A. Introduction

[1] On September 24, 2012, the Plaintiff Sukran Yilmaz was helping her husband, the Plaintiff Hasan Yilmaz, deliver newspapers on the 16^th^ floor of a residential condominium apartment building in Toronto. She was injured in an encounter with an unleashed dog. On April 11, 2013, the Yilmazes commenced an action against: (a) Avery Civil, the owner of the dog; (b) TSCC #2094, the Condominium Corporation; and (c) Shelter Canadian Properties Limited, the property manager of the condominium. Seven years later, on October 17, 2019, Ms. and Mr. Yilmaz commenced a new action against G4S Secure Solutions (Canada) Ltd. (“G4S Security”), which provided concierge and security services at the condominium, and Jay Klein, who was the landlord of Mr. Civil.

[2] Mr. Klein did not defend, and G4S Security now brings a summary judgment motion to have the Plaintiffs’ 2019 action dismissed as statute-barred under the Limitations Act, 2002.[^1]

[3] For the reasons that follow, I dismiss the Yilmazes’ 2019 action as statute-barred. The moral of this story is that under the Limitations Act, 1992, perfect knowledge of a claim is the enemy of the good.

B. Procedural and Evidentiary Background

[4] On April 11, 2013, the Yilmazes commence an action against: (a) Avery Civil, the owner of the dog; (b) TSCC #2094, the Condominium Corporation; and (c) Shelter Canadian Properties Limited, the property manager of the condominium. (Court File No. CV-13-478126). The action was brought under the simplified procedure of Rule 76 of the Rules of Civil Procedure.[^2] The action advances a claim under the Occupiers’ Liability Act.[^3]

[5] On June 12, 2013, the Condominium Corporation and Shelter Canadian Properties deliver their Statement of Defence and their Crossclaim against Mr. Civil.

[6] Mr. Civil did not defend, and he has been noted in default.

[7] In April 2015, the Condominium Corporation and Shelter Canadian Properties serve their joint Affidavit of Documents.

[8] On October 18, 2017, John Peterson, who was the property manager at the time of the incident is examined for discovery as the representative of the defendants.

[9] On October 17, 2019, the Yilmazes commence an action against G4S Secure Solutions (Canada) Ltd. and Jay Klein. The action is also brought pursuant to the rules for a simplified procedure. In their action against G4S Security, the Yilmazes plead in paragraph 4 of the Statement of Claim:

The Defendant G4S Security (Canada) Ltd. (hereinafter referred to as “G4S Security”) … At all material times, this Defendant owed the Plaintiff a duty of care as it was responsible for providing concierge and/or security services at the subject premises in order to, inter alia, enforce and encourage compliance with Condominium Corporation Rules, By-Laws and security requirements, including unwritten rules and common sense requirements such as those requiring dogs to be on leash while on the premises, deter security breaches by being visible at all times, be available to respond promptly and effectively to any security breaches or dangers on the premises, and specifically to ensure that patrons are safe from unauthorized pets that are or are permitted to be loose in the common area of the premises.

[10] On April 14, 2020, G4S Security delivers its Statement of Defence and its Crossclaim against Mr. Klein.

[11] On August 31, 2020, the Yilmazes deliver their Reply to the Statement of Defence.

[12] On June 4, 2021, G4S Security brings a motion for a summary judgment. The motion is supported by the affidavit dated May 14, 2021 of Patricia Luciani. Ms. Luciani is the General Manager, Residential Division of G4S Security.

[13] The Plaintiffs respond to the summary judgment motion with: (a) an affidavit dated June 18, 2021 from Ms. Yilmaz along with the affidavit from her translator; and (b) an affidavit dated June 23, 2021 from Adam Romain, who is the Yilmazes’ lawyer.

[14] In the summary judgment motion, G4S Security delivers a Reply affidavit dated July 8, 2021 from Ms. Luciani.

[15] Mr. Klein has not defended the 2019 Action.

[16] There are no cross-examinations for the summary judgment motion because the action is governed by the simplified procedure.

[17] There has been no motion to add G4S Security to the 2013 action and no motion to consolidate the 2013 action with the 2019 action.

C. Facts

[18] In 2012, the Yilmazes are delivering newspapers to the occupants of the condominium apartment building owned by the Condominium Corporation at 35 Hayden Street, in the City of Toronto. They know that there is a concierge service with a desk in the lobby. Although the uniforms of the concierge bear the emblem badge “G4S Security”, they do not know what precise security services, if any, are provided by the concierge. They do not know the rules and regulations for the occupants of the condominium, because they are not residents of the building. They do not know whether there are rules about the control of pets on the premises.

