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Limitations Act - Discoverability - Appropriate Means - II [s.5(1)(a)(iv)]

. Beniuk v. Leamington (Municipality)

In Beniuk v. Leamington (Municipality) (Ont CA, 2020) the Court of Appeal considered whether s.5(1)(a)(iv) of the Limitations Act applied to extend a limitation period:
[54] I agree with the motion judge that it was not “legally appropriate” under s. 5(1)(a)(iv) for the appellants to wait until after the OMB’s decision to commence civil proceedings. I am not persuaded that the motion judge erred in principle in his interpretation and application of s. 5(1)(a)(iv), or that his conclusion, based as it was on the evidence before him, reveals any palpable and overriding error.

[55] The two-year limitation period and the principle of discoverability are codified in ss. 4 and 5 of the Limitations Act:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

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).

[56] The basic two-year limitation period begins to run on the day the claim was discovered. The date of discovery is the earlier of the two dates under s. 5(1) - when (a) the person with the claim had knowledge of, or (b) a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have had knowledge of, the matters referred to in ss. 5(1)(a)(i) to (iv). If either of these dates is more than two years before the claim was issued, the claim is statute-barred: Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 20.

[57] The appellants’ submission that the limitation period was tolled while they pursued the OMB proceedings hinges on s. 5(1)(a)(iv). They say that they did not know, and a reasonable person in their circumstances would not have known, that it was “legally appropriate” to start a civil claim in the Superior Court until after they received the OMB’s ruling with respect to jurisdiction. The appellants rely on the “alternative process” argument from 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, leave to appeal refused: 2017 CarswellOnt 6258 (S.C.C.), where this court concluded that a proceeding may not be appropriate under s. 5(1)(a)(iv) where the party with the claim is pursuing another resolution process that would eliminate the loss and thereby avoid needless litigation. The appellants submit that, if they had been successful in their claim for injurious affection, the OMB proceeding would have obviated the need to bring a civil proceeding. The civil action was not “legally appropriate” before the OMB proceeding concluded.

The 407 ETR Case

[58] I begin by noting that 407 ETR is not authority, as the appellants contend, that a civil action is never an appropriate proceeding until after an alternative process has run its course. In that case, 407 ETR followed a statutory process that provided a mechanism to refuse defaulting customers the ability to renew their license plates until all tolls, fees, and interest had been paid in full. 407 ETR commenced a civil action against a customer for unpaid tolls, after the statutory process did not recover the debt that 407 ETR was owed. When the customer raised a limitations defence, 407 ETR invoked s. 5(1)(a)(iv) of the Limitations Act, arguing that it did not know, and could not reasonably have known, that a civil action was appropriate until after the internal administrative process had run its course. This court agreed. Laskin J.A. explained, at paras. 39-40:
A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid - in other words, when the usually effective licence plate denial process has run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt…

[U]nder s. 5(1)(a)(iv) of the [Limitations Act] the date a proceeding would be an appropriate means to recover a loss must have “regard to the nature of the . . . loss”. So, in fixing the appropriate date, it may not be enough that the loss exists and the claim is actionable. If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used. Here, a claim will not be appropriate until 407 ETR has used that other method, without success.
[59] Laskin J.A. then referred to the evidence that the administrative process provided in the statute was typically very effective. He also pointed to s. 5(1)(b), which requires the court to take into account the “circumstances of the person with the claim”. He concluded, at para. 45, that 407 ETR’s circumstances, requiring the processing of an enormous number of transactions without the ability to bar defaulting debtors from using the highway, suggested that requiring it to sue before finding out whether license plate denial had achieved its purpose would be inappropriate: 407 ETR, at para. 45. A third consideration was the need to deter needless litigation: 407 ETR, at para. 48.

[60] 407 ETR does not stand for a general principle that a limitation period will not begin to run whenever an alternative process that might resolve the matter has not yet run its course. It is a matter of evidence. Indeed, Laskin J.A. noted, at para. 34, that when an action is “appropriate” will depend on the specific factual or statutory setting of each individual case, and that case law applying s. 5(1)(a)(iv) is of limited assistance because each case will turn on its own facts. In 407 ETR, the court considered the evidence on the motion about the statutory scheme and the effectiveness of the administrative process before deciding that it would be reasonable for such a process to run its course before a civil proceeding was appropriate.

[61] Recently, several cases considering the application of s. 5(1)(a)(iv) have come before this court. The court has emphasized, echoing the words of Laskin J.A. in 407 ETR, that when a proceeding is appropriate will turn on the facts of each case: see, for example, Nelson v. Lavoie, 2019 ONCA 431, 47 C.C.P.B. (2d) 1, at para. 25, and Ridel v. Goldberg, 2019 ONCA 636, 436 D.L.R. (4th) 453, at para. 71.

[62] This case did not involve an alternative process available under a statutory scheme. It did, however, involve an alternative process that the appellants were pursuing, as in 407 ETR, against the same party.

