In this recent decision before the Ontario Court of Appeal, the plaintiff was seeking to delay the start of a limitation period because the Defendant supplier was trying to fix faulty generators supplied to the Plaintiff. This would involve the application of section 5(1)(a)(iv) of the Limitations Act, 2002: the entire section reads as follows:
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).
Summarily, the Plaintiff argued that because the Defendant was trying to repair the situation, it wasn’t readily known to them that a lawsuit was an “appropriate means” to seek a remedy: indeed, a lawsuit may not be necessary if the Defendant was able to successfully rectify the problems.
Although the argument is sound, the Plaintiff’s claim was still dismissed because their claim was brought too late. Why? Because the plaintiff’s knowledge and expertise played a critical role in the outcome.
The appellate court held that section 5(a)(iv) requires both a subjective and objective review because of section 5(b). Specifically, the appellate court said “… the test is not wholly subjective; s. 5(1)(b) of the Limitations Act, 2002 establishes a “modified objective” test that requires consideration of what a reasonable person with the abilities and in the circumstances of the claimant ought to have known.”
In this case, the Plaintiff was not wholly dependent on the Defendant’s expertise. Indeed, the Plaintiff corporation was being run by an expert in the field, and the court held that the Plaintiff ought to have known much earlier that the generator’s supplied by the Defendant were faulty and could not be repaired or modified to work at the required specifications no matter how much time, effort and energy was spent by the Defendant to repair them. For that reason, the limitation period was not extended to a point that could save the claim from being summarily dismissed on the grounds that it was brought out of time.
It is more than likely that the result would have been very different had the Plaintiff been a novice and completely dependent on the expertise of the Defendant, since in this situation the Plaintiff would be completely unaware that the generators couldn’t be salvaged through ameliorative efforts by the supplier until the supplier formally gave up.
Amelin Engineering Ltd. v. Blower Engineering Inc., 2022 ONCA 785
https://www.canlii.org/en/on/onca/doc/2022/2022onca785/2022onca785.html