COURT OF APPEAL FOR ONTARIO DATE: 20210204 DOCKET: C68272

Lauwers, Hourigan and Brown JJ.A.

BETWEEN

Albert Bloom Limited Plaintiff (Respondent)

and

London Transit Commission, 1571177 Ontario Limited, 1111846 Ontario Limited, Ramsden Industries Limited, Eaton Industries (Canada) Company and The Corporation of the City of London Defendants (Appellant / Respondent)

Counsel: Rosalind H. Cooper and Daniel Richer, for the appellant Robert Frank and Ted Brook, for the respondent

Heard: January 22, 2021, by video conference

On appeal from the order of Justice Alissa K. Mitchell of the Superior Court of Justice, dated March 6, 2020, with reasons reported at 2020 ONSC 1413.

Hourigan J.A.

I. Introduction

[1] The motion judge struck London Transit Commission’s (“LTC”) third party claim against Eaton Industries (Canada) Company (“Eaton”) on the basis that it is statute-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. LTC appeals that order. Its principal arguments are that the motion judge erred in her findings regarding when it had actual knowledge of the claim and when it should have had knowledge of the claim.

[2] I would not give effect to the grounds of appeal advanced by LTC. In comprehensive reasons, the motion judge explained her findings regarding when LTC knew or should have known about a claim against Eaton for contribution and indemnity and other related claims. With one inconsequential exception, I concur with those reasons. Accordingly, I would dismiss the appeal.

II. Facts

[3] The properties owned by the plaintiff, Albert Bloom Limited (“Albert Bloom”), LTC and Ramsden Industries Limited and its affiliated companies (“Ramsden”), are located in a semi-industrial/semi-residential area in London, Ontario. The LTC property is situated to the east of Albert Bloom’s property, and the Ramsden properties are located to the southwest of Albert Bloom’s property. The groundwater flow across this area is generally in a westerly direction, from the LTC property toward the Albert Bloom and Ramsden properties.

[4] The LTC property consists of three lots, being 17, 18 and 19 of Registered Plan 50. In 1949, the City of London conveyed lots 17 and 18 to Eaton’s corporate predecessor. While Eaton changed its name a number of times over the years, I will refer to all relevant corporate predecessors simply as Eaton. During the period 1949 to 1973, Eaton carried on the business of manufacturing automotive parts. In 1973, Eaton transferred lots 17 and 18 to the City of London. That same year, the City of London transferred title to LTC, and it has operated a transit system since that time.

[5] In March 2011, Albert Bloom notified Ramsden about the existence of Trichloroethylene (“TCE”) contamination on its property and provided Ramsden with two environmental reports from its environmental consultant. Ramsden investigated its properties and received a Phase II ESA Report from its environmental consultant identifying TCE contamination in concentrations above applicable standards. The report concluded that the LTC property was a potential source of the TCE contamination due in part to the westerly groundwater flow and historical automotive parts manufacturing operations carried out on the LTC property by Eaton.

[6] After receiving Ramsden’s Phase II ESA Report, Albert Bloom undertook further investigations. In November 2011, Albert Bloom’s environmental consultant issued a letter reporting that it had reviewed the data and agreed with Ramsden’s Phase II ESA Report that the LTC property was a potential source of the alleged contamination.

[7] On February 3, 2012, the lawyer for Albert Bloom advised LTC that it had discovered environmental contamination potentially migrating from LTC’s property to its client’s property. Albert Bloom provided the LTC with five environmental reports produced by two environmental consultants. Three of those reports identified Eaton, along with other potential sources, as being possibly responsible for the contamination.

[8] On April 30, 2013, Albert Bloom’s lawyer delivered a notice of action and statement of claim to LTC and provided the LTC with an additional environmental report from a third environmental consultant to support its claim. The statement of claim was formally served on LTC on May 22, 2013.

[9] On December 19, 2013, Albert Bloom provided LTC with an environmental report from a fourth environmental consultant supporting the claim against LTC.

[10] From 2012 to 2014, Albert Bloom repeatedly asked LTC to investigate its property. LTC refused to do so or to permit Albert Bloom to investigate.