[63] The fact that a plaintiff chooses to pursue an alternative process does not in itself suspend the running of the limitation period under s. 5(1)(a)(iv). Whether an alternative process will have this effect will depend on the particular factual circumstances and the evidence before the court in determining the limitations issue. In this case, there was no evidence to explain why the appellants chose to pursue the OMB route rather than commencing both an OMB proceeding and a civil action.

[64] In Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, 76 M.P.L.R. (5th) 1, the appellant made a claim against the respondent municipality after its property was damaged by flooding following two significant rainfalls in May 2013. The floodwaters came from adjacent lands that the municipality had expropriated in 2009 for a construction project. There were pending proceedings before the OMB, commenced by the appellant in 2013, claiming damages for injurious affection in respect of the expropriation. Following the flooding, the appellant’s lawyer wrote a claim letter stating that the respondent’s construction activities caused flooding and damage to the appellant’s property, and indicating that the source of the flooding had to be determined immediately. In its response of June 28, 2013, the respondent advised that the flooding was caused not by its construction activities, but by a blocked catch basin on the appellant’s property that needed to be flushed.

[65] The appellant commenced a civil action two years after the receipt of the June 28, 2013 letter. The respondent was successful in its motion for summary dismissal on the basis that the claim was discoverable when the flooding occurred in May 2013, and the limitation period had expired.

[66] On appeal to this court, the appellant argued that the action was not discoverable until receipt of the June 28, 2013 letter because it did not know the cause of the flooding or the respondent’s position with respect to the cause of the flooding until that date. If the respondent had conceded that the flooding was caused by the construction, the claim could have been included as part of the appellant’s existing claim for injurious affection; if, on the other hand, the respondent offered another theory on the cause of the flooding, a civil action for nuisance or negligence would be necessary.

[67] This court agreed with the appellant. Feldman J.A. noted that the first time there was a suggestion that the flooding might have been caused by something other than the construction activities (which would have fallen within the existing injurious affection claim) was in the June 28, 2013 letter. It was only on that date that the appellant knew or ought to have known, under s. 5(1)(a)(iv), that a court proceeding, and not a proceeding before the OMB, would be an appropriate means to seek to remedy its loss.

[68] In Har Jo, the appellant had also argued in the alternative that the limitation period for the flooding claim did not begin to run until after the OMB had determined its jurisdiction. The court in Har Jo did not have to determine this issue, but Feldman J.A. stated in obiter at para. 44:Case law suggests that in circumstances similar to those in this case, plaintiffs have often commenced two proceedings, one before the OMB and one in the Superior Court. Defendants may then seek a stay of the court proceeding pending a determination of jurisdiction by the OMB, or even dismissal of the court claim if it is clearly a claim for injurious affection: see e.g. Montana Equipment Ltd. v. Robert B. Somerville Co., 2017 ONSC 3092 (Ont. S.C.J.); Great Land (Westwood) Inc. v. York (Regional Municipality), 2016 ONSC 5975, 3 L.C.R. (2d) 1 (Ont. S.C.J.); and Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041, 102 L.C.R. 238 (Ont. S.C.J.), aff’d 2012 ONCA 81, 105 L.C.R. 26 (Ont. C.A.).
. Presidential MSH Corporation v. Marr Foster & Co. LLP [***]

In Presidential MSH Corporation v. Marr Foster & Co. LLP (Ont CA, 2017) the Court of Appeal issued a useful ruling on when the limitation period begins to toll in light of remedial efforts by parties following the initial liability occurence. Here the issue was whether a negligence claim against an accountancy firm for late filing of a client's taxes began to run from the date of the Notice of Assessment or the later date at which that assessment was confirmed by CRA's response to the client's Notice of Objection (the first appeal stage). The motion judge applied the earlier date and granted the defendant's motion for summary judgment.

The case focussed on the portion of the discovery provisions [s.5(1)(a)(iv)] of the Limitations Act that focusses on when "a proceeding would be an appropriate means to seek to remedy it". The court held that 'appropriate' in this provision could be read to extend time until collateral legal processes were concluded:
[17] The motion judge did not have the benefit of this court’s decision in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII), 403 D.L.R. (4th) 485. In that case, Laskin J.A. discussed the purpose of s. 5(1)(a)(iv) of the Act. He noted, at para. 48:
[I]t seems to me one reason why the legislature added “appropriate means” as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation. As my colleague Juriansz J.A. noted in his dissenting reasons in Hare v. Hare, courts take a dim view of unnecessary litigation. [Citation omitted.]
Laskin J.A. also noted, at para. 33, that the appropriateness criterion in s. 5(1)(a)(iv) was not an element of the former limitations statute or the common law discoverability rule, and that this added element “can have the effect … of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.”

[18] Laskin J.A. stated, at para. 34, that whether an action is appropriate depends on the specific factual or statutory setting of each individual case. Because of this, case law applying s. 5(1)(a)(iv) is of limited assistance. And in Brown, Feldman J.A. noted that “there any many factual issues that will influence the outcome”: at para. 21. Further, when s. 5(1)(b) of the Act is applied, the determination whether legal action would be appropriate takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known. Section 5(1)(b) is described as a modified objective test in Ferrera v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 (CanLII), 113 O.R. (3d) 401, at para. 70.

