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Limitations - Discoverability - Appropriate Means III

. Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289

In Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289 (Ont CA, 2022) the Court of Appeal supported the plaintiff's reliance on the appropriate means element of discoverability when they relied on the defendant's practice of paying invoices on a running account periodically when they were in turn paid by condo members. The appeal court varied the discoverability date from the date that the creditor retained a lawyer for a demand letter, to the later date that the debtor repudiated the running account arrangement, but the claim was still within the two years:
[1] This appeal concerns the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and specifically, when the respondent Thermal Exchange Service Inc. (“Thermal Exchange”) knew that a proceeding would be an appropriate means to seek to remedy a loss resulting from the appellant Metropolitan Condo Corp.’s (the “Condo Corp”) non-payment of its invoices. It is a question that can only be answered in the specific context of the parties’ legal relationship and their business dealings.

...

[15] The trial judge concluded, relying upon Presley v. Van Dusen, 2019 ONCA 66, 144 O.R. (3d) 305, that Thermal Exchange would not have known a proceeding was an appropriate means to seek a remedy until October 2015, when it realized it would have to instruct its counsel to commence legal proceedings:
…the assurances made by the property manager and the superintendent of the [Condo Corp.] that they were “working on it” did lead the Plaintiff to the reasonable belief that his problems could and would be remedied without the need to have a recourse to the courts… I find that the Plaintiff did not know and that a person in its situation would not reasonably have known that a proceeding would be an appropriate means to seek a remedy until the time when he realized that [the Plaintiff] would have to instruct counsel for the Plaintiff to commence legal proceedings against the [Condo Corp.].
[16] Since the civil action was commenced within two years of the demand letter, the trial judge held, the limitations defence failed.

....

[21] Significantly, the trial judge found that the nature of the commercial relationship between the parties was that there was a single running account, and whenever Thermal received funds from the Condo Corp, it was credited to that account. The trial judge accepted the evidence of Mr. Pontaric that he sincerely believed the Condo Corp. had been dealing with him in good faith and that Ms. Da Ponte’s statements that she was “working on it”, meant that his invoices would eventually be paid. He did not realize until her email of November 4, 2015 that she was, on behalf of the Condo Corp., taking the position that payment by Condo Corp. would be contingent on payment by the unit owner.

[22] The Condo Corp. argued on appeal that the trial judge erred in holding that the Ms. Da Ponte’s assurances were analogous to the class of cases summarized in Presley v. Van Dusen, drawing on Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, where a plaintiff postpones bringing an action because of assurances by a defendant – who has a superior understanding of the problem – that the defendant can remedy the matter, such that litigation would not be necessary. The Condo Corp. argues that this case is nothing like Van Dusen, given that: (1) Thermal Exchange was not relying on the Condo Corp. to fix a mechanical problem beyond the expertise of Thermal Exchange; (2) the Condo Corp. never promised unequivocally to pay the invoices, but was simply stringing a creditor along; and (3) Thermal Exchange waited substantially longer to begin a proceeding than the plaintiff in Van Dusen did.

[23] We do not agree that the trial judge erred in her analysis. There is nothing in the reasoning in Van Dusen that would restrict its application to comparative expertise over mechanical problems. The salient aspect is that the defendant created a problem, the remedy for which was beyond the reach of the plaintiff’s understanding, and led the plaintiff to rely on it for the remedy. Analogous to the situation in Van Dusen, the Condo Corp. created a barrier to Thermal Exchange receiving payment (it would not pay unless it first received payment from the unit owners, and was not taking any steps to getting the unit owners to pay), prevented Thermal Exchange from understanding the nature of the problem, and led Thermal Exchange to believe that it would take care of the problem.
. Trivedi v. Hudd

In Trivedi v. Hudd (Ont CA, 2022) the Court of Appeal considered the 'appropriate means' extension of Ontario's two-year limitation period:
[16] I see no error in the motion judge’s conclusion that the email correspondence made it clear that a legal remedy would be appropriate. Given the email correspondence, trying to settle the matter through friends or negotiation did not stop the limitation period from running. A party cannot rely on his own tactical reasons for delaying the commencement of legal proceedings: Markel Insurance Company of Canada v. ING Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34; Davies v. Davies Smith Developments Partnership, 2018 ONCA 550, at para. 13.
. 1352194 Ontario Inc. v. Vince [***]

In 1352194 Ontario Inc. v. Vince (Div Ct, 2021) the Divisional Court characterized 'appropriate means' as follows:
[23] The Court of Appeal for Ontario has stated that “appropriate” in s. 5(1)(a)(iv) means legally appropriate. It does not allow a party to delay the commencement of proceedings for tactical or other reasons beyond two years from the date the claim is fully ripened: Unicorr Limited v. Minuk Construction, 2016 ONSC 7350, at para. 82, quoting Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.

