The appellant appealed a summary judgment dismissing its action as statute-barred under the Limitations Act, 2002.
The action, assigned from a bankrupt estate, alleged negligence and breach of fiduciary duty by the former bankruptcy trustee and its representative.
The Court of Appeal found that the motion judge erred by reversing the onus of proof regarding discoverability and by failing to consider s. 12 of the Limitations Act, which applies to assigned claims in bankruptcy.
The court held that the limitation period analysis must account for the dual roles of the creditor as an inspector and the need to obtain court orders (s. 38 and s. 215 BIA) before commencing action against a trustee.
The appeal was allowed, the dismissal set aside, and the limitation period issue was directed to proceed to trial.
