, 2020 BCCA 76, 32 B.C.L.R. (6th) 287, at paras. 20-21; and Strathan Corporation v. Khan, 2019 ONCA 418 (Ont. C.A.), at paras. 7-8.
[22] The question whether a limitation period has commenced is “typically a question of mixed fact and law and therefore subject to review on a ‘palpable and overriding error’”: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 30. However, where there is an extricable error in principle, the standard of review is correctness: Fercan Developments Inc. v. Canada (Attorney General), 2021 ONCA 251, 157 O.R. (3d) 81, at para. 11; see e.g., Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 24.
[23] The facts relevant to the limitation period issues in this case are not in dispute. The only question is whether the motion judge erred in finding that the plaintiffs had actual knowledge of their claims as of March 27, 2018 within the meaning of s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Like in Kaynes, where the issue was similarly whether knowledge of U.S. pleadings was sufficient at law to trigger the commencement of the limitation period, the standard of review with respect to this finding is correctness.
|
