COURT FILE NO.: CV-15-4187-00 DATE: 2017 04 18
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Cindy Gayle Ryan, Plaintiff - and – Peel District School Board, Defendant
BEFORE: Bloom, J.
COUNSEL: Maria N. Sirivar, Counsel for the Plaintiff Michael Tersigni and Kimberley Ishmael, Counsel for the Defendant
HEARD: April 10, 2017
E N D O R S E M E N T
I. Introduction
[1] The Defendant moves for summary judgement dismissing the action of the Plaintiff as statute-barred by reason of the expiry of the two year limitation period prescribed by the Limitations Act, 2002. The Plaintiff seeks by way of disposition of the motion, a declaration that her claim is not statute-barred.
II. Factual Background
[2] The Plaintiff began working for the Defendant Board in April of 1989. Over the years there were organizational changes that affected her. On September 29, 2011 she executed her current employment contract with the Board. She began work under it on October 1, 2011, and continues to be an employee of the Board.
[3] Her action seeks relief regarding non-payment by the Board of pension contributions to the OMERS pension plan on her behalf for two periods. Those two periods are distinct; the first commences August 1, 1992, and the second ends September 30, 2011.
[4] The Plaintiff’s action was commenced on September 10, 2015.
III. Governing Principles
[5] The relevant statutory provisions are sections 1, 4, and 5 of the Limitations Act, 2002, the material portions of which are set out below:
1 In this Act,
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; (“réclamation”)
Basic Limitation Period
Basic limitation period
4 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. 2002, c. 24, Sched. B, s. 4.
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(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
(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). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(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. 2002, c. 24, Sched. B, s. 5 (2).
[6] In 407 ETR Concession Co. v. Day, 2016 ONCA 709, [2016] O.J. No. 5006 Justice Laskin for the Court of Appeal considered the application of those provisions at paras 30 to 35 and 39 to 53:
30 Assuming the 15-year limitation period in Mr. Day's transponder lease agreement does not apply, 407 ETR's claim is subject to the basic two-year limitation period in s. 4 of the Limitations Act, 2002. Under s. 4, "a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered " (emphasis added).
31 The day on which 407 ETR's claim was discovered is the day on which 407 ETR knew or ought to have known the four matters set out in s. 5(1)(a) of the Act:
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(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
(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).
32 Obviously, 407 ETR knew the first three matters in s. 5(1)(a) as early as the delivery of its s. 16 notice in March 2011. It knew by then it had suffered a loss; it knew the loss was caused by the failure to pay an invoice that was due and payable; and it knew that Mr. Day had failed to pay it. This first issue on the appeal turns on s. 5(1)(a)(iv): when should 407 ETR have known that a civil action against Mr. Day was an "appropriate means" to recover its loss?
33 The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect -- as it does in this case -- of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant's actions.
34 Also, when an action is "appropriate" depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts.
35 In the case before us, the date when a civil action would be an "appropriate means" for 407 ETR to recover its loss must be assessed not only in the context of the purpose of that element of s. 5(1)(a) and the words that qualify it, but also in the context of the statutory regime under which 407 ETR operates.
39 A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid -- in other words, when the usually effective licence plate denial process has run its course. Thus, the date when a vehicle permit expires for the failure to pay a toll debt is the date a civil action is an appropriate means to recover that debt. This date starts the two-year limitation period. For Mr. Day, this date is December 31, 2011. I say this for four reasons.
40 First, under s. 5(1)(a)(iv) of the Limitations Act, 2002, the date a proceeding would be an appropriate means to recover a loss must have "regard to the nature of the ... loss". So, in fixing the appropriate date, it may not be enough that the loss exists and the claim is actionable. If the claim is the kind of claim that can be remedied by another and more effective method provided for in the statute, then a civil action will not be appropriate until that other method has been used. Here, a claim will not be appropriate until 407 ETR has used that other method, without success.
41 As the Divisional Court recognized it its 2005 decision, and the motion judge recognized in this case, the other method for toll collection provided for in the Highway 407 Act, 1998 -- licence plate denial -- is far more effective than a civil action. By providing for licence plate denial, the legislature must be taken to have recognized its effectiveness. People who cannot renew their vehicle permits until they deal with their toll debts have a powerful incentive to pay.
