Hughes v. Dyck; Wellington West Capital Inc. et al.,Third Parties
[Indexed as: Hughes v. Dyck]
Ontario Reports
Ontario Superior Court of Justice,
Pierce J.
February 4, 2016
129 O.R. (3d) 495 | 2016 ONSC 901
Case Summary
Limitations — Discoverability — Contribution and indemnity — Principles of discoverability not applying to claim for contribution and indemnity under s. 18(1) of Limitations Act — Limitation period for plaintiff's third party claim for contribution and indemnity starting to run on date defendant served counterclaim — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 18(1). @OThe plaintiff and the defendant entered into a partnership agreement in October 2009, while they were employed as financial and insurance advisors by the third parties, in order to pool their clients and share in the profits. The defendant's employer suspended his licence as an investment dealer in December 2009, and the industry's governing body suspended his licence in March 2012 for misconduct. The plaintiff sued the defendant in February 2012 for the return of moneys paid under the partnership agreement, and the defendant counterclaimed for damages for breaches of that agreement. The counterclaim was served on May 19, 2012. The plaintiff issued a third party claim for contribution and indemnity on July 31, 2015, arguing that the third parties knew about the defendant's misconduct before the plaintiff entered into the partnership agreement and that they allowed the defendant to continue his misconduct while assuring the plaintiff that the defendant was in compliance with the industry's regulations. The plaintiff alleged that he only became aware of the facts underlying the third party claim when certain documents were disclosed to him in a separate action which he had commenced against the Wellington third parties in British Columbia. The third parties brought a motion for summary judgment dismissing the claim for contribution and indemnity on the ground that the claim was statute-barred. @OHeld, the motion should be granted. @OThe principles of discoverability do not apply to claims for contribution and indemnity under s. 18(1) of the Limitations Act, 2002. The limitation period started to run when the counterclaim was served on May 19, 2012. The third party claim was statute-barred. @OEven if discoverability principles applied to the third party claim, the record showed that the existence of a claim against the third parties was not only discoverable before the expiry of the limitation period, it was actually discovered. The plaintiff could not wait until he had acquired certain knowledge of the third parties' wrongdoing before commencing a third party claim. The limitation period started to run when he became aware of prima facie grounds supporting a claim. @ODemide v. Canada (Attorney General), [2015] O.J. No. 2611, 2015 ONSC 3000, 50 C.C.L.I. (5th) 74, 47 C.L.R. (4th) 126, 254 A.C.W.S. (3d) 692 (S.C.J.); Miaskowski v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.), consd @MOther cases referred to @VBoutz v. DTE Industries Ltd., [2013] O.J. No. 5304, 2013 ONSC 7085 (S.C.J.); Canaccord Capital Corp. v. Roscoe (2013), 115 O.R. (3d) 641, [2013] O.J. No. 2643, 2013 ONCA 378, 306 O.A.C. 382, 9 C.C.E.L. (4th) 26, 363 D.L.R. (4th) 182, 228 A.C.W.S. (3d) 252; [page496] Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Lilydale Cooperative Ltd. v. Meyn Canada Inc., [2010] O.J. No. 3142, 2010 ONSC 4114, 191 A.C.W.S. (3d) 857 (S.C.J.); Lochner v. Toronto (City) Police Services Board (2015), 128 O.R. (3d) 318, [2015] O.J. No. 4795, 2015 ONCA 626; Placzek v. Green, [2009] O.J. No. 326, 2009 ONCA 83, 307 D.L.R. (4th) 441, 69 C.P.C. (6th) 42, 245 O.A.C. 220; Scotia Mortgage Corp. v. Chmielewski, [2013] O.J. No. 524, 2013 ONSC 856, [2013] I.L.R. I-5389 (S.C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 5815, 2014 ONCA 878, affg [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.); Waterloo Region District School Board v. CRD Construction Ltd. (2010), 103 O.R. (3d) 81, [2010] O.J. No. 5358, 2010 ONCA 838, 271 O.A.C. 142, 97 C.L.R. (3d) 274, 327 D.L.R. (4th) 611, 100 C.P.C. (6th) 1, 313 D.L.R. (4th) 82, 196 A.C.W.S. (3d) 257; Welch v. Peel Standard Condominium Corp. No. 755, [2013] O.J. No. 5669, 2013 ONSC 7611 (S.C.J.) @MStatutes referred to @VLimitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5 [as am.], (2), 15 [as am.], 18, (1) @MRules and regulations referred to @VRules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 @NMOTION for summary judgment dismissing a third party claim.