[19] In 2012, the property manager for the Condominium Corporation is Shelter Canadian Properties. In 2012, G4S Security is providing concierge services to the Condominium Corporation. G4S Security provided security services from 2009 until October 31, 2019.

[20] On September 24, 2012, Mr. Civil is a tenant of a condominium unit on the 16^th^ floor of the condominium building. He is renting a unit from its owner, Mr. Klein.

[21] On September 24, 2012, after Ms. Yilmaz delivers newspapers on the 16^th^ floor of the condominium, she waits at the elevator. The elevator arrives. Inside the elevator is Mr. Civil with his unleashed dog. The elevator door opens. The dog chases Ms. Yilmaz down the hallway and pounces on her as she attempts to flee in the common area of the condominium. She falls. She breaks her forearm, and she suffers other injuries.

[22] Security cameras record parts of the incident.

[23] After the incident, Mr. Yilmaz goes to the lobby, and he speaks to the concierge. The concierge is wearing a standard issue uniform that consists of a black suit, white business shirt, and black and red necktie. The suit jacket has a large black, white and red “G4S Security” emblem on the front left area next to the lapel.

[24] In the records of the Condominium Corporation, there is an incident report apparently prepared a day after the incident (or misdated) and entered two days after the incident. While it is not entirely clear who prepared the incident report, because it has no letterhead, I find that it was likely prepared by the concierge of G4S Security. The incident report states:

Incident Type Other incident

Start Date – September 25, 2012 End Date – September 25, 2012

Associated Unit 1605

Notified Management Completed

Incident Number 377

Date & Time Entered 09:/26/2012 04:33

Entered by Jack Rebic

Reported by Jack Rebic

Report Area The 16^th^ floor–Elevators Lobby-Hallway

Supervisor Notified Yes

Property Manager Notified

select one -

Superintendent Notified

select one -

Details & Circumstances – Who? What? Where? When? Why? At the above mentioned place, date, and time, residents Suite #1605, Mr. Civil Avery and his girlfriend were exiting from an elevator #2 at the 16^th^ floor with their dog which was NOT kept on a leash at a time. As soon as they stepped out from elevator, there was a female “The Globe & Mail” delivery person, waiting for the same elevator. She was scared of dog, and she ran away down the hallway. A dog ran after her and Mr. Civil after the dog. Later on, concierge tried to talk to this lady, to ask her for her well being, but she just said bye!” and left the Lobby. About five to seven minutes later on, her husband approached the concierge desk, complaining about the un-leashed dog, and how his wife was crying and was in leg-pain. He was advised by Concierge that Management will deal with this resident. Then this man left also premises. No further action was taken. ZR [sic JR?]

Incident Photos:

Notes September 25, 2012 10:36AM Checked, by Tahir Farooq

[25] Pausing here, as I will explain in the analysis and discussion part of these Reasons for Decision, I conclude that the limitation period of the Yilmazes’ claim against G4S Security began to run on September 24, 2012: both (a) presumptively in accordance with s. 5 of the Limitations Act, 2002; and also (b) as a fact in accordance with s. 4 of the Limitations Act, 2002.

[26] Returning to the narrative, on September 26, 2012, John Peterson, who was the property manager employed by Shelter Canadian Properties writes Mr Avery. The letter states:

RE: DOG LEASH

Dear Resident,

It has come to Management’s attention that in the early morning hours of September 25^th^ 2012, you were walking your dog without a leash on the building’s premises and in the elevators and hallways. It was also noted that when you exited the elevator on the 16^th^ floor, your dog was not on a leash. Kindly keep your dog on a leash at all times while on the building’s premise. If you have any questions, please do not hesitate to contact the undersigned.

[27] After the dog attack, the Yilmazes hire Adam Romain of Romain Law to represent them and on April 11, 2013, the Yilmazes commence an action against: (a) Avery Civil, the owner of the dog; (b) TSCC #2094, the Condominium Corporation; and (c) Shelter Canadian Properties Limited, the property manager of the condominium. (Court File No. CV-13-478126).

[28] After the incident, Mr. Yilmaz attempts to obtain from the Condominium Corporation documents regarding the dog, the identity of the owner, and the rules of the condominium corporation. However, he receives no information.

[29] The Condominium Corporation and Shelter Canadian Properties retain Maya Jacob of McCague Borlack LLP to represent them, and on June 12, 2013, the defendants deliver their Statement of Defence and their Crossclaim against Mr. Civil.

