Reasons for Judgment

Court File No.: CV-22-00691787-0000
Date: 2025-04-14
Ontario Superior Court of Justice

Between:
Bruce G. Johnston and Judith A. Walker, Plaintiffs / Responding Parties
and
Dave Griffiths as the representative of all members of the United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Terry Snooks as the representative of all members of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and Joe Di Maso as the representative of all trustees of the Plumbing and Pipefitting Workers Local 46 Pension Plan, Defendants / Moving Parties

Appearances:
Richard J. Nixon and Titus Totan, for the Plaintiffs / Responding Parties
David Rosenfeld and Appollonia Mastrogiacomo, for the Defendants / Moving Parties

Heard: March 5, 2025

Callaghan J.

Introduction

[1] The defendants seek to dismiss the plaintiffs’ action on the basis that it was commenced beyond the ultimate limitation period of 15 years as set out in the Limitation Act, 2002, S.O. 2002, c. 24, Sch. B (the “Act”).

[2] Mr. Johnston was a member of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 46 (“Local Union” referring to Local 46 and its predecessor). He was expelled in 1992. He rejoined the Local Union in 2007.

[3] On his retirement in 2021, he began to receive pension payments which he believes are half of what he was entitled to. In this action, he claims, among other things, that he was wrongfully expelled in 1992 from the Local Union and that he has been denied his full pension benefits as a result. He and his wife sued in 2021.

[4] The defendants assert that this action is commenced long after the ultimate limitation period of 15 years in s. 15(1) of the Act has expired and the action ought to be dismissed. The plaintiffs assert that the causes of action only arose in 2021 when the pension payments were due and, in any event, say the action was concealed from them and they were misled by the defendants and thus the ultimate limitation does not apply pursuant to s. 15(4) of the Act.

[5] The defendants also assert that the plaintiffs are in breach of the general two-year limitation period under the Act. However, that issue is not before me. This motion on the ultimate limitation period is proceeding by the order of Justice Myers in advance of any further motions as this motion may be determinative of the action.

[6] For the reasons that follow, I grant the motion and dismiss the action.

Background

[7] There are three defendants:

i) The United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (“UA”) is the international trade union. The UA charters local unions pursuant to its Constitution. The local unions are the members of the UA. Individual members of local unions are not members of the UA.

ii) The Local Union is a member of the UA and represents members engaged in the plumbing and pipefitting trades in the construction industry in the Greater Toronto Area. Mr. Johnston was a member of the Local Union from 1968 to 1992 and from 2007 to 2021.

iii) The Trustees of the Plumbing and Pipefitters Workers Local 46 Pension Plan (the “Plan”) is a multi-employer defined benefit pension plan. The Plan is funded by employer contributions that employers remit pursuant to collective agreements with the Local Union. There are no employee contributions. The Plan was established in 1973.

[8] In 1983, Mr. Johnston and a friend started a plumbing company (the “Company”). The Company was bound by the collective agreement. The Company fell on challenging times and failed to remit the applicable union dues.

[9] In December 1991, Mr. Johnston was informed by the Local Union that his membership had been suspended because the Company stopped paying the dues. He later learned in February 1994 from the Plan that he had been expelled from the Local Union in June 1992. He was never advised by either the Local Union or the UA of his expulsion.

[10] The Plan wrote Mr. Johnston on several occasions starting in March 1994. In those communications, he was advised that due to the applicable Pension Benefits Act, R.S.O. 1990, c. P.8, his pension benefits prior to 1987 were not vested. However, due to legislative changes, the pension benefits from 1987-1992 were vested.

[11] In respect of the vested amounts for 1987-1992, Mr. Johnston was given the choice of receiving a lump sum payout or he could wait to receive a small pension benefit when he turned 55. Follow-up letters were sent from the Plan to Mr. Johnston, but he did not respond. Eventually, the Plan deemed him to have elected to receive the lump sum payout. In April 1995, he received and cashed a cheque in the amount of $923.35.

