Simon's Megalomaniacal Legal Resources

Limitations Act - Other Acts (listed in the Limitations Act) [s.19,20][Schedule]

The Limitations Act, 2002 incorporates (in the Schedule, quoted below) limitations from over 40 other statutes. The Limitations Act otherwise applies to them, but they are of course subject to the variations regarding the term of the limitation period and otherwise as set out in those specific statutes.

Schedule
(Section 19)
[at 30 March 2020]

Arbitration Act, 1991 - 52 (3)

Assignments and Preferences Act - 26 (2) and 27 (2)

Business Corporations Act - 157 (2), 185 (18) and (19), 188 (9), (13) and (14), and 189 (5)

Business Practices Act - 4 (5)

City of Toronto Act, 2006 - 214 (4), 250 (2), 270 (4) and 351 (4)

Civil Remedies Act, 2001 - 3 (5) and 13 (7)

Commodity Futures Act - 60.4

Community Small Business Investment Funds Act, 1992 - 40 (8) and (9)

Construction Act - 13.18 (2) and 13.20(2) and 31 and 36

Corporations Act - 37 (2)

Creditors’ Relief Act, 2010 - 12 (1)

Drainage Act - 111

Education Act - 218 (2) and 11 (3) of Schedule 1

Election Act - 99 (4)

Environmental Bill of Rights, 1993 - 102

Environmental Protection Act - 108 (1)

Estates Act - 44 (2) and 45 (2) and 47

Estates Administration Act - 17 (5)

Expropriations Act - 43

Family Law Act - 7 (3)

Fines and Forfeitures Act - 6 (2)

Forestry Workers Lien for Wages Act - 8 (1) and 26 (1)

Fuel Tax Act - 8 (13)

Gasoline Tax Act - 5 (13)

Income Tax Act - 38

Insurance Act - 148, statutory condition 14, section 259.1 and section 281.1

International Commercial Arbitration Act, 2017 - 10

Libel and Slander Act - 6

Liquor Licence Act - 44.1 (4)

Mortgages Act - 21 (2) and 54 (2)

Municipal Act, 2001 - 273 (5), 380 (4) and 415 (2)

Municipal Conflict of Interest Act - 8 (2) and (6)

Municipal Elections Act, 1996 - 58 (2), 63 (1), 80 (6) and 83 (2)

Ontario Home Ownership Savings Plan Act - 18

Opioid Damages and Health Care Costs Recovery Act, 2019 - 6 (1)

Personal Property Security Act - 44 (13) and (14)

Prohibiting Profiting from Recounting Crimes Act, 2002 - 4 (5) and 6 (6)

Public Lands Act - 34 (3)

Reciprocal Enforcement of Judgments Act - 2 (1)

Reciprocal Enforcement of Judgments (U.K.) Act - s.1 of article iii of the Schedule

Securities Act - 129.1, 136 (6) and 138 and 138.14

Succession Law Reform Act - 61

Taxation Act, 2007 - 139

Tile Drainage Act - 2 (3)

Tobacco Damages and Health Care Costs Recovery Act, 2009 - 6 (1)

Tobacco Tax Act - 6 (10) and 24 (5)

Trustee Act - 38 (3)

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. Zachariadis Estate v. Giannopoulos Estate

In Zachariadis Estate v. Giannopoulos Estate (Ont CA, 2021) the Court of Appeal considered the limitation period set out in s.38(3) of the Trustees Act:

[32] At the hearing of the motion, the parties agreed that the applicable limitation period was the limitation set out at s. 38 of the Trustee Act. The relevant portion of that section is as follows:

38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased …

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[33] Unlike the general two-year limitation period set out at s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which begins to run when the claim is discovered, the two-year limitation period at s. 38(3) of the Trustee Act begins to run strictly upon the death of the deceased: Levesque v. Crampton Estate, 2017 ONCA 455, at para. 51. ....

. Beaudoin Estate v. Campbellford Memorial Hospital

In Beaudoin Estate v. Campbellford Memorial Hospital (Ont CA, 2021) the Court of Appeal considered the 'tolling' (suspension) of the limitation under s.38(3) of the Trustee Act for fraudulent concealment:

[1] Section 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 prescribes that certain actions brought on behalf of a deceased person must be brought within two years of the person’s death. Case law has recognized that this two-year limitation period may be tolled or suspended when the defendant fraudulently conceals the existence of the plaintiff’s cause of action. ....