42 The statistical evidence bears out the effectiveness of licence plate denial. 407 ETR issues over one million invoices a month. Nearly 70 per cent of those invoices are paid within one month, which means just over 30 per cent are not. Significantly, about 75 per cent of permit holders in default pay their toll debts after being advised the Registrar has sent a s. 22 notice. Of those, just over one half pay before or on the date their vehicle permits have to be renewed; the remainder pay after their vehicle permits have expired.
43 These statistics show that the motion judge's start date -- the delivery of a s. 22 notice to the Registrar -- is too early in the process. It comes at the beginning of the process instead of where I think it should come, at the end. The licence plate denial process should be allowed to run its course. As the statistics show, most people, fearing the consequences, eventually pay after receiving a s. 22 notice. Only if the process fails to prompt payment does litigation become an appropriate means to recover the debt.
44 Second, in determining when a claim ought to have been discovered, s.5 (1)(b) of the Limitations Act, 2002 requires the court to take account of "the circumstances of the person with the claim". 407 ETR's "circumstances" differ from those of many other creditors. Highway 407 itself is enormously busy: 380,000 trips on an average workday. As a consequence, 407 ETR must process an enormous number of invoices, almost all for amounts of no more than a few hundred dollars apiece. And unlike, for example a credit card company, which can cancel a customer's credit card for non-payment of a debt, 407 ETR cannot bar a defaulting debtor's access to the highway.
45 407 ETR's "circumstances" strongly suggest that requiring it to sue before finding out whether licence plate denial has achieved its purpose would be inappropriate. An important case on the significance of a plaintiff's "circumstances" is the majority judgment in Novak v. Bond, [1999] 1 S.C.R. 808. In that case, McLachlin J. considered s. 6(4)(b) of British Columbia's Limitations Act, R.S.B.C. 1996, c. 266, which provided that time did not begin to run against a plaintiff until "the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action" (emphasis added). At para. 85 of her reasons, McLachlin J. discussed "interests and circumstances" and cautioned against the potential unfairness of requiring a plaintiff to bring an action at the time a claim first materializes: Litigation is never a process to be embarked upon casually and sometimes a plaintiff's individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely. [Emphasis added; footnotes omitted.]
46 Similarly here, holding that time begins to run against 407 ETR before it knows whether licence plate denial has prompted payment would be unfair, or to use the word of our statute, would not be "appropriate".
47 Holding that the two-year period begins after the licence plate denial process fails to prompt payment does not raise the concern Sharpe J.A. referred to in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34. There, he said that "appropriate" must mean "legally appropriate". By using that phrase he signified that a plaintiff could not claim it was appropriate to delay the start of the limitation period for tactical reasons, or in circumstances that would later require the court to decide when settlement discussions had become fruitless. In this case, however, 407 ETR seeks to delay the start of the limitation period for a legally appropriate reason: waiting until a statutorily authorized process has been completed.
48 A third consideration is what I take to be an important purpose of s. 5(1)(a)(iv). The overall purposes of limitation statutes are well-established and well-known: certainty, finality and the unfairness of subjecting defendants to the threat of a lawsuit beyond a reasonable period of time. But it seems to me one reason why the legislature added "appropriate means" as an element of discoverability was to enable courts to function more efficiently by deterring needless litigation. As my colleague Juriansz J.A. noted in his dissenting reasons in Hare v. Hare (2006), 83 O.R. (3d) 766 (C.A.), at para. 87, courts take a dim view of unnecessary litigation.
49 If the limitation period runs concurrently with the licence plate denial process, as would be the case under the motion judge's start date, then there would be the real possibility of numerous Small Claims Court claims. And these claims would be needless because the vast majority of defendants would likely pay their debts to avoid having their vehicle permits expire. The evidence in the record shows that as of June 2014, for invoices outstanding for 23-24 months, 10,144 separate court actions would be required. The average amount of each claim would be $497. Only one to two per cent of claims would exceed $5,000.
50 I acknowledge Mr. Day's argument that if the motion judge's start date is used, 407 ETR could in almost every case still bring any necessary actions within the two-year period, because vehicle permits have to be renewed every two years. But imposing a burden on 407 ETR to keep track of two concurrent proceedings -- licence plate denial and the running of the two-year limitation period -- is impractical and unnecessary. Such a burden does not provide an effective method of toll collection. A far simpler and more appropriate solution is to delay the start of the limitation period until the licence plate denial process has ended.