[12] Mr. Johnston was reinstated in the Local Union in 2007. As he was not a union member from 1992-2007, he did not work on union job sites. As such, there were no employer contributions made on his behalf to the Plan.

[13] On rejoining the Union, he became a member of the Plan. His monthly pension statements received after 2007 showed no accruing benefit for the period from 1973-1992.

[14] Beginning in December 2013, Mr. Johnston began to write the Plan questioning his pension contributions. He asserted that he had been wrongly expelled from the Local Union. He claimed that the Local Union did not follow its Constitution when it purportedly expelled him. He received some support by others who believed he was expelled in error for the delinquency of his Company. However, he could not persuade the Local Union to retroactively reinstate him back to 1992 or to recognise his pension benefits back to 1973.

[15] He retained counsel in 2016. He complained to the Financial Services Commission of Ontario (“FSCO”). It reviewed his case. In a decision in January 2016, FSCO held that because of his being expelled in 1992, his eligibility in the Plan was terminated. His benefits prior to 1987 never vested and he had been paid the lump sum for the period 1987-1992. As a result, he was advised by FSCO that he was “not entitled to pensionable service prior to June 30, 1992”.

[16] Mr. Johnston continued to press the defendants to have his reinstatement be retroactive to 1992 and to recognize the entirety of his service back to 1973 for the purpose of his pension. He was unsuccessful in this campaign.

[17] Mr. Johnston retired from the Local Union on January 31, 2021, and began receiving his pension benefits. His pension benefits did not account for any service prior to 2007 and are said to be half of what he would be entitled to had he been credited with the period prior to and during his expulsion.

[18] The plaintiffs issued their claim on December 16, 2021.

Issues

[19] The issue in this case is whether summary judgment should be granted in favour of the defendants based on the ultimate limitation period.

[20] The plaintiffs submit that the cause of action arose when the first pay-out of the pension occurred in January 2021, so the ultimate limitation period has no applicability to this case. Alternatively, if it does apply, the plaintiffs submit that the defendants concealed or otherwise misled the plaintiffs such that it ought not to apply.

Summary Judgment

[21] Summary judgment is appropriate under r. 20 of the Rules of Civil Procedure where there is no “genuine issue requiring a trial”. The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, para 49 provided the following guidelines as to when summary judgment is appropriate:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[22] If the court concludes there is a genuine issue for trial, the court may use the enhanced fact-finding powers under r. 20.04 (2.1) if appropriate to determine whether the need for trial can be avoided. To do so, there is a two-step process which was summarized by Justice Diamond in Apotex Inc. v. Pfizer Ireland Pharmaceuticals, 2021 ONSC 6345, paras 11-12:

[11] As recently held by the Court of Appeal for Ontario in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, when hearing a motion for summary judgment, the Court must follow the analytical process set out in Hryniak and carefully analyze all the evidence relied upon by a responding party in his/her efforts to show the presence of a serious issue requiring a trial. First, the Court must consider whether there is a genuine issue requiring a trial based on the record alone and without utilizing the enhanced fact-finding powers in Rule 20.04 (2.1) of the Rules of Civil Procedure.

[12] If the Court finds the presence of a genuine issue requiring a trial on the record alone, then the second question is whether the need for a trial can be avoided by using the said fact-finding powers. In his recent decision Oxygen Working Capital Corp. v. Mouzakitis, 2021 ONSC 1907, Justice Myers posed the following (non-exhaustive) questions for the Court to consider at the second stage:

a) Will making findings of fact on the evidence before the court provide a fair and just result as compared to a mini-trial or a trial?
b) Does the material before the court illuminate the factual issue sufficiently to allow the judge to make findings of fact and credibility?
c) Is there something missing that is needed for basic fairness despite the fact that the parties chose not to put that evidence forward?
d) Do considerations of the litigation as a whole mandate some further process before making factual or credibility findings?