[11] In January 2014, LTC filed its statement of defence and crossclaim. In that document, LTC denied responsibility for the alleged contamination and claimed over against its co-defendants. It further pleaded, in the alternative, that:

...if the [LTC property] in any way contributed to the alleged contamination of the [Albert Bloom property], which is not admitted but specifically denied, then it was caused by the prior owner of the [LTC property], the details of which LTC had no involvement in and has no knowledge of.

[12] Albert Bloom gave LTC an ultimatum in January 2014 to investigate its property, or it would contact the Ministry of the Environment and Climate Change (the “MOE”) regarding the alleged contamination. LTC maintained its refusal to investigate, refusing even to commission a non-intrusive Phase I ESA Report. Albert Bloom’s lawyer then contacted the MOE. It launched an investigation in the summer of 2014 and requested that LTC prepare a Phase I ESA Report concerning its property. The MOE also requested that LTC grant Albert Bloom access to its property to install monitoring wells to investigate the alleged contamination.

[13] Between December 2014 and March 2015, in response to MOE requests, LTC undertook testing on its property and determined that Eaton had operated a sludge pit on the property before 1973.

[14] On March 16, 2016, LTC commenced a third party claim against Eaton for damages and contribution and indemnity, alleging that Eaton had contaminated the LTC property between 1949 and 1973. Eaton moved for summary judgment, asserting that LTC's claim was statute-barred by operation of the Limitations Act.

[15] The motion judge granted summary judgment and dismissed LTC’s third party claim against Eaton. She concluded that LTC had actual knowledge of the matters in s. 5(1)(a) of the Limitations Act with respect to the claims against Eaton by no later than May 22, 2013.

[16] Despite finding that LTC had actual knowledge, the motion judge also considered the parties’ argument about when LTC ought to have known of the matters relating to its claim against Eaton. She concluded that LTC also ought to have known that it had a claim by May 22, 2013.

[17] According to the motion judge, the fact that LTC had asserted claims in nuisance and negligence against Eaton did not create separate causes of action with different limitation periods. She reasoned that LTC's claims all arose from the same alleged tortious conduct by Eaton before 1973.

III. Analysis

[18] On appeal, LTC principally relies on Crombie Property Holdings Limited v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, leave to appeal refused, [2017] S.C.C.A. No. 85, to argue that actual knowledge of the possibility of a claim does not equate to actual knowledge of a claim. LTC’s position is that its suspicion of a claim against Eaton was only confirmed by subsurface testing in March 2015.

[19] With respect to constructive knowledge, LTC argues that it acted diligently to retain an environmental consultant and legal counsel. It submits that it relied on its consultant’s opinion that the contamination was not spreading from the LTC property until later testing revealed this was an error. Further, it claims that its reference to a “prior owner” in its statement of defence and counterclaim was boilerplate language not denoting knowledge.

[20] LTC also submits that the motion judge erred in her analysis of the claims other than for contribution and indemnity. It argues that these additional claims are either continuing claims for which the limitation period has not expired or their limitation periods commenced on different dates than the claim for contribution and indemnity.

[21] This section of the reasons will briefly review the law regarding limitation periods in the context of claims for contribution and indemnity, then address the issues of actual and constructive knowledge, followed by a consideration of the other grounds of appeal.

(a) Claims for Contribution and Indemnity

[22] Claims for contribution and indemnity are governed by s. 18 of the Limitations Act, which provides:

18 (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer’s claim is based took place.

(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.

[23] An absolute two-year limitation period running from the date on which the first alleged wrongdoer was served with the claim is not established by s. 18. Instead, as described by Paciocco J.A. in Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, 141 O.R. (3d) 81, at para. 74, s. 18 operates as follows:

The two-year limitation period prescribed by ss. 4, 5(2), and 18 for contribution and indemnity claims presumptively begins on the date of service of a claim in respect of which contribution and indemnity is sought. That presumptive limitation period start date, however, can be rebutted by the discoverability principles prescribed in s. 5 of the Limitations Act, 2002.

[24] It is worth reiterating that once the second anniversary of the service of the claim passes, the onus shifts to the party seeking contribution and indemnity to establish why its claim was not discoverable. In the case at bar, as will be discussed, it appears, based on some of the arguments being advanced on the appeal, there was some confusion regarding who has the onus.