[19] While I agree that whether a plaintiff ought to have known whether a proceeding would have been an appropriate means to seek to remedy damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular plaintiff, prior case law can assist in identifying certain general principles. I turn now to certain of those principles.

(2) The effect of assistance by the defendant to eliminate the loss

[20] First, the cases suggest that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

[21] Brown is a leading example of the suspension of a limitation period under s. 5(1)(a)(iv) in these circumstances. In Brown, the plaintiff suffered severe complications from a breast reduction surgery performed by the defendant, Dr. Baum, in March 2009. Dr. Baum performed a series of surgeries between May 2009 and June 2010 in an attempt to improve the outcome of the initial surgery. The patient brought an action against Dr. Baum, alleging lack of informed consent, in June 2012, three years after the initial breast reduction surgery but within two years of his last ameliorative surgery. Dr. Baum brought a motion for summary judgment to dismiss the action as statute-barred.

[22] The motion judge held that the limitation period did not commence until June 2010, when the last ameliorative surgery was performed. The patient’s proceeding was not appropriate while Dr. Baum continued to treat her.

[23] This decision was upheld on appeal to this court. Feldman J.A. held, at para. 18, that it would not have been appropriate for the patient to sue Dr. Baum while he was trying to fix the complications that arose in the original surgery because “he might have been successful in correcting the complications and improving the outcome of the original surgery.” Feldman J.A. further stated that “it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue”: para. 24.

[24] Brown was soon followed in Chelli-Greco v. Rizk, 2016 ONCA 489. A patient sued her dentist for professional negligence within two years of her last appointment with the dentist. The dentist moved for summary judgment. He argued that the patient’s claim was time-barred because it was discovered more than two years before it was commenced, when the patient first complained of dental work performed by the dentist and demanded reimbursement.

[25] The motion judge denied summary judgment, finding that the patient’s decision to continue treatment with the dentist beyond the date of her complaint was based on the dentist’s endeavours to repair his deficient dental work. On appeal, this court stated at para. 4: “Given this finding, we see no error in the motion judge's conclusion that the respondent’s action was not discovered until after the treatment and the dentist-patient relationship had ended and that her action was not statute-barred as a result.”

[26] 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. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused. The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.

[27] Finally, I note that cases in which a defendant who is an expert professional attempts to remedy a loss that a plaintiff has discovered and alleges was caused by the defendant (engaging the potential application of s. 5(1)(a)(iv)) are distinct from cases in which courts have held that a client has not discovered a potential claim for solicitor’s negligence until being advised by another legal professional about the claim: see Ferrara, at para. 70; and Lauesen v. Silverman, 2016 ONCA 327, 130 O.R. (3d) 665, at paras. 25-31. In the latter category of cases, the issue is whether the plaintiff knew or ought reasonably to have known injury, loss or damage had occurred (under s. 5(1)(a)(i)) that was caused by or contributed to by an act or omission of the defendant (under ss. 5(1)(a)(ii) and (iii)). Section 5(1)(a)(iv) comes into focus where the plaintiff knew or ought reasonably to have known of his or her loss and the defendant’s causal act or omission, but the plaintiff contends the limitation period was suspended because a proceeding would be premature. Although discoverability under more than one subsection of s. 5(1)(a) may be engaged in a single case, it is important not to collapse the analysis of discoverability of loss or damage and the defendant’s negligence or other wrong with the determination whether legal action is appropriate although other proceedings to deal with the loss may be relevant to both questions.

[28] A second line of cases interpreting and applying s. 5(1)(a)(iv) of the Act involves a plaintiff’s pursuit of other processes having the potential to resolve the dispute between the parties and eliminate the plaintiff’s loss.

[29] This approach to discoverability is consistent with the rule in administrative law that it is premature for a party to bring a court proceeding to seek a remedy if a statutory dispute resolution process offers an adequate alternative remedy and that process has not fully run its course or been exhausted: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 (CanLII), 111 O.R. (3d) 561, at paras. 61-70.
The court also usefully canvassed situations where behaviour of the defendant directed at eliminating or reducing the loss could also extend discovery:
[30] In 407 ETR Concession Company, for example, the plaintiff operated a public toll highway. It was authorized under the Highway 407 Act, 1998, S.O. 1998, c. 28, to collect tolls from those who used the highway. There were two methods to collect unpaid tolls: the first by civil action and the second by a statutory license plate denial process. In the latter process, the Registrar of Motor Vehicles would not validate or issue a driver’s permit to any person with an outstanding debt owed to the plaintiff.

[31] The plaintiff sued the defendant in 2013 for unpaid tolls incurred through use of the highway between 2008 and 2010. The defendant had been put into the statutory license denial process, and his driver’s permit expired in 2011, after which it was not renewed by the Registrar. He argued that the plaintiff’s claim was time-barred because it was discovered in 2013, outside the limitation period.