[23] The courts have often resolved limitation issues via summary judgment motions: see, for example: Ntakos Estate v. Ntakos, 2022 ONCA 301; Sirois v. Weston, 2017 ONCA 1002; Carone v. Peel Condominium Corporation No. 766, 2016 ONSC 7821, paras 29-30; Tyszko v. St. Catharines (City), 2023 ONSC 2892. Of course, each case turns on its own facts, and particularly the nature of the evidence in the record. Both sides were aware of the requirement to put their best foot forward and there was no suggestion that any additional evidence would be available at a trial.

[24] In this case, while affidavits were filed, there were no cross-examinations of the deponents. The evidence is largely contained in the correspondence that is available, including correspondence from 30 years ago. The real dispute is what inferences and legal conclusions may be drawn from the facts. For example, did the limitation period commence in 2021 or earlier? If earlier, when did it commence? Were there any actions on behalf of the defendants that could be said to have reasonably misled or deceived the plaintiffs? Any facts needed to resolve these issues are documented. While inferences and legal conclusions may need to be drawn, this motion is not one of credibility.

[25] I am satisfied that the necessary inferences to resolve this dispute can be made from the evidence on the record and without the need to resort to the enhanced powers in r. 20.04 (2.1).

[26] I believe that I can make a just and fair determination on the record before me.

The Act

[27] The Act was amended in 2002. At that time, a two-year limitation period was introduced and was predicated on the principle of discoverability. The discoverability principle left parties subject to indefinite liability for acts that would not be discovered for many years. To ensure some finality for defendants, the Act imposed a 15-year ultimate limitation period dating from the act or omission giving rise to a claim and removed the requirement for discoverability: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, para 2.

[28] Before addressing the ultimate limitation period, it is necessary to have regard to the basic limitation period which the plaintiffs assert governs. The basic limitation period of two years is subject to rules of discoverability. A claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability can be drawn. In assessing the plaintiff’s state of knowledge, both direct and circumstantial evidence can be used. A plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. What is required is for 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. To be clear, 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: Grant Thornton LLP v. New Brunswick, 2021 SCC 31, paras 42-46.

[29] The provisions for the basic limitation period are found in ss. 4 and 5 of the Act and provide as follows:

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.

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).

[30] While the Act uses the term “claim”, the courts examine if the plaintiff has discovered or ought to have discovered the required elements of a cause of action. In this regard, the act or omission includes discovery of the wrongful aspect that gives rise to the particular remedy being claimed and for which a proceeding is an appropriate means to seek a remedy: Kaynes v. BP p.l.c., 2021 ONCA 36, paras 36-38.

[31] Section 15 of the Act provides for the ultimate limitation period. The provision is based on the “act or omission”. It does not refer to the cause of action or the discoverability of injury, damage, or loss. That section reads as follows:

15(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.

(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.

[32] The only exceptions to the ultimate limitation period are found in s. 15(4) of the Act. Specific to this case, s. 15(4)(c) provides that the ultimate limitation period does not apply where the defendant wilfully conceals from the plaintiff that loss or damage has occurred or wilfully misleads the plaintiff as to the appropriateness of a lawsuit to address the alleged loss. Those sub-sections read as follows:

(4) The limitation period established by subsection (2) does not run during any time in which,

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

[33] The person relying on the exception bears the burden of demonstrating that the exception applies: s. 15(5) of the Act.

[34] Further, as a result of the operation of the transition provisions in s. 24(5) of the Act, if a claim is not discovered until after January 1, 2004, but the act or omission took place before that date, the ultimate limitation period of 15 years starts to run as if the act or omission had taken place on January 1, 2004: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, para 2.

What Limitation Period Applies and Has It Expired?

[35] In this case, the defendants assert that the plaintiffs were aware of the facts giving rise to this claim in 1994/95 when it received information from the Plan that Mr. Johnston had been expelled from the Local Union. At that time, he was advised of the impact of the expulsion on his pension entitlements. In any event, the defendants submit, even if the plaintiffs did not discover the claim in 1994/95 but after January 2004, the limitation period is deemed to have begun on January 1, 2004, because of the transition provision of s. 24(5) of Act. Therefore, the defendants submit the ultimate limitation period expired no later than January 1, 2019. This claim was commenced in December 2022. As such, in either case, the defendants submit the 15 years has expired.