(b) Actual Knowledge

[25] The motion judge undertook an examination of the matters in s. 5(1)(a) of the Limitations Act. She found that LTC first knew that the injury or loss occurred and was caused or contributed by an act or omission on April 30, 2013, when it was provided with the issued notice of action and the statement of claim. According to the motion judge, the day on which LTC first knew that Eaton caused the loss or damage was February 3, 2012, when it was provided with environmental reports identifying the automotive manufacturing operations carried on by Eaton as a possible source of contamination. Further, she held that LTC learned that a proceeding against Eaton would be appropriate on May 22, 2013, when Albert Bloom’s statement of claim was formally served in the main action.

[26] LTC argues that the motion judge erred in her application of s. 5(1)(a) by distinguishing Crombie on a factual basis and equating knowledge that its property was a potential source of contamination with the knowledge that it was the source of the contamination. I would not give effect to these submissions.

[27] LTC’s argument on this issue is internally inconsistent. On the one hand, it submits that determining the date of actual knowledge of the matters in s. 5(1)(a) is a fact-specific exercise. On the other hand, it says that Crombie establishes a general rule that actual knowledge of contamination does not arise in environmental claims until subsurface testing has been carried out. I accept that the former submission is correct. The latter submission about a general rule being established is erroneous. It is necessary to review the facts of Crombie to understand why I reach this conclusion.

[28] The facts of Crombie are readily distinguishable from the case at bar. There the claim arose from the purchase by the plaintiff of a contaminated property. The acquisition was one of 22 properties acquired as part of a single commercial transaction. Regarding the property at issue, the most recent environmental information the plaintiff had at the time of the purchase was contained in a Phase I report (i.e., a non-invasive report) from an environmental consultant. The consultant completed a Phase I report for each of the 22 properties. In the report concerning the property in issue, the consultant reviewed historical environmental reports which had done soil and groundwater sampling. One of these reports concluded that the potential contamination was not “a significant environmental concern, and that no further environmental assessment was warranted.” Nevertheless, the consultant recommended a Phase II report to further evaluate soil and groundwater conditions. The plaintiff complied and pursued further testing. It commenced its action within two years of receiving the draft Phase II report that contained test results that showed that petroleum hydrocarbons in certain soil and groundwater samples exceeded MOE site condition standards.

[29] It was in this context that the court in Crombie stated, at para. 42, that “[t]he subsurface testing, while confirmatory of the appellant’s suspicions, was the mechanism by which the appellant acquired actual knowledge of the contamination.” LTC's submission that the court was establishing a single standard about when the limitation clock starts in environmental contamination claims is incorrect. The court did not purport to create such a general rule.

[30] A comparison of the facts of the case at bar to the facts of Crombie demonstrates why it is folly to try to establish a general rule as suggested by LTC. In this case, as of May 22, 2013, LTC had six off-site environmental reports from three different consultants. Those reports all identified LTC’s property as a potential source of contamination, and the manufacturing operations of Eaton’s predecessors were specifically referenced in four of these reports as an environmental concern. It was also known that the groundwater flowed in a westerly direction. Further, LTC was aware that Eaton operated an auto parts manufacturing facility on the site, and at the time of that operation, TCE was commonly used in the industry. Substratum testing was not necessary in these circumstances to establish actual knowledge of contamination.

[31] To be clear, the determination of when a claimant obtains actual knowledge of a claim is case-specific. Little is to be gained from comparing the unique circumstances of one case to another. There is no bright-line test that establishes when a party has actual knowledge of a claim. Instead, the totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the factual circumstances. The evidence she relied on was uncontested, and I do not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact.

[32] There is another unique circumstance in this case that supports the motion judge’s finding regarding actual knowledge. It is the plea in the statement of defence and crossclaim that the contamination was caused by a previous owner of the LTC property. That fact clearly distinguishes this case from Crombie, where there was no such plea.

[33] On the motion and this appeal, LTC attempts to explain away that pleading: it was just a “standard pleading” and did not reflect its actual state of knowledge at the time of the filing of the statement of defence and crossclaim. However, the evidence that counsel had informed the affiant in the affidavit filed by LTC that this was a standard pleading was double hearsay. Contrary to what the affiant stated in her affidavit, on cross-examination, she testified that she had never been provided with this information by LTC’s counsel. In fact, she had received the information from her predecessor at LTC, who apparently was told the information by legal counsel. This evidence was therefore inadmissible on the motion.