[30] On October 13, 2013, Mr. Romain writes Ms. Jacob and requests copies of the Condominium Corporation’s rules and its contracts for property management services. By letter dated October 22, 2013, Ms. Jacob refuses to provide the documents on the grounds that they are not relevant to the litigation.

[31] On January 30, 2015, Sabrina Lucibello of McCague Borlack LLP writes Mr. Romain and demands delivery of the Yilmazes’ Affidavit of Documents.

[32] In January 2015, the Condominium Corporation and Shelter Canadian Properties change their lawyer to Luke Field of AMR LLP.

[33] In April 2015, the Condominium Corporation and Shelter Canadian Properties serve their joint Affidavit of Documents. Schedule “A” to the Affidavit of Documents is as follows:

SCHEDULE A

Documents in the defendants possession control or power that they do not object to producing for inspection

TAB	DATE	DOCUMENT
1	July 15, 2010	TSCC No 2094 Declaration
2	July 15, 2010	TSCC No 2094 By Law 1
3	March 1 2012	Security Services Agreement
4	September, 25 2012	Incident Report
5	September 25 2012	Photographs
6	September 25 2012	Surveillance Video

TAB	DATE	DOCUMENT
1	July 15, 2010	TSCC No 2094 Declaration
2	July 15, 2010	TSCC No 2094 By Law 1
3	July 27, 2011	Resident Information Form Front Desk Registration Form for Suite 1605
4	March 1, 2012	Security Services Agreement
5	September 25, 2012	Incident Report
6	September 25, 2012	Photographs
7	September 25, 2012	Surveillance Video
8	September 26, 2012	Letter from Bloor Street Neighbourhood Condominium Residents to Resident of Suite 1605 re Dog Leash
9	October 16, 2012	Letter from Bloor Street Neighbourhood Residents to Avery Civil re Pet Violation
10	October 17, 2012	Photographs of Sukran Yilmaz’s Injuries
11	December 5, 2012	Response to Municipal Freedom of Information and Protection of Privacy Act
12	Various	Clinical Notes and Record of Pape Medical Centre

#	Undertaking	Date answered or precise reason for not doing so
9	To provide all documents related to the retention of the security company, including schedules, post orders and memorandums of understanding	Please see attached request letters to security company.
13	To advise when G4S (security company) first started at the premises.	The contract that was in place at time of incident commenced March 1, 2012.
14.	To advise regarding the responsibilities of the security company.	Security company was responsible to enforce rules of the condominium.
21	To inquire of the security company and produce the log book.	See answer to UT #9.
42	To advise his legal position with respect to the security company’s responsibility to enforce and encourage compliance with the rules.	On reconsideration, unable to answer as this is a legal position and not a proper question for discovery.

D. Is the Case Appropriate for a Summary Judgment?

[63] The first issue to determine is whether the case at bar is an appropriate one for a summary judgment.

[64] Rule 20.04(2)(a) of the Rules of Civil Procedure[^4] provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (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.

[65] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial.[^5] Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.[^6]

[66] In Hryniak v. Mauldin[^7] and Bruno Appliance and Furniture, Inc. v. Hryniak,[^8] the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[67] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.[^9]

[68] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[^10] The motions judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.[^11]

[69] In the immediate case, I am confident that I can reach a fair and just determination without a trial. With or without remembering that the parties must put their best evidentiary foot forward, I have a fulsome evidentiary record that allows me to make the necessary findings of fact, which I have set out above. I received competent and helpful legal argument and I am able to apply the law to the facts. In so far as the claim against G4S Security is concerned, a summary judgement is a proportionate, more expeditious and less expensive means to achieve a just result. The attributes of the trial process are not necessary for me to make a fair and just determination.

E. Discussion and Analysis

1. Applicable Law

[70] On this summary judgment motion, G4S Security’s argument is that the Yilmazes’ action pursuant to the Occupiers’ Liability Act is statute-barred under the Limitations Act, 2002. The relevant provisions of the Limitations Act, 2002 are sections 1, 4, and 5, which are set out below:

Definitions

In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD

Basic limitation period

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.

Discovery

(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).

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.

[71] Prior to the enactment of s. 5(1)(a)(iv) of the current Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated 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.[^12] The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another.[^13]

[72] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the element that a proceeding is an appropriate means to seek a remedy, 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.[^14]

[73] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a claimant will know of the above matters on the day that the act or omission took place.