D. Matson, for plaintiff/defendant by counterclaim (responding party).
No one appearing for defendant Terry Dyck.
H.M. Rosenberg, for third parties Wellington West Capital Inc., Wellington West Holdings Inc. and National Bank Financial Inc. (moving parties).
PIERCE J.: —
Introduction
[1] The third parties seek summary judgment, dismissing the plaintiff's claim against them for contribution and indemnity on the grounds that the claim is statute-barred. The third parties argue that the plaintiff's claims were not only discoverable but discovered within the limitation period. The plaintiff counters that new allegations were actually discovered after the third party disclosed its documents, in September 2013.
[2] In order to decide the motion, the court must interpret the scope of ss. 4, 5 and 18 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The case law interpreting these sections of the Limitations Act, as they apply to contribution and indemnity, conflicts and calls out for appellate review. [page497]
The Test for Summary Judgment
[3] The jurisdiction of the court to order summary judgment is found in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as interpreted by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7. The purpose of the summary judgment rule is dispose of claims for which there is no genuine issue requiring a trial.
[4] In determining whether to grant summary judgment, the court must consider whether the evidence before it is sufficient to dispose of the issue. The court is empowered to weigh evidence, evaluate credibility and draw inferences as part of the process.
[5] In Sweda Farms Ltd. v. Egg Farmers of Ontario,
[2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.), para. 33, affd at
[2014] O.J. No. 5815, 2014 ONCA 878, Mr. Justice Corbett
described the following analytical process the court should take
on a motion for summary judgment:
@L04,08,001) The court will assume that the parties have placed
before it, in some form, all of the evidence that will be
available for trial;
@L04,08,002) On the basis of this record, the court decides
whether it can make the necessary findings of fact, apply the
law to the facts, and thereby achieve a fair and just
adjudication of the case on the merits;
@L04,08,003) If the court cannot grant judgment on the motion,
the court should:
@L08,12,00a. Decide those issues that can be decided in
accordance with the principles described in 2), above;
@L08,12,00b. Identify the additional steps that will be required
to complete the record to enable the court to decide any
remaining issues;
@L08,12,00c. In the absence of compelling reasons to the
contrary, the court should seize itself of the further steps
required to bring the matter to a conclusion.
The Allegations
[6] Plaintiff's counsel, Mr. Matson, is new to the file; he did not draft the pleadings that are the subject of this motion.
[7] The allegations as set out in the pleadings are as follows.
[8] The plaintiff, Mr. Hughes, and the defendant, Mr. Dyck, were financial and insurance advisors employed by the third parties. The plaintiff was employed by the third parties between August 2008 and May 26, 2010, when his employment was terminated.
[9] On October 23, 2009, Hughes and Dyck entered into a partnership agreement in order to pool their client lists and [page498] share in the profits. The plaintiff paid the defendant the sum of $200,000 to acquire an interest in his much larger client list.
[10] On December 15, 2009, the employer suspended the defendant's licence as an investment dealer for breach of his employment contract. The defendant continued as a marketing consultant until the employer terminated his employment on February 15, 2010.
[11] The Investment Industry Regulatory Organization of Canada investigated the defendant. In March 2012, the defendant was disciplined by that body, which suspended his licence for seven years and fined him $20,000. These events led to a flurry of litigation.
[12] On February 15, 2012, the plaintiff sued the defendant, claiming return of the $200,000 paid under the partnership agreement. The defendant sued the plaintiff in Ontario on February 14, 2012, alleging breaches of their partnership agreement and consequent losses. Mr. Dyck's amended claim (in respect of which the plaintiff seeks contribution and indemnity) was filed on February 14, 2012. Having reviewed the statement of defence which responds to the amended statement of claim, I conclude that the amended statement of claim was served on May 19, 2012, and that service is proven.
