Daniel Zacks

The respondents purchased a property in 2021 and discovered significant foundation defects in a dwelling constructed between 1986 and 1987.

They sued the appellant municipality in 2022 for negligent supervision of the construction.

The motion judge dismissed the municipality's summary judgment motion, finding that the municipality had an ongoing duty to monitor the open building permit, which constituted a continuous omission tolling the 15-year ultimate limitation period under s. 15(6)(a) of the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that a continuous act or omission requires successive or repetitive actionable conduct, which was absent here.

The claim was therefore statute-barred by the ultimate limitation period.

The Court also noted the motion judge erred in recognizing a novel duty to monitor without conducting an Anns/Cooper analysis.

The court dismissed two actions by will beneficiaries against the drafting lawyer for negligence, holding that the claims were statute-barred by the 15-year ultimate limitation period in section 15(2) of the Limitations Act, 2002.

The court found that the limitation period began to run from the date of the negligent drafting, not the testator’s death, and that no statutory or common law exception applied.

The court also addressed the application of the Trustee Act and concluded that the two-year limitation period for estate claims did not revive or extend the beneficiaries’ claims.

The Township of McMurrich Monteith brought a motion for summary judgment seeking to dismiss a negligence claim by the plaintiffs, William and Emily Huether, on the grounds that the limitation period had expired.

The plaintiffs alleged the Township was negligent for failing to continuously monitor an open building permit file and conduct necessary inspections for a house built in 1986, whose foundation was failing.

The Township argued its duty ended with construction or permit closure in 1988, making the claim statute-barred under the Limitations Act, 2002.

The court found that the Township had a continuous duty to monitor its open permit file until the building was substantially complete and met occupancy conditions, which never occurred.

Therefore, the ultimate limitation period under s. 15(2) of the Limitations Act did not apply, and s. 15(6) for continuous omissions applied.

The Township's motion for summary judgment was dismissed, and costs were awarded to the plaintiffs.

This solicitor negligence action involved a motion brought by the self-represented plaintiff seeking orders for production of a former lawyer's file and retainer agreements, further particulars of the statement of defence, and a stay of proceedings pending review of a prior order removing the defendants as counsel.

The court dismissed all requested relief, finding the production requests premature and the particulars unnecessary as they sought evidence rather than material facts.

The request for a stay was also denied as premature.

The court imposed a modified discovery plan proposed by the defendants.

The defendants, an appraisal service, brought a summary judgment motion to dismiss a negligence action by the plaintiff mortgage financing company, MCAP, on the basis that the action was commenced beyond the applicable limitation period.

MCAP alleged that the defendants negligently overvalued a property in a 2012 appraisal, leading to a loss on a 2013 mortgage loan.

The court found that MCAP had sufficient knowledge to discover its claim by June 15, 2016, or at the latest, September 6, 2016, when it received various post-default valuations and opinions questioning the original appraisal's accuracy.

The court rejected MCAP's argument that its internal protocol justified delaying discovery until the property sale was complete or a retrospective valuation was obtained.

The motion for summary judgment was granted, and the action was dismissed as statute-barred.

This is an appeal concerning the application of limitation periods to tort claims, including sexual assault, against a police officer.

The motion judge had dismissed the appellant's motions to strike and for summary judgment, finding that the sexual assault allegations triggered s. 16(1)(h) of the Limitations Act, 2002, and that s. 16(1.3) extended this to related torts due to the officer's position of trust.

The Court of Appeal upheld the motion judge's decision regarding the application of s. 16(1.3) to claims against the perpetrator and related torts, but set aside the declaration that no limitation period applied to all claims, stating this ultimate determination should be left to the trial judge.

The appeal regarding costs was dismissed, affirming the motion judge's award.

The appellant, Gordon Dunk Farms Ltd., appealed a summary judgment decision that found its action for negligence and breach of contract against the respondents (designers, contractors, and concrete workers) was statute-barred due to the expiration of the limitation period.

The action stemmed from the collapse of a hog barn.

The motion judge found that the appellant's principals knew or ought to have known the material facts constituting their claim by May 12, 2014, more than two years before the action was commenced on May 24, 2016.

The Court of Appeal affirmed that a "claim" under the Limitations Act, 2002, does not require knowledge of every specific act or omission, but rather sufficient facts to draw a plausible inference of liability.

The appeal was dismissed, confirming the action was statute-barred against all respondents.

The defendant insurer moved for summary judgment to dismiss the plaintiff's action, arguing it was brought outside the one-year limitation period set out in the Insurance Act and the standard automobile insurance policy.

The plaintiff argued the claim was not for breach of contract, but for breach of the insurer's independent duty of good faith, which is subject to the basic two-year limitation period.

The court dismissed the motion, finding that based on the pleadings, the bad faith claim is separate and distinct from a claim under the insurance contract, and therefore falls outside the one-year limitation period.

The defendant, Recipe Unlimited Corporation, moved to strike the plaintiff's (Angus Inc.) Statement of Claim under Rule 21.01(1)(b), alleging failure to plead material facts for claims of inducing breach of contract, intentional interference with economic relations, and "misrepresentation in the marketplace." The court dismissed the motion regarding inducing breach of contract and intentional interference, finding the pleadings sufficient.