[74] Under the discoverability principle, 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.[^15] The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case; it is a fact-based analysis.[^16]

[75] The discoverability of a claim for relief involves the identification of the wrongdoer, and also, the discovery of his or her acts or omissions that constitute liability.[^17] It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence.[^18] Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge.[^19] If the plaintiff does know "enough facts", which means knowing the material facts, then the claim is discovered and the limitation period begins to run.[^20]

[76] The plaintiff is required to act with due diligence in acquiring facts to be fully apprised of the material facts upon which a claim can be based.[^21] However, while due diligence is a factor that informs the analysis of when a claim ought to have reasonably been discovered, lack of due diligence is not a separate and independent reason for concluding that a plaintiff’s claim is statute-barred. The idea rather is that when a reasonable person with the abilities and in the circumstances of the plaintiff would acquire facts to become knowledgeable about the claim, the limitation period does not stop running if the plaintiff takes no steps to investigate whether he or she has a claim.[^22]

[77] When a limitation period defence is raised, the onus is on the plaintiff to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.[^23] What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.[^24]

[78] However, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed, which is the matter that will be determined by his or her lawsuit;[^25] the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim.[^26] The question is whether the prospective plaintiff knows enough facts to base a cause of action against the defendant, and, if so, then the claim has been discovered and the limitation period begins to run.[^27] For the limitation period to begin to run, it is enough for the plaintiff to have prima facie factual grounds to infer that the defendant caused him or her harm, and certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement.[^28]

[79] Ignorance of the law does not postpone the commencement of the limitation period; the circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the running of the limitation period if the claimant knows or ought to know the constituent elements of his or her cause of action.[^29]

2. Application of the Law

[80] In the immediate case, Ms. Yilmaz was the victim of a dog attack on September 24, 2012, and on October 17, 2019 (seven years later), she asserts a “claim,” and Mr. Yilmaz asserts a derivative claim against G4S Security with respect to that dog attack.

[81] Pursuant to s. 5(2) of the Limitations Act, 2002, persons with a claim are presumed to know that they have the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[82] Thus, in the immediate case, unless the Yilmazes prove to the contrary, it is presumed that on September 24, 2012, they first subjectively knew that an injury had occurred that was caused or contributed to by G4S Security’s acts or omissions and a proceeding would be an appropriate means to seek a remedy for the injury.

[83] Further, in the immediate case, unless the Yilmazes prove to the contrary, it is presumed that on September 24, 2012, a reasonable person with their abilities and in their circumstances ought to have known that an injury had occurred that was caused or contributed to by G4S Security’s acts or omissions and a proceeding would be an appropriate means to seek a remedy for the injury.

[84] Thus, pursuant to the Limitations Act, 2002, in the immediate, case, unless the contrary is proved, the Yilmazes’ claims were discovered on September 24, 2012 and the two-year limitation period began to run and it expired five years before they sued G4S Security. In the immediate case, unless they contradict the presumption that they subjectively and objectively discovered their claims against G4S Security on September 24, 2012, Ms. Yilmaz’s and Mr. Yilmaz’s action is statute-barred.

[85] It is a question of fact whether the Yilmazes have rebutted the presumptions of s. 5(2) of the Limitations Act, 2002, and I find as fact that they have not done so. Therefore, the Yilmazes’ 2019 action is statute-barred.

[86] It is readily apparent that around the time of the dog attack, the Yilmazes and their lawyer knew enough to commence in a timely way an occupier’s liability negligence action against Mr. Civil, the Condominium Corporation, and Shelter Canadian Properties. I find as a fact that the Yilmazes and their lawyer also both subjectively and objectively knew enough that the limitation period for the Yilmazes’ claim against G4S Security also began to run in 2012.

[87] The Yilmazes, however, submit that they did not subjectively or objectively discover their claim against G4S Security until 2017 and thus their 2019 action was timely and not statute-barred. They submit that it was not until the examinations for discovery that they learned for the first time that G4S Security was responsible for enforcing the Condominium Corporation’s rules with respect to pets in the condominium.

[88] This submission, however, is fatally flawed. Upon analysis, the Yilmazes’ submission is no more than a submission that it was not until the examinations for discovery that they discovered that their claim against G4S Security might succeed.

[89] But that circumstance of the likelihood of success will not stop the running of the limitation period because, as set out above in the law section, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed, which is the matter that will be determined by his or her lawsuit; the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim. The merits of that claim are not a factor in the commencement of the running of the limitation period for the claim.

