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Restitution - Limitations. Metro Ontario Real Estate Limited v. Hillmond Investments Ltd. (Central Parkway Mall)
In Metro Ontario Real Estate Limited v. Hillmond Investments Ltd. (Central Parkway Mall) (Ont CA, 2026) the Ontario Court of Appeal dismissed a landlord-defendant's appeal, here brought against a finding of liability respecting various damages and overpayments.
Here the court considers the limitations 'start' date for restitutionary claims:[52] For the limitation period to commence, there must be an act or omission of the person against whom the claim is made (the “defendant”): Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, 431 D.L.R. (4th) 262, at para. 86. As this court held in McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 52, a claim of unjust enrichment requires that the defendant retain a benefit without a juristic reason in circumstances where the claimant suffers a corresponding deprivation. Thus, the relevant act of the defendant is simply the act of keeping the enrichment.
[53] As the trial judge found, the Tenant first noted the error in 2009, immediately before it started this action, and the Landlord kept the overpayments, without juristic reason. The limitation period began to run when the Landlord retained each overpayment. The trial judge made no error in finding that the Tenant was entitled to damages for unjust enrichment for the two-year period prior to the date the action was commenced.
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