[13] The third parties submit that, pursuant to s. 18 of the Limitations Act, the two-year limitation period starts to run from May 19, 2012. In other words, the third parties submit that the plaintiff's claim for contribution and indemnity must be served by May 19, 2014.
[14] On May 23, 2012, the plaintiff sued the Wellington third parties in British Columbia Provincial Court, alleging wrongful dismissal. The claim also alleged that the Wellington defendants knew or ought to have known that Dyck was acting outside the governing regulations and that they breached their fiduciary duty to him by not disclosing it. This claim was amended and transferred to the Supreme Court of British Columbia on November 23, 2012.
[15] Then, on May 25, 2012, the plaintiff launched a virtually identical claim against the Wellington third parties in the Ontario Superior Court. On January 11, 2013, the plaintiff discontinued his Ontario claim, prior to service, leaving the action in British Columbia to proceed.
[16] The plaintiff alleges that, on September 13, 2013, he discovered that the third parties knew that the defendant was in contravention of his employment agreement and the industry's regulations but did not disclose these facts to the plaintiff before he entered into a partnership agreement with the defendant, [page499] even though they knew that an agreement was being discussed. He maintains that he discovered these facts when certain documents were disclosed to him in the B.C. action.
[17] The plaintiff issued his third party claim on July 31, 2015, claiming contribution and indemnity from the third parties in this action. In the third party claim, the plaintiff submits that he added to the allegations already pleaded by alleging that not only did the third parties know about the defendant's misconduct, that they knew about it before the plaintiff entered into the partnership agreement with the defendant. He also pleads that the third parties allowed the defendant to continue his misconduct, while assuring him that the defendant was in compliance with the industry's regulations. The third party claim seeks contribution and indemnity only if the plaintiff is liable to the defendant on his counterclaim.
The Arguments
[18] Counsel framed the issues applicable to this motion as
follows:
@L00,04,00(1) whether s. 18 of the Limitations Act
constitutes a true deeming provision with respect to limitations
on claims for contribution and indemnity or imposes a rebuttable
presumption of discovery in conjunction with s. 5 of the Act;
@L00,04,00(2) whether the record presents any evidence on
discoverability; and, if so,
@L00,04,00(3) when the plaintiff's claims were actually
discovered.
[19] The basic limitation period under the Limitations Act,
2002 is two years. Section 4 of the Act provides:
@E4. Unless this Act provides otherwise, a proceeding shall not
be commenced in respect of a claim after the second anniversary
of the day on which the claim was discovered.
[20] The basic limitation period is qualified by s. 5, which
deals with discovery of a claim. It states:
@E5(1) A claim is discovered on the earlier of,
@L01,12,00(a) the day on which the person with the claim
first knew,
@L12,16,00(i) that the injury, loss or damage had occurred,
@L11,16,00(ii) that the injury, loss or damage was caused by or
contributed to by an act or omission, [page500]
@L10,16,00(iii) that the act or omission was that of the person
against whom the claim is made, and
@L11,16,00(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
@L01,12,00(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).
@E(2) A person with a claim shall be presumed to have known of
the matters referred to in clause (1)(a) on the day the
act or omission on which the claim is based took place, unless
the contrary is proved.
[21] Section 18 deals with claims for contribution and
indemnity, regardless of whether the claim arises from a tort or
otherwise. It states:
@E18(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.
[22] The ultimate limitation period is prescribed by s. 15 of
the Act. It states:
@E15(1) Even if the limitation period established by any other
section of this Act in respect of a claim has not expired, no
proceeding shall be commenced in respect of the claim after the
expiry of a limitation period established by this section.
@E(2) No proceeding shall be commenced in respect of any claim
after the 15th anniversary of the day on which the act or
omission on which the claim is based took place.
[23] There are two competing lines of authority with respect to the interpretation of s. 18; both originate in the Superior Court of Justice. The third parties argue that the leading authority in interpreting s. 18 is Mr. Justice Perell's decision in Miaskowski v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.). In Miaskowski, Perell J. held that the deeming provision in s. 18 constitutes an absolute two-year limitation that is not subject to the discoverability provisions in s. 5 of the Act.
