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The Court of Appeal held that defendants bear the burden of proving constructive knowledge for a limitations defence on summary judgment.
The appellant, Essex Condominium Corporation No. 125 (ECC 125), appealed a partial summary judgment that dismissed its claim for unpaid common expense fees against the respondents based on a limitations defence.
The Court of Appeal found that the motion judge erred by reversing the burden of proof on the issue of discoverability under the Limitations Act, incorrectly placing the onus on the plaintiff to disprove that its claim was statute-barred.
The Court clarified that the burden remains on the defendant to prove the claim was discoverable.
The appeal was allowed, setting aside the summary judgment, and directing the claim for unpaid common expense fees to proceed to trial.
Motion for leave to appeal denied with no order as to costs.
The defendants brought a motion for leave to appeal the order of Dubé J. dated October 11, 2023.
The Divisional Court denied the motion for leave to appeal with no order as to costs.
Summary judgment was granted dismissing claims for unpaid common fees and breach of oral contract, but a claim regarding an underfunded reserve fund will proceed to trial.
The defendants moved for summary judgment to dismiss the plaintiff condominium corporation's action, which included claims for unpaid common fees, an underfunded reserve fund, and breach of an oral contract regarding legal fees.
The court granted summary judgment dismissing the claims for unpaid common fees (due to being statute-barred under the Limitations Act) and the oral contract for legal fees (finding no binding agreement due to lack of consensus and consideration).
However, the motion for summary judgment was dismissed for the claim regarding the underfunded reserve fund, as the court found a genuine issue requiring a trial and confirmed the condominium corporation's standing to pursue this claim on behalf of unit-owners.