[34] LTC asserts, “[t]here was absolutely no evidence on the record before the Motions Judge to suggest that this pleading was other than a boilerplate pleading commonly set out in environmental defences without any factual knowledge attributable to LTC”: Factum, para. 27. This submission reflects a fundamental misunderstanding of the onus on the motion. LTC’s onus was not met by asserting that there was no evidence that this was not a boilerplate pleading. LTC had an obligation to adduce compelling and admissible evidence that it was boilerplate and thus could be ignored. It failed to adduce that evidence.

[35] On this record, I see no error in the motion judge’s conclusion regarding when LTC acquired actual knowledge of its claim.

(c) Constructive Knowledge

[36] The motion judge also found that LTC ought to have known that it had a claim against Eaton by May 22, 2013. This finding was based on a number of facts. First, LTC was in possession by February 2012 of environmental reports that identified its property as a potential source of contamination, some of which also indicated that Eaton operations were associated with TCE. Second, Eaton’s environmental consultant opined that the reports, taken together, contained sufficient information to identify the LTC property as a likely source of contamination. Third, LTC’s co-defendant, Ramsden, conducted a more diligent investigation immediately upon receipt of environmental reports from the plaintiff in 2011. Fourth, within months of launching its own investigation, LTC obtained results consistent with the results of the plaintiff’s and Ramsden’s consultants obtained years earlier. Fifth, LTC had information available to it as to the nature of the operations undertaken by its predecessors in title on the LTC property.

[37] Based on all of the above, the motion judge found that LTC did not act with the due diligence of the reasonable person with its abilities in this case’s circumstances. She emphasized that, unlike Ramsden, LTC refused to investigate the alleged contamination until it was directed to do so by the MOE in October 2014. The motion judge found that LTC was willfully blind and failed to take reasonable steps to investigate the available facts. LTC’s contention that it acted reasonably in not investigating because it was following its environmental consultant’s advice was rejected. Further, the motion judge observed that LTC knew their environmental consultant had done nothing more than review the reports provided and did not conduct an independent investigation.

[38] LTC does not dispute that it had a due diligence obligation to investigate its claim against Eaton in the circumstances of this case. This was a sensible concession, because it is well established in this court’s jurisprudence that when the due diligence obligation has been triggered, the party with the obligation (LTC) has a duty to investigate and the limitation period will not be tolled while it sits idle: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 42.

[39] The onus was on LTC to adduce admissible evidence that it took the necessary due diligence steps in the circumstances. It failed to do so. On the motion and this appeal, LTC asserts that it relied on the advice given by its environmental consultant. The motion judge found that the evidence regarding the advice constituted inadmissible hearsay and refused to give it any weight. There is nothing in LTC’s factum on the appeal that challenges that ruling. It is unclear what LTC expects this court to do about the motion judge’s rejection of this evidence. In any event, I see no error in the motion judge’s analysis on the point. Thus, in this court, as in the court below, there is no admissible evidence regarding the advice given to LTC by its environmental consultant.

[40] In her oral submissions, counsel for LTC submitted that regardless of the content of the advice received, the due diligence obligation was fully met by retaining counsel and environmental consultants. I do not accept that submission. The due diligence obligation imposes a heavier burden than simply hiring professional advisors. The proof of due diligence requires more detailed information than a simple assertion. The particulars of the information and advice provided to and by the consultant must be adduced to enable a court to assess whether the actions were reasonable in the circumstances. If the law were otherwise, a putative claimant could, for example, insulate itself from the operation of a limitation period by simply hiring a lawyer and then asserting solicitor-client privilege.

[41] LTC is also critical of the motion judge’s reliance on Ramsden’s activities in considering whether LTC acted reasonably. It argues that she erred in relying on Ramsden’s conduct because there is no evidence before the court about what motivated its decision to undertake testing. I disagree. The record established that Ramsden tested its property after it was contacted by Albert Bloom’s lawyer and that it shared the test results with Albert Bloom. It was a reasonable inference that Ramsden did the testing because of the information it received from Albert Bloom. If there was some other reason motivating Ramsden’s testing activities, LTC had the onus of putting that evidence before the court. LTC did not do so, and it is not open to it to rely on this alleged lacuna in the evidence.