[36] The plaintiffs’ statement of claim asserts a breach of contract and unjust enrichment. In respect of both claims, the plaintiffs assert that the damages did not arise until the Plan withheld the pension benefits in 2021. The plaintiffs submit that it was only at that stage that the causes of action arose and that the action was therefore commenced within the two year limitation period.

[37] The plaintiffs also assert that the Local Union did not follow the Constitution and therefore the expulsion was void ab initio. As a result, the plaintiffs argue that if the expulsion is void from the outset then no limitation period would apply.

Unjust Enrichment

[38] In the case of unjust enrichment, the cause of action requires a) an enrichment to the defendant; b) a corresponding detriment to the plaintiff; and c) an absence of a juridical reason for the enrichment: Kerr v. Baranow, 2011 SCC 10, paras 36-45. It is said that the benefit and corresponding deprivation occurred when Mr. Johnston received his pension benefits in 2021.

[39] As mentioned, the payout to Mr. Johnston was governed by the Pension Benefits Act as it appeared in 1992 when he was expelled. At that time, there were specific qualifications for being entitled to deferred pension on termination. Under the Pension Benefits Act, if the pension related to the period prior to 1987, the employee had to have worked for 10 years continuously and be over the age of 45 at the date of termination: s. 36(2) of the then Pension Benefits Act. There is no issue that Mr. Johnston did not meet these criteria. For the period after 1987, a terminated member only needed to work for 24 months: s. 37(2) of the then Pension Benefits Act. Mr. Johnston met this criterion and was entitled to a benefit for this period. He received a lump sum payout in 1995 for the period 1987-1992.

[40] For the period 1973-1987, the facts giving rise to the alleged unjust enrichment claim were known to Mr. Johnston in 1994. The correspondence in 1994 clearly advised Mr. Johnston that because of the expulsion, he lost that portion of his pension attributable to the period 1973-1987 due to the provisions of the then Pension Benefits Act. Any “benefit” or “enrichment” to the Plan occurred at that time as the Plan retained the funds without any obligation to pay Mr. Johnston either a lump sum or a future benefit. The loss or detriment to Mr. Johnston also crystalized at that point as he was aware no current or future benefit would be provided by the Plan. Moreover, any benefit or enrichment to the Plan was for a juridical reason, being the legislation that denied Mr. Johnston an entitlement to any benefit. As such, all elements of the cause of action, as well as the juridical reason for the alleged benefit and detriment, were known to Mr. Johnston as of 1994.

[41] In respect of the amounts from 1987-1992, Mr. Johnston received and cashed the pay-out cheque sent by the Plan in 1995. If there was a claim, it would have crystalized at that time as all the facts necessary to start a claim were known to Mr. Johnston. However, there was no benefit retained by the Plan as Mr. Johnston received the pay-out in a lump sum which represented the value of his pension for that period. Given there was no benefit retained by the Plan, I do not see how this claim could succeed in any event.

[42] To the extent that the plaintiffs seek pension benefits for the period 1992-2007 when he was not a union member, there were no employer payments remitted to the Plan for Mr. Johnston as he no longer worked on union jobs and, as such, there was no contribution received by the Plan for his benefit. Again, if there is such a claim, Mr. Johnston was aware as of 1992 that he was not working on union jobs and that no contributions were being made towards the Plan for his benefit. As such, after becoming aware of his expulsion, he was aware of all the necessary facts that constitute his claim. However, as there was no benefit to the Plan in terms of employer contributions, I fail to see how this action could ever succeed as the Plan was never enriched at the expense of Mr. Johnston.

[43] All the facts needed to advance the unjust enrichment claim were known or discoverable by Mr. Johnston at the time of his expulsion. As the acts or omissions on which the unjust enrichment claim is based took place more than 15 years ago, the ultimate limitation period has expired.