51 Finally, although 407 ETR has discretion when and even whether to send a s. 22 notice to the Registrar, that discretion does not detract from the appropriateness of using the end of the licence plate denial process as the start of the two-year limitation period. In theory, I suppose, as Mr. Day contends, 407 ETR could use its discretion to manipulate the start date. But why, one may ask rhetorically, would it do so? Its commercial interests dictate otherwise.
52 In this case, we have no evidence 407 ETR manipulated the date for sending Mr. Day a s. 16 notice or the Registrar a s. 22 notice. A short delay occurred between the date it could have given these notices under the statute and the dates it actually gave these notices. The short delay was presumably attributable to the necessity of accessing the relevant databases and other administrative matters.
53 Also, even accepting that 407 ETR has discretion when to send the s. 16 and s. 22 notices, the end date of the licence plate denial process is a date that is certain and easily ascertainable. It is the date when the holder's vehicle permit comes up for renewal. If the holder's debt has not been paid by this date, then an action becomes an appropriate means to recover the debt and the two-year limitation period begins to run.
[7] In Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516, [2017] O.J. No. 1137 (ON SC) Justice Perell further developed at paras. 59 to 87 the principles discussed by Justice Laskin:
59 When a limitation period defence is raised, the onus is on the plaintiff to show that its claim is not statute-barred and that it behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the wrongdoing: Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) at para. 13; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567 at paras. 12-14; Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803 at paras. 35-41. That the onus is on the plaintiff accords with the presumption in s. 5(2) of the Act that a person with a claim shall be presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved.
60 The discoverability principle, which has been largely codified by s. 5 of the Limitations Act, 2002, governs the commencement of a limitation period and stipulates that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief: Kamloops v. Nielson (1984), 10 DLR (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 31 DLR (4th) 481 (S.C.C.); Peixeiro v. Haberman, [1997] 3 S.C.R. 549. Thus, a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.
62 With respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is "discovered" on the earlier of the date the claimant knew -- a subjective criterion -- or ought to have known -- an objective criterion -- about the claim: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70. In determining whether a plaintiff knew or ought to have known of the facts giving rise to a claim, the knowledge of his or her solicitors is imputed to the plaintiff. Soper v. Southcott, supra; Davenport v. Roughley Estate, [2003] O.J. No. 679 (Master); Biancale v. Vieyra, [2007] O.J. No. 1579 (S.C.J.).
65 Section 5(1)(a)(iv) of the Limitations Act, 2002 can have the effect of delaying the commencement of the running of limitation period. Where a person knows that he or she has suffered harm; i.e., when the plaintiff knows the elements of s. 5(1)(a)(i), (ii) and (iii), the delay lasts until the day when a proceeding would be an "appropriate" means to remedy the harm having regard to the nature of the injury, loss or damage. However, to have this delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218; Federation Insurance Co. of Canada v. Kingsway General Insurance Co., 2012 ONCA 218.
68 Justice Laskin, who wrote the judgment for the Court (Justices MacFarland and Roberts concurring), noted that s. 5(1)(a)(iv) altered the operation of the common law discovery principle and might have the effect of delaying the commencement of the running of a limitation period. The commencement of the running of the limitation period might be delayed because there might be a lag between the time when the plaintiff discovered the material facts of his or her cause of action and when "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it." Justice Laskin observed that when resort to litigation would be appropriate depends on the specific factual or statutory setting of each individual case, including taking into account the particular interests and circumstances of the plaintiff.
70 When resort to litigation would be appropriate depends on the specific factual or statutory setting of each individual case, including taking into account the particular interests and circumstances of the plaintiff: 407 ETR Concession Co. v. Day, supra; Unicorr Limited v. Minuk Construction & Engineering Limited, 2016 ONSC 7350. However, courts have held that a proceeding is not legally appropriate until other dispute resolution mechanisms, including statutory remedies, have been exhausted: U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103, at paras. 22-25; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621, at paras. 52-57, aff'd, 2015 ONCA 847.