[16] The respondents rely on the limitation period in s. 38 of the Trustee Act. Section 38(1) of the Trustee Act provides that, except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action “for all torts or injuries to the person or to the property of the deceased person”. Section 38(3) provides that no action under s. 38 shall be brought “after the expiration of two years from the death of the deceased”.

[17] There is no dispute that the following legal principles apply regarding s. 38(3) of the Trustee Act:

1. Claims brought by the deceased’s dependents under s. 61 of the Family Law Act are governed by the same limitation period in s. 38(3) of the Trustee Act: Camarata v. Morgan, 2009 ONCA 38, 94 O.R. (3d) 496, at para. 9; Smith Estate v. College of Physicians and Surgeons of Ontario (1998), 1998 CanLII 1523 (ON CA), 41 O.R. (3d) 481 (C.A.), at p. 488, leave to appeal refused, [1998] S.C.C.A. No. 635.

2. Section 38(3) of the Trustee Act prescribes a “hard” or absolute limitation period triggered by a fixed and known event — when the deceased dies — and expires two years later: Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 51; Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, 94 O.R. (3d) 401, at para. 25.

3. The discoverability principles under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B do not apply to toll the limitation period under s. 38(3) of the Trustee Act: Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341 (C.A.), at para. 33; Bikur Cholim, at para. 26; and Levesque, at para. 47. Although this can sometimes be harsh, since a claim under the Trustee Act can be time-barred even before it is discovered, this can be mitigated by common law rules, such as the doctrine of fraudulent concealment: Levesque, at para. 56; Bikur Cholim, at para. 25.

. Kyle v. Atwill

In Kyle v. Atwill (Ont CA, 2020) the Court of Appeal considered whether a marriage contract was void because the spouse "had signed it without financial disclosure, without legal advice, under duress, and under a clear power imbalance." At root were family law proceedings after separation claiming equalization of net family property and spousal support, and the husband was seeking to set aside the domestic marriage contract under s. 56(4) of the Family Law Act. This raised the issue of whether the set aside procedure was subject to a imitation, and if so whether that was under the Limitations Act, 2002 (LA) regime or the Family Law Act [s.7(3)] (which was preserved by s.19 of the LA):

[5] For the reasons that follow, I would allow the appeal. The husband’s plea for rescission of the marriage contract is a proceeding for a declaration where no consequential relief is sought and therefore, under s. 16(1)(a) of the Limitations Act, no limitation period applies to that pleading. The husband’s claim for equalization is subject to the six-year period set out in s. 7(3)(b) of the Family Law Act, and his claim for spousal support is not subject to a limitation period, pursuant to s. 16(1)(c) of the Limitations Act. Neither is time-barred and the action may proceed.

A detailed analysis of this, considering all applicable provisions - including s.16 [no limitations] and 19 [limitations preserved in other statutes] of the LA, and provisions of the FLA - is set out at paras 27-60.

. Allstate Insurance Company of Canada v. Klimitz

In this auto insurance (SABS) case, Allstate Insurance Company of Canada v. Klimitz (Ont CA, 2015), the Court of Appeal upheld as reasonable a mediator's decision that a statutory limitation, running from the issuance of a statutorily-mandated notice, did not start to count until a medical report referred to in the Notice - but not included with it, was supplied:

[4] We agree, for the reasons given by the Divisional Court, that it was not unreasonable for the Director’s Delegate to conclude, in the circumstances of this case, that the two year limitation period did not start to run until the respondent had received a copy of Dr. Moddel’s report in satisfaction of Allstate’s obligation to give reasons for its determination under s. 37(1) of the Regulation, as it then read (now incorporated, in part, in s. 35(9)).[1]

. Tomec v. Economical Mutual Insurance Company

In Tomec v. Economical Mutual Insurance Company (Ont CA, 2019) the Court of Appeal commented extensively on whether the limitation concept of discoverability applies to the SABS ("Statutory Accident Benefits Schedule"), the administrative regime of auto insurance:

(b) Limitation Periods

[27] Our courts have recognized that the rule of discoverability may apply to limitation periods. Discoverability generally provides that a limitation period will not begin to run until the material facts on which the cause of action is based are known to the plaintiff or ought to have been known through the exercise of reasonable diligence. It is not a universal rule applicable to all limitation periods but a rule of construction to aid in interpreting limitation periods: Pioneer, at paras. 31 – 32.