[32] This court held that a civil action was not an appropriate means for the plaintiff to recover the unpaid tolls until 2011, “when the usually effective license plate denial process had run its course”: para. 39. Given the statutory process, it would have been inappropriate to require the plaintiff to prematurely resort to court proceedings while the statutory alternative process was ongoing, which might make the proceedings unnecessary. In fixing the date when a proceeding is legally appropriate under s. 5(1)(a)(iv) of the Act, “[i]f the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used”: para. 39.

[33] Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165, 114 O.R. (3d) 481, is a case that dealt with tax advice and dispute resolution through the courts.

[34] In Lipson, the plaintiff and 900 taxpayers donated cash and timeshare weeks to registered athletic associations through a Timeshare Tax Reduction Program. The promotional material for the program included an opinion prepared by the defendant law firm. The defendant stated that it was unlikely that Canada Customs and Revenue Agency (“CCRA”) could successfully deny tax credits. However, in 2004, the CCRA notified the plaintiff that it intended to disallow his claim for tax credits. Two of the other donors launched proceedings as a test case to challenge the CCRA’s disallowance. The test case settled in 2008 on the basis that the donors would receive tax credits for their actual cash donations but not for their donations of timeshare weeks.

[35] In 2009, the plaintiff commenced a proposed class action for solicitor’s negligence and negligent misrepresentation based on the defendant’s opinion that it was unlikely that the CCRA could successfully deny the tax credits the plaintiff anticipated receiving. The defendant opposed certification on the grounds that the class members’ claims were statute-barred. It argued that the claims were discoverable in 2006, when the CCRA disallowed the tax credits. The motion judge agreed and the plaintiff appealed.

[36] This court allowed the appeal. It held that it was not clear that the plaintiff’s claim was discovered in 2004, when the validity of the defendant’s opinion was first challenged by taxation authorities, because discovery of a potential problem with the opinion was not discovery of a negligence claim. There was merit in the plaintiff’s allegation that he did not discover his claim until the two representative test cases were settled in 2008. His pleadings did not demonstrate that he knew the CCRA’s challenge to his credit claim would likely be successful prior to 2008. That could not have been determined until the conclusion of the dispute with the CCRA.

[37] Goudge and Simmons JJ.A identified two issues with the motion judge’s reasons:
On the one hand, although the motion judge seems to acknowledge that the notices of disallowance were not a final disposition of the tax credit issue – and therefore at best provided notice of a potential claim – he appears to have concluded that all class members should have known when they received the notices of disallowance that the CCRA could successfully challenge their claims for tax credits and that the action therefore became statute-barred at that time.

Further, the motion judge appears to have treated the class members' knowledge that they were incurring professional fees to challenge the CCRA's denial of the claimed tax credits as a relevant factor affecting the commencement of the limitation period.

In our view, neither the fact that the CCRA was challenging the claimed tax credits nor the fact that the class members may have been incurring professional fees to challenge the CCRA’s denial of the tax credits is determinative of when the class members reasonably ought to have known they had suffered a loss as a result of a breach of the standard of care on the part of Cassels Brock.

As pleaded in the fresh as amended statement of claim, the Cassels Brock opinion was that it was unlikely that the CCRA could successfully deny the claimed tax credits. Accordingly, the fact of a CCRA challenge to the tax credits did not, in itself, mean the challenge would likely be successful or make the Cassels Brock opinion invalid. Further, even accepting that receipt of the notices of disallowance prompted class members to obtain professional advice and to launch test case litigation to challenge the denial of the tax credits, that conduct does not demonstrate when class members knew, or ought reasonably to have known, that the test case litigation would not likely be entirely successful. [Citations omitted.] [Emphasis added.]
[38] I note that, although the court in Lipson did not explicitly address the appropriateness criterion in s. 5(1)(a)(iv) of the Act, its reasoning would be accurately described as holding that the plaintiff did not discover that a proceeding against the defendant was necessary or appropriate until the tests cases were resolved in 2008. Before then, and particularly in 2004, the mere fact that the taxation authorities had resisted the plaintiff’s tax credits claim did not give the plaintiff knowledge that commencing a proceeding against the defendant in court would be necessary or an appropriate means to recover his losses.
[39] Non-administrative, alternative processes have also been seen in other cases as having the potential to resolve a dispute, thus rendering a court proceeding inappropriate or unnecessary.

[40] For example, in Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, a plaintiff sued on a foreign judgment in Ontario. The defendant, the foreign judgment debtor, said that the plaintiff’s action was time barred. The issue was whether the plaintiff’s claim on the foreign judgment was discovered at the time of the foreign trial judgment or at the time of the decision on the appeal from that judgment in the foreign jurisdiction.