[42] I note as well that LTC also cannot rely on the analysis in Crombie regarding constructive knowledge. In that case, this court found that in reaching her conclusion that the claim was discoverable, the motion judge ignored the plaintiff's particular circumstances, including its waiver of conditions in the commercial deal and the fact that the property sale in issue was part of a multi-property transaction. There is no basis in the case at bar to suggest that the motion judge ignored any relevant circumstances.

[43] In summary, the motion judge’s analysis on the issue of constructive knowledge is correct. LTC has failed to meet its onus of rebutting the s. 18 presumption.

(d) Ultimate Limitation Period

[44] In distinguishing Crombie at para. 65 of her reasons, the motion judge observed that any claim other than a claim by LTC against Eaton for contribution and indemnity was statute-barred by operation of the absolute limitation period of 15 years in the Limitations Act. As Eaton concedes, that was an error on the part of the motion judge. Section 17 of the Limitations Act provides that there is no limitation period for undiscovered environmental claims. LTC does not explicitly identify how this error detracts from the motion judge’s analysis. In my view, it is inconsequential.

(e) Section 99 of the Environmental Protection Act

[45] During the course of her oral argument, counsel for LTC stated that it has a claim against Eaton pursuant to s. 99 of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”). LTC submitted that the limitation period for this s. 99 claim had not expired when it commenced its third party claim.

[46] This argument was not raised before the motion judge and is found nowhere in LTC’s factum filed on this appeal. The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party on appeal when evidence might have been led in the court below had it been known that the matter would be an issue on appeal. The burden is on the appellant advancing a new argument to persuade the court that the new issue should be heard. Ultimately, the decision of whether to grant leave to allow a new argument is a discretionary decision guided by balancing the interests of justice as they affect all parties: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Vellenga v. Boersma, 2020 ONCA 537, 152 O.R. (3d) 305, at paras. 42-43.

[47] I do not believe that it is in the interests of justice to consider this new argument on this appeal. This court is primarily an error-correcting court. Absent compelling reasons, it will not consider new arguments raised for the first time on appeal. No compelling reasons are evident in this case. Further, entertaining this argument would unfairly deprive Eaton of the opportunity to respond in the court below and in its written arguments before this court.

[48] In any event, I am not satisfied that LTC asserted a claim under s.99 of the EPA. If LTC really intended to make an s. 99 claim, then it would have set the claim out in detail in its third party pleading. Counsel for LTC, who did not draft the third party claim, points to the general plea relying on the EPA. She admits that there is no plea regarding s. 99 specifically, but submits that the general reference to the statue can only be interpreted as being an s. 99 claim. This argument does not persuade me. The purpose of pleadings is to define issues and put all parties on notice regarding the precise subject matter of a proceeding. The oblique reference to the EPA does not fulfill the purpose of asserting an s. 99 claim. Further, there is nothing in LTC's factum on the appeal that suggests that it has an s. 99 claim.

(f) Continuing Tort

[49] LTC also argues that the motion judge erred when she concluded that the third party claim against Eaton was not founded on a continuing tort. It submits that “LTC’s Third Party Claim, like the Main Action, is based on a continuing cause of action and a new cause of action arises each day that there is a continuing tort (i.e. ongoing migration of contamination).” In other words, because the main action purportedly alleges that LTC’s property continues to damage its neighbour’s property through ongoing contaminant migration, Eaton is engaged in a continuous tort against LTC.

[50] This position mischaracterizes the nature of LTC’s claim against Eaton. LTC’s claim against Eaton is that of a current property owner against a former property owner. Even if LTC’s property continued releasing contaminants onto its neighbour’s property, such that LTC was committing a continuous tort relative to its neighbours, that would not establish that Eaton has engaged in a continuous tort relative to LTC. As Epstein J., as she then was, explained in Starline Entertainment Centre Inc. v. Ciccarelli, (1995) 25 O.R. (3d) 765 (S.C), at p. 31, “a continuing tort does not include continuance of all the effects or repercussions of the defendant’s conduct. It has been explained as ‘the continuance of the act which caused the damage.’” For a claim to be “continuing”, the legal injury itself must continue, not merely the ill effect of the prior legal injury: RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, 19 Alta. L.R. (6th) 195, at para. 18.