[24] The plaintiff counters that Madam Justice Leach's decision in Demide v. Canada (Attorney General), [2015] O.J. No. 2611, 2015 ONSC 3000 (S.C.J.) should apply in this case. In Demide, Leach J. determined in obiter that s. 18 must be read in conjunction with the discoverability provisions in s. 5, creating a rebuttable presumption of discoverability in s. 18.
[25] The two competing decisions bear close reading. In Miaskowski, at paras. 84 and 85, Perell J. concedes that [page501] Mr. Justice Sharpe's obiter comments in Canaccord Capital Corp. v. Roscoe (2013), 115 O.R. (3d) 641, [2013] O.J. No. 2643, 2013 ONCA 378 do not directly consider whether the discoverability principle applies to s. 18 of the Act. However, he adopts the "tenor or spirit" of Justice Sharpe's remarks.
[26] After reviewing the legislative history of s. 18, Justice
Sharpe observed, at para. 24 of the judgment:
@EIn my view, the departure from the 1948 model to embrace
"wrongdoers", not just tortfeasors, and to cover claims that
arise "in respect of a tort or otherwise" represented a
conscious decision to expand the scope of the provision beyond
the tort context to include claims like the one at issue in this
case. This is consistent with the often-repeated goal of
creating a clear, cohesive scheme for addressing limitation
issues. As mentioned, the purpose of the Act is to balance the
plaintiff's right to sue with the defendant's need for certainty
and finality. Carving out exceptions to the general rule in s.
18 for certain types of claims in contribution and indemnity
would undercut that purpose. It would expose defendants from
whom contribution and indemnity is sought to unpredictable
limitation periods, undermining the defendant's ability to
defend the claim.
[27] At para. 88 of Miaskowski, Mr. Justice Perell also
considered the decision of the Court of Appeal in Waterloo
Region District School Board v. CRD Construction Ltd.
(2010), 103 O.R. (3d) 81, [2010] O.J. No. 5358, 2010 ONCA 838
. In that case, the Court of Appeal also considered the scope
of s. 18 of the Limitations Act. The issue before the
court was whether a co-defendant could sue for contribution and
indemnity when the plaintiff's claim against the defendant was
statute-barred. The discoverability issue was not addressed. The
court concluded that such a claim was possible. It observed that
s. 18 of the Limitations Act governed claims for
contribution and indemnity and that the limitation began to run
when the defendant was served with the claim. At para. 29 of the
judgment, Madam Justice Feldman observed:
@EThe effect of the new provision is that the period for
bringing the claim for contribution and indemnity now coincides
much more closely with the basic limitation for bringing all
actions, and procedurally, it is contemplated that all claims
arising out of the incident that caused the injury will be tried
and disposed of together. Therefore, to the extent that a claim
for contribution and indemnity may be brought beyond the
limitation period that applied to the plaintiff's potential
claim against a particular tortfeasor, the extension is
minimized by the operation of s. 18 and any negative
consequences to the tortfeasor by being brought into an action
after he or she could have been sued by the plaintiff are
minimized as well.
[28] As Mr. Justice Perell notes, at para. 90, the issue of discoverability was addressed in Lilydale Cooperative Ltd. v. Meyn Canada Inc., [2010] O.J. No. 3142, 2010 ONSC 4114 (S.C.J.), in which Madam Justice D. Wilson held that s. 18 applied without [page502] being subject to the discoverability principle. This decision has since been applied in Boutz v. DTE Industries Ltd., [2013] O.J. No. 5304, 2013 ONSC 7085 (S.C.J.); Welch v. Peel Standard Condominium Corp. No. 755, [2013] O.J. No. 5669, 2013 ONSC 7611 (S.C.J.); and Scotia Mortgage Corp. v. Chmielewski, [2013] O.J. No. 524, 2013 ONSC 856 (S.C.J.).