[41] This court held that the claim was not discovered, and thus the limitation period did not begin to run, until the foreign appeal process had run its course. This was because it was not legally appropriate for the plaintiff to commence a legal proceeding in Ontario until then. Strathy C.J.O. observed at para. 77:
In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor’s proceeding on the foreign judgment disappears.
[42] In Figliolini, Strathy C.J.O. approved of the reasoning of Chiappetta J. in U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103. U-Pak involved a motion to amend a statement of claim, including to add plaintiffs in a proceeding against the defendant municipality. The defendant had issued a request for tender for the contracting of waste disposal services for residents of the municipality. The defendant argued that the claims of the new proposed plaintiffs, which arose out of alleged wrongdoing by the defendant in the tender process, were statute-barred, as they would be added more than two years after the tender process began but less than two years after it concluded.

[43] Master Abrams disagreed. She permitted the amendment of the statement of claim, and the defendant to plead the limitation period. She held that there was a plausible argument the claim was not discoverable until the tender process ended: see 2013 ONSC 6535.

[44] Her decision was upheld by Chiappetta J., who wrote, at paras. 24-25:
The Master concluded that ‘legally appropriate’ could be interpreted to include circumstances where the commencement of a proceeding would affect a legal relationship between the parties. The legal implications for taking action during the course of an active tender process were known to the Plaintiff; under the terms of the tender, Durham Region would have been within its legal right to disqualify the Plaintiff and the proposed plaintiffs' bid.

In my view, the Master correctly concluded there is a potentially successful argument to be made by the prospective plaintiffs that their claims were not legally appropriate until the whole tender process expired because a claim during the process would legally disqualify them from continuing to participate in the very process that may upon its completion form the foundation of the claim. If this argument were accepted, the proposed plaintiffs could not have had a viable claim as of [the date of the first alleged wrongdoing by the defendant in the tender process] because the ‘appropriate means’ element of discoverability had not yet crystallized. [Emphasis added.]
Thus, U-Pak provides another example of a scenario in which it may not be appropriate or necessary for a plaintiff to commence a court proceeding while an alternative process that could potentially affect or eliminate its dispute with the defendant remains ongoing.

[45] Many of the cases dealing with the effect of alternative processes on the appropriateness of a court proceeding have applied the concept of a proceeding being “legally appropriate” articulated by this court in Markel. Markel involved a dispute between sophisticated insurers claiming indemnity under statutory loss transfer rules. The limitations issue that arose concerned whether a legal proceeding was “inappropriate” while settlement discussions between the parties were ongoing and thus, whether a claim was not discovered until these negotiations broke down.

[46] Recall that, in Markel, the court held that the term “appropriate” in s. 5(1)(a)(iv) means “legally appropriate”. This interpretation avoided entangling courts in the task of having to “assess [the] tone and tenor of communications in search of a clear denial” that would indicate the breakdown of negotiations between the parties. That would permit a plaintiff to delay the discoverability of a claim for “some tactical or other reason” and “inject an unacceptable element of uncertainty into the law of limitation of actions” (at para. 34).

[47] Similarly, in 407 ETR Concession Company, at para. 47, Laskin J.A. stated that the use of the term “legally appropriate” in Markel “signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless” (emphasis added).

[48] These cases instruct that if a plaintiff relies on the exhaustion of some alternative process, such as an administrative or other process, as suspending the discovery of its claim, the date on which that alternative process has run its course or is exhausted must be reasonably certain or ascertainable by a court. In Markel, the date on which settlement discussions between the parties ran their course, and thus the date on which the plaintiff’s claim was purportedly discovered, was not sufficiently certain or ascertainable by the court. By contrast, in Figliolini it was reasonably certain that the foreign appeal process had been exhausted on the day that the foreign appellate court had released its judgment, and in Lipson it was reasonably certain that the CCRA appeal process ran its course on the date that the 2008 test cases were settled.
. Winmill v. Woodstock (Police Services Board)

In Winmill v. Woodstock (Police Services Board) (Ont CA, 2017) the Court of Appeal discusses the 'when proceeding is appropriate' leg of s.5(1)(a)(iv) of the Limitations Act discoverability criterion:
[16] The analysis of the limitation period in this case must take place within the confines of ss. 4 and 5(1) of the LA, which provide:
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

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 …. [Emphasis added.]
[17] I begin with a structural point. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts: see West v. Ontario, 2015 ONCA 147 (CanLII), at paras. 2-3.

[18] Turning to s. 5(1)(a) of the LA, in this case there is no issue with respect to the first three of the four factors set out in this clause. The appellant knew that he had been injured on June 1, 2014, that the injury was caused by physical blows to his body, and that at least some of the respondents administered those blows.

[19] The crucial issue is the fourth factor: did the appellant know on June 1, 2016 that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him?

[20] The motion judge answered this question in the affirmative. She reasoned:
It is clear from the evidence the plaintiff had knowledge that litigation was available to him as a remedy for the damages he had suffered at the hands of the police. Whether and to what extent he may have been found criminally responsible for the offences with which he had been charged was in no way determinative of whether or not he had been the subject of excessive force and assaulted by police.



The plaintiff admitted he knew litigation was an option and by extension he is therefore deemed to know it was appropriate to sue the Woodstock Police Service for redress of his injuries suffered on June 1, 2014.
[21] In assessing whether the motion judge erred in reaching this conclusion, I begin with three contextual points about subclause (iv) of s. 5(1)(a) of the LA.