[51] In LTC’s third party claim, the legal injury or act that allegedly caused the damage to LTC was Eaton’s manufacturing activities and improper waste management practices, which ended in 1973. In the main claim against LTC, the legal injury or act that allegedly damaged the plaintiff was LTC allowing contaminants on its property to spread and damage neighbouring properties. The fact that the latter action may amount to a continuing tort does not transform LTC’s claim against Eaton into a continuous tort.

[52] The primary case relied on by the respondent, Roberts v. City of Portage la Prairie, [1971] S.C.R. 481, is distinguishable and supports this conclusion. In that case, the city constructed and continued to operate a sewage lagoon, which proved to be a nuisance. No similar continued operation of a tortious activity is alleged against Eaton.

(g) Standalone Claims

[53] LTC submits that the motion judge erred in rejecting its submission that it had so-called standalone claims that were not statute-barred.

[54] LTC offers two reasons why these standalone claims are not statute-barred. First, it submits that one of its claims was more recently discovered. Second, it asserts it has a continuous tort claim against Eaton as its former neighbour on lot 19.

[55] The recently discovered claim is for reimbursement of expenses related to investigative work required by the MOE for other properties in the area. LTC argues that it could not have known about this claim until March 27, 2015, when it was requested to do the work by the MOE. Therefore, it submits that the limitation period for the claim for these expenses could not begin to run until that date.

[56] The problem with this submission is that it conflates the concept of “damage,” being the loss required to make out certain causes of action, with the concept of “damages,” which is the monetary measure of the extent of the loss: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 290 O.A.C. 42, at para. 54. All LTC had to discover to start the limitation period was damage caused by Eaton’s manufacturing operations and waste management practices. As the Supreme Court held in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 18, the accrual of a cause of action does not await a full understanding of the extent or type of damage. See also Hamilton, at para. 61 and Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 35.

[57] Further, regarding the claim for investigative costs, I note that in its statement of defence and crossclaim, LTC expressly pleads a claim for damages related to “expenses relating to the investigation, testing, monitoring and remediation of the contamination.” Clearly, as of January 2014, LTC knew it had a claim for expenses relating to investigative work, although it did not know the exact details of those expenses.

[58] There is a final standalone claim that must be considered. LTC pleads in the third party claim that “[c]ontamination migrated from one of Lots 17, 18 and 19 to the other Lots.” Based on this plea, LTC submits that it has continuing causes of action in nuisance and negligence against Eaton (the former owner of lots 17 and 18) as a neighbour (the owner of lot 19). I would reject this argument for two reasons.

[59] First, this submission was not raised in the court below, in LTC’s factum filed on the appeal, or in LTC’s counsel’s initial oral submissions. It was raised for the first time when counsel for LTC was making her reply submissions. Thus, in addition to the concerns discussed above regarding new arguments raised on appeal, we have the added problem that counsel for Eaton has had no opportunity to respond to this argument.

[60] Second, assuming without deciding that such a claim could be asserted in these circumstances, there is no suggestion in the third party pleading that the migration is continuing. On the contrary, in the paragraphs that reference migration between lots, the migration is referred to in the past tense. There is no reference to continuing migration between lots. Thus, this is not alleged to be a continuing tort. Accordingly, the limitation period expired on the second anniversary of the date on which LTC knew or ought to have known of the matters in s. 5(1)(a). For the reasons outlined above, I agree with the motion judge that the third party claim was issued more than two years after the date of LTC’s actual or constructive knowledge of a claim against Eaton.

IV. Disposition

[61] I would dismiss the appeal and order that the appellant, LTC, pay Eaton its costs of the appeal in the agreed-upon, all-inclusive sum of $25,000.

Released: “P.L.” February 4, 2021 “C.W. Hourigan J.A.” “I agree. P. Lauwers J.A.” “I agree. David Brown J.A.”