[29] At para. 97, Mr. Justice Perell concluded that the
discoverability principle does not apply to s. 18 of the
Limitations Act. At para. 94, he reasoned:
@I. . . by using the language of a deeming provision without any
reference to the deeming of discovery of the claim being
rebuttable, the legislature intended to impose an absolute
two-year limitation period with respect to claims for
contribution and indemnity.
He added that this approach brings certainty and efficiency to the law of limitations, and is consistent with the policy purposes of the Act: para. 95. He also commented that it would be a rare case where a defendant would not know whom to sue for contribution and indemnity; in any event, the further limitation of two years would provide "ample time" to exercise due diligence to determine against whom to claim: para. 96.
[30] In Demide, decided by Madam Justice Leach, the parties agreed in argument that the deeming provision in s. 18 of the Limitations Act created a rebuttable presumption of discoverability when read with s. 5 of the Act. No case law was cited. Instead, the argument in Demide focused on whether the presumption had been rebutted on the evidence.
[31] Madam Justice Leach, in obiter remarks, agreed with counsel that s. 18 created a rebuttable presumption when discoverability was invoked. She held that s. 18 must be read in conjunction with ss. 5(2) and 15 (the ultimate limitation period) because s. 18 specifically references these sections. She reasoned that a plain reading of the legislation requires such a conclusion and that s. 18 is not intended to be a "stand-alone" limitation: para. 87. She concluded that s. 18 did not need exceptional language about discovering a claim in order to avoid the absolute two-year limitation as that exceptional language is found in s. 5(2). Leach J. determined that the ultimate limitation found in s. 15 would, in any event, invoke closure to claims for contribution and indemnity.
[32] At para. 88, Madam Justice Leach observed that, in
accordance with the policy objectives cited by Sharpe J.A. in
Canaccord, the legislature struck a balance between the
right of the plaintiff to sue and the defendant's need for
certainty by creating a presumptive two-year limitation period
which could be [page503] extended in cases where the claimant
could demonstrate lack of discovery. She added:
@ISuch a party, who fails to approach the possibility of
contribution and indemnity claims with due diligence during the
ensuing presumptive two year limitation period, from that much
earlier date, does so at the party's considerable peril.
[33] At para. 89 of her reasons, Leach J. held that if it is a rare case that a claimant exercising due diligence cannot identify whom to sue for contribution and indemnity, then making such claims subject to discoverability marks a concession to fairness in those rare cases.
[34] Finally, she concluded, at para. 92, that the Court of
Appeal adopted a holistic interpretation of the statute. In
other words, because s. 18 establishes a presumed
beginning to the basic limitation period for contribution and
indemnity, does not mean that the Court of Appeal agrees that
this is an actual limitation. In support of that
conclusion, she cited para. 24 of Placzek v. Green,
[2009] O.J. No. 326, 2009 ONCA 83 to this effect:
@IWhen read in combination with s. 4 and s. 15, s. 18
establishes the date of service of the injured party's statement
of claim as the presumed commencement date for the basic
two-year limitation period and the actual commencement
date for the ultimate 15-year limitation period with respect to
contribution and indemnity claims.
The emphasis is that of Madam Justice Leach.
[35] At para. 93, Leach J. also highlighted the reasons of the
Court of Appeal at paras. 23-24 of Waterloo. Feldman J.A.
referenced ss. 4, 5(2) and 15 of the Limitations Act when
she commented:
@IReading the relevant sections together, a claim for
contribution and indemnity, whether in tort or otherwise, now
has a two year limitation period that is presumed to run
from the date when the person who seeks contribution and
indemnity is served with the plaintiff's claim that gives rise
to its claim over.
[Emphasis added]
Here, too, the emphasis is that of Leach J. At para. 95, she concluded that s. 18 of the Limitations Act is a basic limitation period for contribution and indemnity claims which is subject to discoverability.