[22] First, the word “appropriate” means “legally appropriate”. As explained by Sharpe J.A. in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), at para. 34:
In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Emphasis in original.]
[23] Second, this does not mean that determining whether a limitation period applies involves pulling two simple levers – date of injury and date of initiation of legal proceeding – and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. As Laskin J.A. cautioned in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII) (“407 ETR”), at paras. 33-34:
The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

Also, when an action is “appropriate” depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325 (CanLII), 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts. [Emphasis added.]
[24] Third, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim: see Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808 (“Novak”), at para. 85; and 407 ETR, at paras. 44-46.
. Nasr Hospitality Services Inc. v. Intact Insurance

In Nasr Hospitality Services Inc. v. Intact Insurance (Ont CA, 2018) the Court of Appeal discusses the 'appropriate means' aspect of the limitation discoverability test [s.5(1)(a)(iv)]:
[46] In commencing his analysis under s. 5(1)(a)(iv) of the Act, the motion judge properly noted the general proposition that the determination of when an action is an appropriate means to seek to remedy an injury, loss or damage depends upon the specific factual or statutory setting of each individual case: 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII), 133 O.R. (3d) 762, leave to appeal refused, [2016] S.C.C.A. No. 509, at para. 34; Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 (CanLII), 138 O.R. (3d) 641, leave to appeal to SCC requested, at para. 23.

[47] However, as this court has observed, that general proposition is not an unbounded one.

[48] First, in Markel Insurance this court confined the meaning of “appropriate” to “legally appropriate”. Writing for the court, Sharpe J.A. stated, at para. 34:
This brings me to the question of when it would be “appropriate” to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Italics in original; underlining added.]
[49] Second, in 407 ETR, Laskin J.A. noted, at para. 47, that the use of the phrase “legally appropriate” in Markel Insurance, “signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless” (emphasis added).

[50] Finally, in Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325 (CanLII), 135 O.R. (3d) 321, Pardu J.A. observed that the jurisprudence discloses two circumstances in which the issue of appropriate means most often delays the date on which a claim was discovered. First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss: at para. 26. Second, a legal action might not be appropriate if an alternative dispute resolution process “offers an adequate alternative remedy and that process has not fully run its course”: at para. 29. See also paras. 28-48; and Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469 (CanLII), at paras. 21 and 34-35. In this regard, in Winmill this court held that resort to a civil proceeding for a remedy in respect of damage flowing from an incident might not be an appropriate means while criminal proceedings in respect of the incident remain outstanding: at para. 28.

[51] Although Presidential MSH does not purport to offer an exhaustive list of circumstances in which a proceeding might not be an appropriate means, I would observe that neither circumstance identified in Presidential MSH is present in this case. Some other factor would have to displace the s. 5(2) presumption that Nasr knew a proceeding was an appropriate means on February 1, 2013.
. Presley v. Van Dusen

In Presley v. Van Dusen (Ont CA, 2019) the Court of Appeal focussed on s.5(1)(a)(iv) of the Limitations Act, which makes when the plaintiff 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" part of the discoverability test:
(2) Was it appropriate for the appellants to delay bringing an action against the respondent Van Dusen?

[17] Subsection 5(1)(a)(iv) serves to deter needless litigation: 407 ETR Concession Co. v. Day, 2016 ONCA 709 (CanLII), 133 O.R. (3d) 762, at para. 48, leave to appeal refused, [2016] S.C.C.A. No. 509. If a legal proceeding is inappropriate, the start date for the commencement of the limitation period is postponed beyond the date on which the constitutive elements of the claim are discovered: Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325 (CanLII), 135 O.R. (3d) 321, at paras. 17-18.

[18] In Presidential MSH, which I note, in fairness to the trial judge, was decided after the trial in this case, Pardu J.A. reviewed the jurisprudence and distilled and extracted two guiding principles on the effect of assistance by a defendant to eliminate the loss.

[19] First, at para. 20:
[A] legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.
[20] Second, at para. 26:
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. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused. The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.
[21] These principles are applicable to the facts of this case. Van Dusen is licenced to install septic systems. The appellants contracted with him because of his special training and expertise. While the respondents argue he may not qualify as “an expert professional”, there can be no question he did have expertise upon which the appellants reasonably relied.