However, the claim for "misrepresentation in the marketplace," interpreted as injurious falsehood, was struck with leave to amend due to insufficient particulars of malice and intent to induce non-dealing.

The plaintiffs and the defendant police officer provided written submissions on costs following the plaintiffs' successful motion for leave to amend their statement of claim.

The defendant argued the plaintiffs' submissions were late, but the court found them timely under the Rules of Civil Procedure as the deadline fell on a weekend.

Although the plaintiffs were successful on the motion, the court expressed concern over the timing of the new, more serious allegations of battery and sexual assault, which the defendant argued were an attempt to circumvent the Limitations Act.

Consequently, the court declined to award costs immediately to the successful plaintiffs, instead fixing costs at $6,500 payable in the cause.

The plaintiffs brought a motion for leave to amend their statement of claim to add causes of action for battery and sexual assault, and sought a publication ban to protect their identities.

The defendant police officer opposed the timing of the amendment, arguing his outstanding summary judgment motion should be heard first, and sought costs thrown away.

The court granted the plaintiffs' motion to amend immediately, finding no non-compensable prejudice, and ordered a publication ban due to the sexual nature of the allegations.

The court also awarded the defendant $2,000 in costs thrown away for the need to redraft his pleadings.

An appeal from a trial judgment in which the trial judge found that an employee, who held the position of Assistant Vice President of Campus Services and Building Operations, had misappropriated nearly one million dollars from York University through various fraudulent schemes between 2007 and 2009.

The employee was terminated without cause and paid a severance package of $696,166 with mutual releases after vehemently denying any wrongdoing.

York subsequently discovered the full extent of the misconduct and sued to rescind the severance agreement and recover the stolen funds.

The trial judge found that the employee had fraudulently misrepresented his innocence and that the claim was not barred by the limitations period.

The appeal was dismissed.

The appellant sought leave to amend his statement of claim to correct a misnomer by substituting the proper defendant after the expiry of the limitation period.

The motion judge refused the amendment.

The Court of Appeal allowed the appeal, finding that the appellant satisfied the "litigation finger test" for misnomer established in Lloyd v. Clark.

The appellant knew the proper defendant but failed to sue the proper party, and the intended defendant knew it was the intended defendant before the limitation period expired.

The court granted leave to amend and awarded costs.

A realtor appealed a motion judge's decision dismissing a summary judgment motion in a negligence and improvident sale claim.

The key issue was when a two-year contractual limitation period commenced: at the time the Agreement of Purchase and Sale was signed or at closing.

The motion judge found the limitation period began at closing because no damage occurred prior to that time.

The Court of Appeal upheld this decision, holding that while negligent acts may have occurred before the agreement was signed, damage is an essential element of negligence and did not accrue until title transferred at closing.

The appellant appealed a summary judgment dismissing his action for a declaration that his daughter holds assets in a numbered company in trust for him.

The motion judge had characterized the claim as involving a resulting trust and found it statute-barred.

The Court of Appeal allowed the appeal, finding that no limitation period applies to claims against a trustee of a resulting trust for property still in the trustee's possession.

The court also found it appropriate to entertain the appellant's new argument on appeal, as it raised a pure question of law and the record provided a complete evidentiary basis for determination.

York University sought security for costs of an appeal brought by Michael Markicevic, who was found at trial to have defrauded York of over $1.8 million and made fraudulent conveyances of property.

Markicevic appealed on two grounds: the validity of a mutual release signed upon his termination and whether York's claims were statute-barred.

The motion judge ordered security for costs of $75,000 under Rule 61.06(1)(c), finding that while the appeal was not frivolous and vexatious, the unchallenged findings of fraud and asset dissipation constituted compelling "other good reason" to order security despite Markicevic's impecuniosity.

The estate of a deceased tenant brought an action in Superior Court for $500,000 in damages for injuries suffered when the deceased allegedly slipped and fell over a damaged carpet in a residential rental unit.

The motion judge dismissed the action, concluding the Superior Court lacked jurisdiction because the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board and was outside the one-year limitation period prescribed under the Residential Tenancies Act, 2006.

The Court of Appeal allowed the appeal, holding that the Act does not grant the board exclusive jurisdiction over all claims of non-repair.

Where damages exceed the board's monetary jurisdiction, a party may commence proceedings in Superior Court.

Additionally, the one-year limitation period for board applications does not apply to Superior Court actions for non-repair; instead, the two-year limitation period under the Limitations Act, 2002 applies.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action claiming ownership of a family corporation on the basis that it was statute-barred.

The plaintiff argued that the limitation period was suspended under s. 7 of the Limitations Act, 2002 due to his mental incapacity.

The court found that the plaintiff knew or ought to have known the material facts of his claim for a resulting trust by 2002, when he began demanding the corporation back.

As the claim was discovered well before the action was commenced in 2012, the action was statute-barred and dismissed.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.