[24] When dealing with unpaid invoices, courts have applied the factors set out in s. 5(1) to find that the limitation period on an unpaid invoice begins to run once a reasonable period of time for its payment has elapsed: see e.g., Collins Barrow Toronto LLP v. Augusta Industries Inc., 2017 ONCA 883; Deloitte & Touche LLP v. Kuiper, 2015 ONSC 7770; and T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665.
. Kumarasamy v. Western Life Assurance Company

In (Ont CA, 2021) the Court of Appeal considers an error made by the judge below on an 'appropriate means' determination:
[23] As I shall explain, the motion judge erred in her analysis of the central question. Section 5(1) of the Limitations Act, 2002 requires consideration of when the plaintiff ought to have known four things: (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. The subsection then requires a determination of the day when a “reasonable person” first ought to have known of these matters. A claim is discovered, within the meaning of the Limitations Act, 2002, on the earlier of these two dates.

[24] Of importance as well is section 5(2). It provides a statutory presumption regarding the state of knowledge of a person with respect to the requirements set out in s. 5(1). Specifically, s. 5(2) reads:
A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
The section is a statutory codification of the requirement that an insured person must act with due diligence in pursuing any claim: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at paras. 42-43.

...

[28] The central errors made by the motion judge are her conclusion regarding when the respondent ought to have known that a loss occurred and her conclusion that the required element of discoverability, found in s. 5(1)(a)(iv), that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage, was only satisfied when the appellant clearly and unequivocally denied the respondent’s claim. The motion judge does not cite any authority for this conclusion, and it is at odds with other authorities, most notably, this court’s decision in Thompson v. Sun Life Assurance Company of Canada, 2015 ONCA 162, [2015] I.L.R. I-5721.

[29] In Thompson, this court found that there were two reasons why the injured party’s claim was barred. One was that the injured party had failed to meet the qualifying conditions of the policy: at paras. 11-12. The other was that the two-year limitation period had expired because the injured party knew of her total disability in August 2008 but did not commence her action until September 17, 2010: at paras. 13-14. The latter conclusion applies equally to this case. The respondent knew of the significance of his injuries by the end of August 2014. However, because of the terms of the Policy, the respondent was not entitled to receive LTD disability payments until February 26, 2015. Applying the Thompson approach, the limitation period would have commenced on February 26, 2015, which was the first day benefits would have been payable had the respondent submitted a timely application and met the Policy’s definition of Total Disability. By that time, the respondent knew that he was injured, he believed that he was entitled to long-term disability payments, and he knew that the appellant was not making those payments.

[30] The motion judge attempted to avoid the consequences of Thompson, and other cases in the Superior Court of Justice subsequently decided along the same lines, on the basis of s. 5(1)(a)(iv), that is, that litigation was not an appropriate remedy until the appellant categorically denied the respondent’s claim. While the motion judge said, “I agree with Western Life that a clear and unequivocal denial is not necessarily required to start the limitations clock” (at para. 62), it is evident from the balance of her reasons and her conclusion that that is, in fact, what she required.

[31] There is no authority for the proposition that a clear and unequivocal denial is required. It may be that there will be some cases where an insurer may, by its conduct, lead an insured person to believe that their claim has not been denied (and thus litigation is not required). Those cases will likely be rare, and, in any event, this case is not one of them. The appellant did not do anything to lead the respondent into the belief that his claim was still alive and well. In fact, the appellant did the opposite. First, the appellant had told the respondent that his file had been closed. Second, when the issue was raised again, almost two years later, the appellant expressly told the respondent’s lawyers that, in undertaking its re-examination of the claim, the appellant was not waiving any applicable time limits.

[32] To accede to the motion judge’s conclusion is to do that which this court cautioned against in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, where Sharpe J.A. discussed the appropriate means requirement in s. 5(1)(a)(iv) and said, at para. 34:
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.
[33] I would add another reason for rejecting any suggestion that a limitation period does not commence until an insurer has made a “clear and unequivocal” denial of a claim. To adopt such an approach would only serve to encourage insurers to make such denials at their earliest opportunity to ensure that the “limitations clock” starts to run. It would thus discourage insurers from undertaking a fair evaluation of the claim before making a decision. It might also lead to the commencement of more premature or needless proceedings, which is contrary to the intent of the subsection: Markel, at para. 34; 407 ETR Concession Co. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, leave to appeal refused, [2016] S.C.C.A. No. 509, at para. 48.