[22] Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships: Presidential, at para. 26. 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. For instance, Brown v. Baum, 2016 ONCA 325 (CanLII), 397 D.L.R. (4th) 161, involved a physician, Chelli-Greco v. Rizk, 2016 ONCA 489 (CanLII), involved a dentist, and Presidential MSH involved an accountant. 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. For instance, in YESCO Franchising LLC v. 2261116 Ontario Inc., 2017 ONSC 4273 (CanLII), the court found that s. 5(1)(a)(iv) applied in a franchisor-franchisee relationship where the franchisees relied on the franchisor’s superior knowledge and expertise, even though the franchisor was not a member of an expert profession. Similarly, in Barrs v. Trapeze Capital Corp., 2017 ONSC 5466 (CanLII), aff’d 2019 ONSC 67 (Div. Ct.) (CanLII), the Superior Court and the Divisional Court found that s. 5(1)(a)(iv) applied to investors who relied on the superior knowledge and expertise of their investment portfolio managers.
. 407 ETR Concession Company Limited v. Day

In 407 ETR Concession Company Limited v. Day (Ont CA, 2016) the Court of Appeal discusses the discoverability issue of when an action is the 'appropriate means' of seeking remedy in a situation where other statutory remedies are also available. The court decided, on the facts of this case, that the limitation period only commenced when another statutory route (here, a 'license plate denial process' for non-payment of road tolls) was exhausted:
[30] Assuming the 15-year limitation period in Mr. Day’s transponder lease agreement does not apply, 407 ETR’s claim is subject to the basic two-year limitation period in s. 4 of the Limitations Act, 2002. Under s. 4, “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered” (emphasis added).

[31] The day on which 407 ETR’s claim was discovered is the day on which 407 ETR knew or ought to have known the four matters set out in s. 5(1)(a) of the Act:
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).
[32] Obviously, 407 ETR knew the first three matters in s. 5(1)(a) as early as the delivery of its s. 16 notice in March 2011. It knew by then it had suffered a loss; it knew the loss was caused by the failure to pay an invoice that was due and payable; and it knew that Mr. Day had failed to pay it. This first issue on the appeal turns on s. 5(1)(a)(iv): when should 407 ETR have known that a civil action against Mr. Day was an “appropriate means” to recover its loss?

[33] The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

[34] Also, when an action is “appropriate” depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325 (CanLII), 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts.

[35] In the case before us, the date when a civil action would be an “appropriate means” for 407 ETR to recover its loss must be assessed not only in the context of the purpose of that element of s. 5(1)(a) and the words that qualify it, but also in the context of the statutory regime under which 407 ETR operates.

[36] Under the Highway 407 Act, 1998, five options for the start date of the two-year period are available to choose from:
1. The date 407 ETR sends an invoice to the vehicle permit-holder, which is the date the debt becomes due and payable.

2. Thirty-five days after the invoice is sent, which is the date the toll debt becomes delinquent and entitles 407 ETR to send the vehicle permit-holder a notice of failure to pay under s. 16.

3. Ninety days after a notice of failure to pay is sent, which is the date 407 ETR can ask the Registrar to put the vehicle permit-holder into licence plate denial under s. 22.

4. The date 407 ETR actually sends a s. 22 notice asking the Registrar to put the vehicle permit-holder into licence plate denial.

5. The date the vehicle permit expires for non-payment of the debt.
[37] I would immediately eliminate options one and two from consideration. Neither of these first two options is tied to the licence plate denial process. And to give effect to the legislature’s intent, it seems to me that the start date of the limitation period must be tied to that process. The legislature enacted that process for a reason: it was not content to force 407 ETR to sue in the courts for unpaid toll debts. I fully agree with the Divisional Court that licence plate denial is an effective, necessary and indeed integral feature of an open access toll highway. Tying the start date of the limitation period to the licence plate denial process acknowledges the significance the legislature attached to that process for the collection of unpaid tolls. In this court, Mr. Manes on behalf of Mr. Day fairly did not urge us to adopt option one or two. The start date of the two-year period then turns on whether we should adopt on the one hand option three or four, or on the other hand option five.

[38] The motion judge’s reasons and order were a source of some confusion to the parties. His formal order adopts option three (the date 407 ETR could have asked the Registrar to put Mr. Day into licence plate denial), but parts of his reasons may be read as adopting option four (the date 407 ETR actually did send notice to the Registrar to put Mr. Day into licence plate denial). Nothing turns on this apparent confusion, as I would adopt option five.

[39] A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid – in other words, when the usually effective licence plate denial process has run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt. This date starts the two-year limitation period. For Mr. Day, this date is December 31, 2011. I say this for four reasons.

[40] First, under s. 5(1)(a)(iv) of the Limitations Act, 2002, the date a proceeding would be an appropriate means to recover a loss must have “regard to the nature of the ... loss”. So, in fixing the appropriate date, it may not be enough that the loss exists and the claim is actionable. If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used. Here, a claim will not be appropriate until 407 ETR has used that other method, without success.

[41] As the Divisional Court recognized it its 2005 decision, and the motion judge recognized in this case, the other method for toll collection provided for in the Highway 407 Act, 1998 – licence plate denial – is far more effective than a civil action. By providing for licence plate denial, the legislature must be taken to have recognized its effectiveness. People who cannot renew their vehicle permits until they deal with their toll debts have a powerful incentive to pay.

[42] The statistical evidence bears out the effectiveness of licence plate denial. 407 ETR issues over one million invoices a month. Nearly 70 per cent of those invoices are paid within one month, which means just over 30 per cent are not. Significantly, about 75 per cent of permit holders in default pay their toll debts after being advised the Registrar has sent a s. 22 notice. Of those, just over one half pay before or on the date their vehicle permits have to be renewed; the remainder pay after their vehicle permits have expired.