[36] There is much to be said for each argument. However, for two reasons I have concluded that s. 18 should be interpreted as a stand-alone limitation period, for claims for contribution and indemnity and not subject to the principles of discoverability. [page504]
[37] The first reason is that it is equally conceivable that by prefacing s. 18(1) with the phrase "For the purposes of subsection 5(2) and section 15", the legislature intended to signal that claims for contribution and indemnity are carved out from other claims that might otherwise qualify for an extension under s. 5(2). In other words, the preface might just as easily be read as a direction to exclude claims for contribution and indemnity from the effect of s. 5(2) rather than as a direction to read them as subject to s. 5(2). If it is a rare case where a claimant would not know whom to sue for contribution and indemnity, then this limitation on the scope of such claims, potentially two further years after the first limitation has run, would not be unreasonable. Arguably, it would create greater certainty.
[38] Second, a series of cases in the Superior Court have adopted the interpretation of s. 18(1) as a stand-alone limitation for claims for contribution and indemnity. Certainty in the law derives from the consistent and predictable application of legal principles by the court unless there is good reason not to do so. Counsel must be able to advise clients of the likely outcome of a legal argument. Individuals should be able to accept legal advice and order their affairs accordingly. At least until the Court of Appeal settles the matter, a consistent approach to the interpretation of s. 18(1) will lend predictability and certainty to this area of the law.
[39] Accordingly, I have concluded that principles of discoverability do not apply to claims for contribution and indemnity under s. 18(1) of the Limitations Act, 2002.
[40] In this case, the amended statement of claim was served on May 19, 2012. Accordingly, the limitation for serving the third parties with a claim for contribution and indemnity expired after May 19, 2014. The plaintiff's claim is therefore statute-barred.
Discoverability
[41] Even if I am incorrect with respect to the limitation
argument, the plaintiff has not met his onus of proving that his
claims were not discovered prior to the expiry of the limitation
period. In both the British Columbia pleading (filed in Small
Claims Court on May 23, 2012 and subsequently transferred to the
B.C. Supreme Court) and the first Ontario action (dated October
31, 2012), the plaintiff pleaded that the third parties "knew or
ought to have known" [page505]
@L00,03,00-- that the defendant was engaged in unapproved
outside business activities;
@L00,03,00-- that the defendant improperly recommended high-risk
investments to his clients;
@L00,03,00-- about the defendant's alleged misconduct;
@L00,03,00-- that they had a duty to disclose the defendant's
alleged misconduct to the plaintiff and were in breach of their
duty when they failed to do so;
@L00,03,00-- that they had a duty to supervise the defendant but
failed to do so;
@L00,03,00-- that they withheld commissions and other
remuneration from the plaintiff.
[42] In addition, the plaintiff pleaded in its notice of civil
claim in the B.C. Supreme Court on November 23, 2012, and in the
first Ontario action, dated October 31, 2012, that
@L00,03,00-- but for the third parties' alleged breaches, the
plaintiff would not have entered into a partnership agreement
with the defendant;
@L00,03,00-- the plaintiff suffered losses as a result of
entering into the partnership agreement; and
@L00,03,00-- the third parties directed clients of the plaintiff
to other financial advisors.
[43] The record therefore shows that the existence of claims against the third parties were not only discoverable before the expiration of the limitation period, but were also discovered. On these facts, there can be no resort to discovery principles. Nor did the plaintiff plead that delayed discoverability should apply.
[44] The plaintiff cannot wait until he acquires certain
knowledge of the third parties' wrongdoing before commencing an
action. The limitation starts to run when the plaintiff is aware
of prima facie grounds supporting a claim. In Lochner
v. Toronto (City) Police Services Board (2015), 2015 ONCA 626, 128 O.R. (3d) 318
, [2015] O.J. No. 4795, 2015 ONCA 626, para. 7, the
Court of Appeal concluded:
@EThe fact that [the plaintiff] does not know whether the
defendants are culpable or liable . . . does not prevent the
limitation period from running. Knowledge of liability on the
part of the injured person is not part of discoverability for
the purposes of the running of the limitation [page506] period.
It is the lawsuit itself which is the process by which liability
for an act is determined.
Conclusion
[45] For reasons given above, summary judgment is granted. The claim against the third parties for contribution and indemnity is dismissed. If counsel cannot agree on costs, they may file written costs submissions within 30 days of the release of these reasons, not to exceed five pages.
Motion granted.
End of Document