[34] The motion judge’s conclusion in this case is at odds with the jurisprudence from this court regarding the proper interpretation of s. 5(1)(a)(iv), that is, when litigation is an appropriate remedy. It is contrary to the decision in Thompson, as I have already explained. It is also contrary to this court’s decision in Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, where Brown J.A. undertook an analysis of the existing authorities on the proper interpretation of s. 5(1)(a)(iv). In doing so, Brown J.A. noted that there are certain circumstances where the conduct of an insurer may, essentially, toll the limitation period. He referred to the decision in Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, where Pardu J.A. had identified two such circumstances: (i) where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss; and (ii) if an alternative dispute resolution process offers an adequate alternative remedy and that process has not fully run its course. Like the situation in Nasr, neither of those circumstances arise in this case.

[35] Indeed, in this case, there is little to which the respondent can point in the conduct of the appellant that could give rise to a situation akin to promissory estoppel that is often used in insurance cases to avoid the effect of a limitation period: see the discussion in Nasr at paras. 53-56. Any such suggestion becomes more problematic, in the circumstances of this case, since the respondent had access to lawyers throughout the five years before this action was commenced.

[36] In the end result, there are three potential start dates for the limitation period that arise in this case and that would be consistent with the existing jurisprudence. One is February 26, 2015, when the elimination period required by the Policy expired and the respondent should have started to receive LTD payments, if he was entitled to them. Another is June 7, 2015, when the respondent would have received the appellant’s notification that his claim file had been closed. At that point, the respondent knew that, not only was the appellant not making payments to him, but the appellant was also not going to make payments to him in the future. Yet another is November 8, 2016, when his lawyers received copies of the same correspondence.

[37] I do not need to decide which of these three dates is the actual start date because the two-year limitation period passed with respect to all of them before this proceeding was commenced on June 28, 2019. The respondent’s claim for LTD benefits under the Policy is therefore statute-barred.

[38] Before concluding, I should note that the motion judge did not expressly address s. 5(2) of the Limitations Act, 2002 when conducting her appropriate means analysis. In fairness, it is not clear that the parties raised it. Nevertheless, it was a matter that was required by the terms of the Limitations Act, 2002 to be taken into account. However, it is obvious that the motion judge took the view that the respondent had displaced the presumption that the date of the injury (extended to February 26, 2015 because of the terms of the Policy) was the day he ought to have known that a proceeding was an appropriate means to remedy his loss, because the appellant had not made an unequivocal denial of his claim. I have already explained why the motion judge erred in adopting that approach.
. Dass v. Kay

In Dass v. Kay (Ont CA, 2021) the Court of Appeal considered the 'appropriate means' discoverability principle of Limitations Act s.5(1)(a)(iv):
(1) The Law – The Limitations Act, 2002

[22] Section 4 of the Limitations Act, 2002 states: “[u]nless 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.”

[23] The determination of when a claim was discovered is governed by s. 5:
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). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
[24] Although the Limitations Act, 2002 essentially codified the existing discoverability principle (Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 35), s. 5(1)(a)(iv) added a new factor to that analysis – the appropriateness of bringing a proceeding. This factor is central to this appeal.

[25] This court’s jurisprudence interpreting s. 5(1)(a)(iv) was recently distilled into three principles by Hourigan J.A. in Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005, 441 D.L.R. (4th) 393, at paras. 16-19.

[26] First, the determination of whether a proceeding is an appropriate means to seek to remedy an injury, loss, or damage depends on the factual and statutory context of each case: Sosnowski, at para. 16.

[27] Second, this court has recognized two non-exclusive factors that can operate to delay the date on which a claimant would know that a proceeding would be an appropriate means to remedy a loss: (i) when the plaintiff relied on the defendant’s superior knowledge and expertise, particularly where the defendant has taken steps to ameliorate the plaintiff’s loss; and (ii) “where an alternative dispute resolution process offers an adequate remedy, and it has not been completed”: Sosnowski, at para. 17.

[28] Third, “appropriate” means that it is legally appropriate to bring a proceeding, rather than practically advantageous. This third principle excludes from consideration many practical and tactical reasons a claimant might have for not commencing a proceeding at an earlier time when it was legally appropriate to do so, such as the belief that the claim might be difficult to prove. Put differently, “[a]ppropriate does not include an evaluation of whether a civil proceeding will succeed”: Sosnowski, at paras. 18-19.

....

[40] Claimants such as the appellants who have relied on the advice of their legal counsel are not in an analogous position to claimants who have relied on the assessment of their situation provided by defendants. The case law recognizes that it would be unreasonable to discourage claimants from reasonably relying on a defendant’s good-faith efforts to remedy an issue and thereby potentially avoiding the need for a lawsuit: Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161, at paras. 18, 24; Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, at paras. 20, 26. Here, the appellants have been in no way dependent on the respondents for information, an understanding of their position in relation to Roynat or any other lender, or efforts to remedy the damage they claim to have suffered. The appellants accordingly never delayed bringing an action on that basis.