[43] These statistics show that the motion judge’s start date – the delivery of a s. 22 notice to the Registrar – is too early in the process. It comes at the beginning of the process instead of where I think it should come, at the end. The licence plate denial process should be allowed to run its course. As the statistics show, most people, fearing the consequences, eventually pay after receiving a s. 22 notice. Only if the process fails to prompt payment does litigation become an appropriate means to recover the debt.

[44] Second, in determining when a claim ought to have been discovered, s. 5(1)(b) of the Limitations Act, 2002 requires the court to take account of “the circumstances of the person with the claim”. 407 ETR’s “circumstances” differ from those of many other creditors. Highway 407 itself is enormously busy: 380,000 trips on an average workday. As a consequence, 407 ETR must process an enormous number of invoices, almost all for amounts of no more than a few hundred dollars apiece. And unlike, for example a credit card company, which can cancel a customer’s credit card for non-payment of a debt, 407 ETR cannot bar a defaulting debtor’s access to the highway.

[45] 407 ETR’s “circumstances” strongly suggest that requiring it to sue before finding out whether licence plate denial has achieved its purpose would be inappropriate. An important case on the significance of a plaintiff’s “circumstances” is the majority judgment in Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808. In that case, McLachlin J. considered s. 6(4)(b) of British Columbia’s Limitations Act, R.S.B.C. 1996, c. 266, which provided that time did not begin to run against a plaintiff until “the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action” (emphasis added). At para. 85 of her reasons, McLachlin J. discussed “interests and circumstances” and cautioned against the potential unfairness of requiring a plaintiff to bring an action at the time a claim first materializes:
Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely. [Emphasis added; footnotes omitted.]
[46] Similarly here, holding that time begins to run against 407 ETR before it knows whether licence plate denial has prompted payment would be unfair, or to use the word of our statute, would not be “appropriate”.

[47] Holding that the two-year period begins after the licence plate denial process fails to prompt payment does not raise the concern Sharpe J.A. referred to in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218 (CanLII), 109 O.R. (3d) 652, at para. 34. There, he said that “appropriate” must mean “legally appropriate”. By using that phrase he signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless. In this case, however, 407 ETR seeks to delay the start of the limitation period for a legally appropriate reason: waiting until a statutorily authorized process has been completed.

[48] A third consideration is what I take to be an important purpose of s. 5(1)(a)(iv). The overall purposes of limitation statutes are well-established and well-known: certainty, finality and the unfairness of subjecting defendants to the threat of a lawsuit beyond a reasonable period of time. But it seems to me one reason why the legislature added “appropriate means” as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation. As my colleague Juriansz J.A. noted in his dissenting reasons in Hare v. Hare (2006), 2006 CanLII 41650 (ON CA), 83 O.R. (3d) 766 (C.A.), at para. 87, courts take a dim view of unnecessary litigation.

[49] If the limitation period runs concurrently with the licence plate denial process, as would be the case under the motion judge’s start date, then there would be the real possibility of numerous Small Claims Court claims. And these claims would be needless because the vast majority of defendants would likely pay their debts to avoid having their vehicle permits expire. The evidence in the record shows that as of June 2014, for invoices outstanding for 23-24 months, 10,144 separate court actions would be required. The average amount of each claim would be $497. Only one to two per cent of claims would exceed $5,000.

[50] I acknowledge Mr. Day’s argument that if the motion judge’s start date is used, 407 ETR could in almost every case still bring any necessary actions within the two-year period, because vehicle permits have to be renewed every two years. But imposing a burden on 407 ETR to keep track of two concurrent proceedings – licence plate denial and the running of the two-year limitation period – is impractical and unnecessary. Such a burden does not provide an effective method of toll collection. A far simpler and more appropriate solution is to delay the start of the limitation period until the licence plate denial process has ended.

[51] Finally, although 407 ETR has discretion when and even whether to send a s. 22 notice to the Registrar, that discretion does not detract from the appropriateness of using the end of the licence plate denial process as the start of the two-year limitation period. In theory, I suppose, as Mr. Day contends, 407 ETR could use its discretion to manipulate the start date. But why, one may ask rhetorically, would it do so? Its commercial interests dictate otherwise.

[52] In this case, we have no evidence 407 ETR manipulated the date for sending Mr. Day a s. 16 notice or the Registrar a s. 22 notice. A short delay occurred between the date it could have given these notices under the statute and the dates it actually gave these notices. The short delay was presumably attributable to the necessity of accessing the relevant databases and other administrative matters.

[53] Also, even accepting that 407 ETR has discretion when to send the s. 16 and s. 22 notices, the end date of the licence plate denial process is a date that is certain and easily ascertainable. It is the date when the holder’s vehicle permit comes up for renewal. If the holder’s debt has not been paid by this date, then an action becomes an appropriate means to recover the debt and the two-year limitation period begins to run.


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