[90] In the immediate case, I find as a fact that by no later than the time that the Yilmazes retained Mr. Romain they knew or ought to have known that they had an occupier’s liability claim against G4S Security. I find that the Yilmazes and their lawyer knew that G4S Security was more than just an after-the-fact witness of the unfortunate incident with the unleashed dog. The lynchpin critical ingredient of the theory of the Yilmazes’ case against G4S Security is that it was an occupier, and in 2012, the Yilmazes and their lawyer knew enough to plead an occupier’s liability case against G4S Security.

[91] The Yilmazes did not need an admission, made by the Condominium Corporation (which it may be observed would not be binding on G4S Security, in any event) to plead in 2014 as they do plead in 2019 in paragraph 4 of the Statement of Claim that:

The Defendant G4S Security (Canada) Ltd. (hereinafter referred to as “G4S Security”) … At all material times, this Defendant owed the Plaintiff a duty of care as it was responsible for providing concierge and/or security services at the subject premises in order to, inter alia, enforce and encourage compliance with Condominium Corporation Rules, By-Laws and security requirements, including unwritten rules and common sense requirements such as those requiring dogs to be on leash while on the premises, deter security breaches by being visible at all times, be available to respond promptly and effectively to any security breaches or dangers on the premises and specifically to ensure that patrons are safe from unauthorized pets that are or are permitted to be loose in the common area of the premises.

[92] It may be observed that this pleading does not depend on the Yilmazes having the Post Orders or the attached schedules to the Concierge Security Services Agreement with the Condominium Corporation. The Yilmazes - to this day - do not have the Post Orders or the attached schedules. They did not need those documents to plead an occupier’s liability claim against G4S Security.

[93] The Yilmazes’ claim is based on a common law duty of care codified by the Occupiers’ Liability Act and while that claim may be assisted by the delineation of G4S Security’s contractual obligations to the Condominium Corporation, their claim does not depend on what G4S Security’s contractual obligations are to the Condominium Corporation. The Yilmazes were not in a contractual relationship with G4S Security and the crux of the Yilmazes’ common law and statutory claim is that a concierge, as such, has a common law duty of care to invitees to a condominium that employs the concierge. The Yilmazes knew in 2012 that G4S Security was the concierge at the condominium where the dog attack occurred.

[94] The Yilmazes also knew, without the necessity of seeing the terms of the agreement between G4S Security and the Condominium Corporation that G4S Security was providing security services. The uniforms of the persons at the concierge desk in the lobby plainly stated “G4S Security.”

[95] Further, as foreshadowed in the facts section above, in regards to my findings that the Yilmazes both knew and ought to have discovered their claim against G4S Security: (a) in 2012; (b) around the time of Mr. Field’s correspondence in the fall of 2015; and (c) around the time of the exchange of correspondence between Mr. Romain and Mr. Field in the spring of 2016, it should be noted that it is not for a want of due diligence that the Yilmazes and their lawyer ought to have known that the limitation period was running to assert a claim against G4S Security and that the claim would be statute-barred two years after the presumptive discovery (and in my opinion, subjective discovery of the claim).

[96] Save for perhaps taking the simple step of communicating with G4S Security rather than seeking information from the sometimes uncooperative or less than forthcoming Condominium Corporation, the Yilmazes and their lawyer did exercise due diligence, but they failed to connect the dots from information to comprehension.

[97] While understandable, it is a wilful suspension of knowledge for them to now say that they did not subjectively and objectively know what they actually knew and what was not hidden from knowing. If there was any hiding, which I find not to be the case, it was a hiding in more than plain sight.

[98] In the immediate case, the problem the Yilmazes’ have in contradicting (proving to the contrary) the presumption of discovery is not a problem of want of trying to have knowledge, it is a problem of not recognizing that they already had adequate knowledge. The Yilmazes and their lawyer are like the character (Monsieur Jourdain) in Molière’s Le Bourgeois Gentilhomme, who knows without appreciating what he or she knows until it is pointed out to them.[^30]

[99] Their problem is one of not recognizing that in 2017 they already knew all they needed to know to plead as they pleaded in 2019 that G4S Security owed the Yilmazes a duty of care because it was responsible for providing concierge and/or security services at the condominium.

[100] Cases about the running of limitation periods are fact specific to their particular facts, but the situation of the Yilmazes in the immediate case is somewhat similar to the situation of the plaintiffs in: Cote v. Ivanhoe Cambridge I Inc.,[^31] Elliot v Gallean Capital Partners Inc.,[^32] and Bergen Jr. v. Estate of Fast,[^33] who were held to have discovered their claim for the absence of due diligence in the face of known facts.