[28] Both the LAT and the Divisional Court concluded that the applicable limitation period is a hard limitation period, i.e. a limitation to which the rule of discoverability does not apply.

[29] Section 281.1(1) of the Insurance Act, which has since been repealed, reads as follows: “A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.”

[30] At the material time, s. 51(1) of the SABS provided: “A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”[2]

(c) Application of Pioneer

[31] In Pioneer, which the Divisional Court did not have the benefit of, the Supreme Court provided guidance for determining when a limitation period is subject to the rule of discoverability and when it is a hard limitation period. Pioneer analyzed the cause of action found in s. 36 of the Competition Act, R.S.C. 1985, c. C-34. In that analysis, Brown J. made the following comments, at paras. 34-35:

First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire.

Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply. [Citations omitted.]

[32] Thus, the analysis is not focused on whether a limitation period is tied to a fixed event, as the Divisional Court opined. Rather, the question is whether the limitation period is related to the cause of action or the plaintiff’s knowledge.

[33] In Pioneer, Brown J. made this point by distinguishing Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, where the court considered the limitation period in the Survival of Actions Act, R.S.N.L., 1990, c. S-32, for a claim against an estate. That limitation period expires two years after the death of a potential defendant. Justice Brown stated that discoverability did not apply in Ryan, “because the action was ‘complete in all its elements’ before the operation of the event triggering the limitation period”: Pioneer, at para. 39. The limitation period was not dependent upon the accrual of the cause of action.[3] However, the court noted that had “the event triggering the limitation period been an element of the cause of action, or had it been required to occur before the cause of action could accrue, discoverability could apply” (emphasis in original): Pioneer, at para. 40.

[34] Economical submits that the refusal to pay a benefit referenced in s. 281.1(1) of the Insurance Act and s. 51(1) of the SABS is a specific event that is not tied to a cause of action. In support of this argument, counsel notes that in previous iterations of the Insurance Act, the limitation period ran from “the date on which the cause of action arose”.

[35] I would not give effect to this argument. It is contrary to the admonition from the Supreme Court in Pioneer at para. 36 that:

In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from ‘the accrual of the cause of action’, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury.

[36] The refusal to pay a benefit is clearly tied to the appellant’s cause of action. Absent a refusal to pay the benefit sought, there cannot be a claim made for mediation or an evaluation. Thus, the refusal to pay a benefit and the ability to make a claim are inextricably intertwined in the cause of action. The refusal cannot be stripped out of the cause of action and treated as if it is independent from it.

[37] This distinguishes the case at bar from the situations in Ryan and Levesque. In both those cases, the courts were considering limitation periods that were wholly independent from the cause of action. The commencement of the limitation period was tied to the date of the deceased’s death. In contrast, the applicable limitation period in this case is tied to the accrual of the cause of action.

[38] Economical submits that this case is distinguishable from Pioneer because of s. 19 of the Limitations Act, 2002, S.O. c. 24, Sched. B. That section specifically exempts s. 281.1(1) of the Insurance Act, among other limitation periods, from the operation of the Limitations Act, which codifies discoverability. Economical argues that s. 19 of the Limitations Act demonstrates that the legislature intended to exclude discoverability from applying to s. 281.1 of the Insurance Act.

[39] I am not persuaded by this submission. It is open to a legislature to exempt a limitation period from the discoverability rule. However, it must do so with clear legislative language: see Pioneer, at paras. 32 and 36. There is no such clear statutory text in the Limitations Act. Economical’s argument is premised entirely on an inference that counsel invites this court to draw. That does not meet the test of clear legislative intent.

[40] I note as well, that this court has stated that discoverability applies to the limitation period in the Libel and Slander Act, R.S.O. 1990, c. L12, s. 6: Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, 306 O.A.C. 155, at para. 42. This limitation period is also exempted by s. 19 of the Limitations Act. Therefore, inclusion under s. 19 of the Limitations Act does not automatically mean the rule of discoverability does not apply.