• 5. Analysis: The Running of Limitations Periods for STD and LTD Insurance Claims
71 As of November 1, 2007, Mr. Pepper had a breach of contract cause of action against Standard Life. Thus, to make his February 17, 2010 Statement of Claim timely, the onus is on Mr. Pepper to show that he discovered his claim later than November 1, 2007.
72 In other words, had Mr. Pepper sought legal advice on November 1, 2007, his lawyer would have told him that he already had a perfected cause of action against Standard Life. The presumption in s. 5(2) of the Limitation Act, 2002 is that Mr. Pepper discovered his claim against Standard Life on November 1, 2007, unless the contrary is proved.
73 In my opinion, based on the evidentiary record, Mr. Pepper proved that, subjectively, he did not discover his claim against Standard Life until on or after he had retained Mr. Levin. In January 2008, Mr. Pepper instructed Mr. Levin about the history of his disability claims and the current status that he had lost his appeal against the termination of his LTD benefits but that he had provided further medical reports to Standard Life from Drs. Wiley and Axler in December 2007 and a decision was pending. Up until this point of time, Mr. Pepper had not subjectively discovered his claim against Standard Life because he was operating under the belief that there had not been any absolute definitive refusal of his claim for LTD benefits. Subjectively, in the fact-specific circumstances of the case at bar, until Mr. Pepper retained Mr. Levin, his belief that there had been no definitive breach of the insurance contract was genuine and reasonable and, subjectively speaking, commencing an action against Standard Life would not have been appropriate for Mr. Pepper having regard to the nature of his claim under the insurance policy and the history of his relationship with Standard Life.
74 The legal and factual situation, however, changed upon Mr. Pepper retaining Mr. Levin. Much like a personal injury lawyer would ask when the car accident occurred, in taking instructions, Mr. Levin knew or ought to have known that as of November 1, 2007, Mr. Pepper had a perfected breach of contract cause of action against Standard Life.
75 While it could have occurred earlier if Mr. Pepper had retained a lawyer earlier than January 2008, at that juncture, Mr. Levin could have had a Statement of Claim against Standard Life drafted and issued, and Mr. Pepper's breach of contract claim would not have been premature. Objectively speaking, as of January 2008, having regard to the nature of the alleged breach of the insurance contract, a proceeding against Standard Life was fully ripened.
82 The correct articulation of the law is that a clear and unequivocal denial of the benefits under the contract could constitute a breach of the insurance contract that would commence the running of a limitation period; however, a clear and unequivocal denial is not a prerequisite to a cause of action. What is required is a breach of the contract. An unequivocal denial would constitute a repudiation of the contract, but a breach of contract could also be proven simply by a failure to perform the contract promises.
83 In the immediate case, to borrow the language of Justice Sharpe in Markel Insurance Co. of Canada, supra, the claim against Standard Life was fully ripened in November 2007 and requiring the court to assess the tone and tenor of communications in search of a clear denial would inject an unacceptable element of uncertainty into the law of limitation of actions. In the immediate case, I did not weigh the tone and tenor of the communications to come to the conclusion that the commencement of the limitation had been delayed. Rather, I had regard to the totality of the relationship between the parties, including taking into account the particular interests and circumstances of Mr. Pepper.
84 In any event, in the immediate case, there was a clear and unequivocal denial as early as the correspondence in August 2007 and again in November 2007, but more to the point, the insurance contract was possibly breached as of November 1, 2007 by Standard Life's non-performance of the contract promise to provide LTD benefits, which it failed to do. The commencement of the limitation period, however, was delayed in the particular circumstances of this case.
87 I do not disagree with the authority or the correctness of the decisions in Kassburg v. Sun Life, but I do not read the case as establishing a principle that a clear and unequivocal denial is a requirement before a limitation period begins to run for a claim against an insurer. Rather, the case simply illustrates that the discovery of a claim is a fact-based analysis and a breach of contract claim does not come into existence until there is a breach of contract, which as a factual matter did not occur in Kassburg v. Sun Life until the rejection of Ms. Kassburg's appeal. There is no discussion in the decision of Justice Ellies or in decision of the Court of Appeal of any principle that a clear and unequivocal denial is a prerequisite to a claim under a disability insurance policy.
[8] The material parts of Rule 20.04 provide:
DISPOSITION OF MOTION
General
20 .04 (1) Revoked: O. Reg. 438/08, s. 13 (1).