[41] Neither have the appellants engaged in an alternative dispute resolution process with the respondents, such that it would be unfair not to take that process into account under s. 5(1)(a)(iv): 407 ETR Concession Co. Ltd. v. Day, 2016 ONCA 709, 133 O.R. (3d) 762, at para. 40, leave to appeal refused, [2016] S.C.C.A. No. 509; Presidential, at paras. 28-29.

[42] The appellants are not, of course, restricted to the two categories of cases identified to date that delay the start of the limitation period. But if they cannot bring themselves within those two categories they must propose another set of circumstances in which it could be said, on a principled basis, that a person with a claim could not have known that an action would be an appropriate means to remedy the injury, loss, or damage.

[43] What the appellants have proposed is, in effect, an expansion of the class of matters under s. 5(1)(a)(iv) to include any situation where plaintiffs know they have been wronged or suffered damage at the hands of the defendants, but doubt they will be able to marshal the evidence to prove the claim and are unsure whether the scale of the eventual commercial loss will make an action remunerative.

[44] This proposal has been considered and rejected by courts repeatedly: Sosnowski, at para. 19; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 18. The motion judge made no error in not accepting it. To give s. 5(1)(a)(iv) the meaning that the appellants propose would substantially reduce the certainty the Limitations Act, 2002 is intended to provide.
. Fercan Developments Inc. v. Canada (Attorney General)

In Fercan Developments Inc. v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered an 'appropriate means' limitation issue, particularly the standard of review to which that is subject:
1. Standard of Review

[11] Whether a limitation period expired before an action was commenced is a question of mixed fact and law, and subject to review on appeal based on a “palpable and overriding error”: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 38; Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at para. 40. This is the case whether the determination is made at trial or in a motion for summary judgment: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 85. Findings of fact by the court below are subject to review on a palpable and overriding error standard. A “palpable and overriding error” is “an obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo, at para. 39. However, where there is an extricable error of principle, the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.R. 235, at paras. 8, 36.

[12] Contrary to the appellants’ arguments, this is not a case that involves the interpretation of a statutory provision, namely s. 5(1)(a)(iv) of the Limitations Act, where the standard of review is correctness. Nor, as we explain, is there any demonstrated error of law or principle in the trial judge’s analysis, or any palpable and overriding error in her findings of fact or her application of the legal test to such findings.

2. The Legal Test

[13] The motion judge applied the correct legal framework. Citing Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, she recognized that determining whether an action is statute-barred or declaring when a claim was discovered requires the court to make specific findings of fact about each element set out in s. 5 of the Limitations Act, and she went on to make such factual findings.

[14] After concluding that the first three elements of the discoverability test under ss. 5(1)(a)(i), (ii) and (iii) were met as of September 11, 2013, the motion judge addressed s. 5(1)(a)(iv). In doing so, she cited the relevant jurisprudence from this court, noting that the determination under s. 5(1)(a)(iv) 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) and that the issue was whether the limitation period should be “suspended because a proceeding would be premature” (Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, 135 O.R. (3d) 321, at para. 27). The motion judge recognized that s. 5(1)(a)(iv) reflects that parties should be discouraged from rushing to litigation, while delay for tactical reasons would not suspend the running of the limitation period: Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.

[15] The appellants argue that the motion judge’s decision significantly expands the application of the “appropriate means” element of the discoverability test under s. 5(1)(a)(iv) beyond any previous jurisprudence from this court, and that it injects uncertainty into the law of limitations. They contend that the motion judge relied on irrelevant factors, and that she ought to have restricted her analysis to a consideration of whether the respondents were pursuing an alternative means of remedying their alleged losses, such that it was not yet appropriate for them to commence an action in respect of those losses.

[16] We disagree. Contrary to the submissions of the appellants, the motion judge properly recognized that there were not simply two categories of cases in which it might not be legally appropriate to start a proceeding despite the claim having been discovered, within the meaning of s. 5(1)(a)(i)-(iii): Nasr, at para. 51. The motion judge did not err when she considered all of the relevant circumstances and not simply whether the forfeiture proceedings provided an alternative means for the respondents to remedy their alleged losses. She was required to consider the “nature of the injury, loss or damage” under s. 5(1)(a)(iv), as well as, under s. 5(1)(b), using a “modified objective” test, what a reasonable person with the abilities and in the circumstances of the respondents ought to have known: Presidential, at para. 18; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 32. While previous cases can assist in identifying certain general principles, whether a proceeding would have been an appropriate means to seek to remedy a claimant’s damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular claimant: Presidential, at para. 19; ETR Concession Company, at para. 34.


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