(d) Purposes of the SABS

[41] In Pioneer, after analyzing the law regarding discoverability and hard limitation periods, the court undertook a detailed analysis of the Competition Act. This included considering the statute’s purpose. A similar analysis of the SABS is instructive in understanding whether the limitation period in issue is intended to operate as a hard limitation period.

[42] Unlike the situation in Ryan and Levesque, the SABS contains both the limitation period and the statutory mechanisms designed to provide no-fault benefits. In Arts (Litigation Guardian of) v. State Farm Insurance Co., (2008) 2008 CanLII 25055 (ON SC), 91 O.R. (3d) 394 (S.C.), MacKinnon J. provided a compelling analysis of the SABS’ purposes and offered guidance regarding the interpretation of the SABS, at paras. 14 and 16:

The legislature's definition of "catastrophic impairment" is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive.

…

The SABS are remedial and constitute consumer protection legislation. As such, it is to be read in its entire context and in their ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial.

[43] The decisions below and Economical’s narrow interpretation of the limitation are incongruous with the SABS’ consumer protection purposes. The appellant falls within a small category of victims who suffer from lasting and very serious health impacts as result of a motor vehicle accident. The SABS is supposed to maximize benefits for that class of victims. A hard limitation period prevents the appellant from making a claim for the benefits the SABS are intended to provide. I do not see how such a result could be consistent with consumer protection legislation designed to provide fair compensation and minimize economic disruption in the lives of accident victims.

[44] The SABS is unlike the statutory regimes in Ryan and Levesque, which are aimed at creating finality in the context of claims against an estate. A hard limitation period is consistent with such regimes.

[45] Given the choice of a statutory interpretation that furthers the public policy objectives underlying the SABS and one that undermines it, the only reasonable decision is to side with the former.

(e) Absurd Result

[46] Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418, at para. 27.

[47] Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed any benefits until she obtained CAT status in 2015, she would not be caught by the limitation period: Machaj v. RBC General Insurance Company, 2016 ONCA 257, at para. 6. Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits.

[48] This outcome is absurd. There is no principled reason for barring the appellant’s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late.

[49] The impossible position a hard limitation places the appellant is best illustrated by having regard to Economical’s counsel’s oral submissions. Counsel denied that the appellant was put in a lose-lose situation. She argued that the appellant could have applied to the LAT before the expiry of the limitation period for a declaration that, in the future, she would be entitled to extended benefits if she were subsequently found to be CAT.

[50] I start by noting that courts must be cognizant of the significant disparity in resources between large insurance companies and their insureds, who do not have unlimited resources to bring multiple proceedings, including prophylactic claims based on a future contingency: see MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at para. 88, leave to appeal refused, [2016] S.C.C.A. No. 39.

[51] In any event, if such a proceeding were commenced for a declaration, it is difficult to imagine how it could succeed. At best, the appellant could only lead speculative evidence that she might be CAT at some unknown point in the future. Faced with that evidentiary record, the LAT would likely decline to make the requested declaration.

[52] In my view, the hard limitation period puts the appellant in an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result. To choose it, as the LAT did, is unreasonable.

(f) Policy Rationales for Limitation Periods

[53] Finally, it is worth considering the three policy rationales that underlie limitation periods to determine whether they support the finding of a hard limitation period. Those rationales are that limitation periods: (i) foster certainty; (ii) are intended to help prevent evidence from going stale; and (iii) encourage plaintiffs to be diligent in pursuing their claims: Pioneer at para. 47.

[54] None of those rationales support a finding of a hard limitation period in this case. There is little certainty achieved, since there is no limitation period for initially bringing benefits claims resulting from CAT status: Machaj, at para. 6. There is no risk of evidence going stale. To the contrary, a hard limitation period bars potentially meritorious claims based on current evidence. A hard limitation period will also not ensure the insured’s diligence in pursuing a claim, because the insured has no claim to pursue until a CAT designation is made.

(g) Unreasonable Decision

[55] In summary, it is unreasonable to construe the relevant limitation period as a hard limitation. There is a single reasonable interpretation of s. 281.1(1) of the Insurance Act and s. 51(1) of the SABS. The limitation period contained in those sections is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits. A hard limitation period is contrary to the purposes of the SABS and the Supreme Court’s guidance in Pioneer. In addition, a hard limitation period in these circumstances would lead to absurd results and is not consistent with the policy rationales that underlie limitation periods.