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).
Powers
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).
IV. Analysis
[9] The Plaintiff’s position is captured in paragraphs 44 to 47 of her factum. She asserts that “the limitation period began to run no earlier” than September 30 of 2014 when on behalf of the Defendant Jaspal Gill made the final decision that the Plaintiff was not entitled to the pension contributions in issue; that until after that date the Plaintiff reasonably believed that “if she provided additional information” to the Board and OMERS, “as she was invited to do, her pension omission would be corrected”; that “[i]t was not appropriate to commence litigation until after September 30, 2014”; and that, accordingly, “the commencement of the limitation period was delayed until after September 30, 2014.”
[10] The Defendant in oral argument contended that the Plaintiff “discovered” her claim within the meaning of s. 5 of the Limitations Act as early as 2002, and certainly by September 29, 2011 when in her new employment contract she was clearly informed by the Board that it was denying her claim for the disputed periods. The Defendant also supported its position by pointing out that on its behalf in a letter to the Plaintiff of October 25, 2011 Carla Kisko reiterated that position; and that on October 27, 2011 in an e-mail its counsel informed counsel for the Plaintiff again of the Defendant’s denial of liability.
[11] The issue then is when, applying s. 5 (1) (b) of the Limitations Act, the Plaintiff ought to have known that litigation was appropriate.
[12] I have concluded on the basis of the principles articulated in 407 ETR, supra and Pepper, supra that by October 27, 2011 the Plaintiff “first ought to have known” that the commencement of litigation was “appropriate”; and that, therefore, her action commenced on September 10, 2015 is statute-barred. There is, thus, “no genuine issue requiring a trial”, and I grant the Defendant’s motion for summary judgement, dismissing the action. I will now explain my reasons for those conclusions.
[13] The Plaintiff in her affidavit sworn March 3, 2017 described communications between her and officials of the Defendant respecting the pension contributions issue.
[14] These negotiations commenced as early as 2002.
[15] However, on September 29, 2011 the Plaintiff signed an employment contract with the Defendant. It provided that “[t]his offer is without prejudice to your outstanding claim regarding past contributions to OMERS in respect of your employment prior to September 30, 2011, which remains outstanding. You and the Board are not in agreement regarding the Board’s obligations in respect of the prior period.”
[16] By letter of October 25, 2011 to the Plaintiff, Carla Kisko for the Defendant stated,
[R]egarding past contributions to …”OMERS” on your behalf, in respect of your employment from and after 1992 and up to September 30, 2011 (‘”the Disputed Period”) You and the Board are not in agreement regarding the Board’s obligations in respect of the prior period. The Board denies that it has any liability or obligation to OMERS or to you in respect of any pension contributions, interest or other obligations in respect of the Disputed Period.
[17] On October 27, 2011 counsel for the Defendant by e-mail to counsel for the Plaintiff stated, “If Ms. Ryan approaches OMERS for more information the Board is prepared to review the matter again on a without prejudice basis but cannot make any commitments and must reserve its rights.”
[18] In fact negotiations between the parties continued at least until September of 2014.
[19] By October 27, 2011 the Plaintiff was represented by counsel. The Plaintiff had been informed previously on September 29, 2011 in her contract of employment and again on October 25, 2011 that the Defendant disputed her claim.
[20] By analogy to the situation in Pepper, supra, by October 27, 2011 the Plaintiff ought to have known that litigation was appropriate. The Defendant had denied liability, although it was willing to discuss settlement on a without prejudice basis. With the benefit of the legal counsel she had, the Plaintiff ought to have known that litigation was appropriate.
[21] I have had regard to the principle that determining the discovery of a claim is a fact-based analysis. I have considered (as Justice Perell did in Pepper, supra at para. 83) “the totality of the relationship between the parties, including … the particular interests and circumstances of” the Plaintiff. I have also been mindful that the onus in respect of the limitation period issue is on the Plaintiff.
[22] I, therefore, grant the motion for summary judgment, and dismiss the action.
V. Costs
[23] If the parties cannot agree on costs, I will receive written submissions in that regard. The Defendant is to serve and file its submissions within two weeks from release of this endorsement. The Plaintiff is to serve and file her submissions within two weeks of service of the Defendant’s submissions.
Bloom, J.