[101] It is, however, worth repeating that the discovery of a claim for the purposes of the commencement of the running of a limitation period is very fact specific and that in the immediate case, I do not find that there has been a failure of due diligence. My findings are rather that a person in the circumstances of the Yilmazes would have sufficient knowledge objectively to have discovered his or her claim against G4S Security.

[102] It appears that the Yilmazes’ counsel, however, was seeking the perfect knowledge of a winnable claim against G4S Security. However, as noted above, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; rather, discover occurs when the prospective plaintiff has or ought to have had, knowledge of a potential claim, which is the threefold situation in the case at bar.

[103] In regard to the circumstances of the immediate case, it is necessary to mention the very recent decision of the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick.[^34] The Grant Thornton LLP case concerns New Brunswick’s Limitation of Actions Act,[^35] which has statutory language that is similar to sections 4 and 5 of Ontario's Limitations Act, 2002 and the Supreme Court’s decision has been adopted and followed in several Ontario cases.[^36]

[104] In Grant Thornton, Justice Moldaver, for the Supreme Court, discussed the measure of knowledge necessary to begin the commencement of a limitation period, and he stated at paragraph 42 that a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a “plausible inference of liability” on the defendant's part can be drawn.

[105] At paragraphs 45-47 of the judgment, Justice Moldaver illuminated the meaning of plausible inference of liability as follows:

Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known. In this particular context, determining whether a plausible inference of liability can be drawn from the material facts that are known is the same assessment as determining whether a plaintiff "had all of the material facts necessary to determine that [it] had prima facie grounds for inferring [liability on the part of the defendant]" (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583, at para. 7; see also para. 8, quoting Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 30). Although the question in both circumstances is whether the plaintiff's knowledge of the material facts gives rise to an inference that the defendant is liable, I prefer to use the term plausible inference because in civil litigation, there does not appear to be a universal definition of what qualifies as prima facie grounds. As the British Columbia Court of Appeal observed in Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242, 11 B.C.L.R. (6th) 217, at para. 77:

As noted in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, some cases equate prima facie proof to a situation where the evidence gives rise to a permissible fact inference; others equate prima facie proof to a case where the evidence gives rise to a compelled fact determination, absent evidence to the contrary. [Citation omitted.]

Since the term prima facie can carry different meanings, using plausible inference in the present context ensures consistency. A plausible inference is one which gives rise to a "permissible fact inference".

The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation. This accords with the principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists. At the same time, requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or "perfect knowledge" (De Shazo, at para. 31; see also the concept of "perfect certainty" in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 8 Alta. L.R. (3d) 379, at para. 8). Indeed, it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83, at para. 213, citing Peixeiro, at para. 18).

In my respectful view, endorsing the Court of Appeal's approach that to discover a claim, a plaintiff needs knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim, would move the needle too close to certainty. A plausible inference of liability is enough; it strikes the equitable balance of interests that the common law rule of discoverability seeks to achieve.

[106] In the immediate case, in 2012 and again in 2015, and 2016 and before the discoveries in 2017, the Yilmazes had enough knowledge to have a plausible inference that G4S Security was liable for the unfortunate incident with the dog in the condominium in which G4S Security was the concierge.

[107] Because of my conclusions that the Yilmazes did not rebut the presumption that their claims were discovered in 2012, there claim is statute-barred, and it is not necessary to address the parties’ opposing arguments about whether or not G4S Security would be prejudiced by being joined as parties to the 2013 action or by allowing the 2019 action to proceed.

3. Conclusion

[108] For the above reasons, G4S Security’s summary judgment motion is granted, and I dismiss the action as against G4S Security.

[109] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with G4S Security’ submissions within twenty days of the release of these Reasons for Decision followed by the Yilmazes’ submissions within a further twenty days.

Perell, J.

Released: November 8, 2021

COURT FILE NO.: CV-19-00629368-0000

DATE: 20211108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SUKRAN YILMAZ and HASAN YILMAZ

Plaintiffs

and -

G4S SECURE SOLUTIONS (CANADA) LTD. and JAY KLEIN

Defendants

REASONS FOR DECISION

PERELL J.

Released: November 8, 2021

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Yilmaz v. G4S Secure Solutions (Canada) Ltd., 2021 ONSC 7401

Case Summary

A. Introduction

B. Procedural and Evidentiary Background

C. Facts

D. Is the Case Appropriate for a Summary Judgment?

E. Discussion and Analysis

1. Applicable Law

2. Application of the Law

3. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 4