Breach of Contract

[44] In the case of the plaintiffs’ breach of contract claim, the plaintiffs assert that the actions of the defendants amounted to an anticipatory breach. The plaintiffs assert that they did not accept the breach and were insisting on performance by the defendants. It was only when the pension benefits were received in 2021 that the actual breach occurred. Under this scenario, it is submitted that the cause of action arose in 2021, the two year limitation period has not expired, and the ultimate limitation period has no applicability.

[45] In this regard the plaintiffs rely on Robin Boys et al v. Shoppers Drug Mart Inc., 2013 ONSC 7026. In that case, the plaintiff was a member of the defendant’s pension plan. As a result of changes in the plan, unlike in this case, the plaintiff was not provided an option by the defendant whether to take the lump sum or a deferred pension amount. He was given a lump sum which he took “under protest”. It was said that the cause of action arose not when he received the notice of the lump sum payment but when the pension became due. The court relied on the Manitoba case Dinney v. Great-West Life et al., 2007 MBQB 120; aff’d 2009 MBCA 29. In that case, the issue involved an entitlement to disability benefits. It was said that no cause of action arose until the payment was not made. The court said:

[15] … I appreciate that disability benefits are not pension benefits but in my view the principle is the same, namely that the payments are periodical and no cause of action for the enforcement of the payments can arise until they fall due and are wrongfully refused. That goes back to what was said by Osler J. (supra) that the date upon which a cause of action arises is the date upon which every element of that cause first exists and that there must be in existence entitlement to the benefit and refusal or failure by the defendant to pay it. In the case of the pension benefits, there is certainly an eligibility for the pension which arises upon retirement and continues for life but there is no entitlement to the actual receipt of the pension benefits until the appointed due dates have come and gone and they have been wrongfully withheld by the company. [Emphasis added.]

[46] As seen from the quote, the rationale in the case was that the cause of action does not arise on periodic payments until the payment falls due.

[47] This type of case has been subject to further review in recent years by the Ontario Court of Appeal under the rubric of “rolling limitation periods”. Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518, para 29 was the most recent case to address rolling limitation periods. In assessing the applicable limitation period and whether it had expired, the Court recognised the first thing to be done is to determine the nature of the breach. In dealing with rolling limitation periods such as periodic payments, the court cited Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635, para 35, where the court said the issue is “not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in another breach of contract beyond the original breach by failing to comply with an ongoing obligation [Emphasis from Karkhanechi]”.

[48] The court in Karkhanechi explained at para. 29:

[29] In this context, it is important to remember that “a cause of action accrues once damage has been incurred, even if the nature or the extent of the damages is not known”: Pickering Square, at para. 33. That being borne in mind, once the plaintiff has sustained a loss from a breach of contract, and the plaintiff knew or had the means of knowing that there would be ongoing damage arising from that breach, there is no basis for applying rolling limitation periods relating to that ongoing damage. This is in keeping with the aim of limitation periods to “balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs”: York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 2. [Emphasis added.]

[49] The court went on to consider the concept of how an alleged anticipatory breach would fit within the concept of a rolling breach. The Court commented as follows at para. 32:

[32] An anticipatory breach occurs when a party repudiates a contractual obligation before it falls due: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201, para 258. Where this occurs, the innocent party need not sue immediately, but can wait before suing until the promised performance fails to materialize: Elgin Mills, at paras. 259-260. In contrast, the principles I have described apply after a breach has occurred, where a party has already sustained a loss from that breach, and that party has or ought to have the material knowledge required to commence an action that will encompass the loss or damage that will arise from that breach. In my view, the law of anticipatory breach was never intended to arm plaintiffs with the option of purportedly rejecting a breach of contract that has already occurred in the expectation that this will extend limitation periods to allow for delayed lawsuits relating to identifiable damages that arise from the breach but have yet to materialize. [Emphasis added.]

[50] On the plaintiffs’ theory, the damages only crystalized when the pension benefits were not paid. I disagree. As a result of the expulsion, Mr. Johnston was aware that he lost his pension benefits from 1973-1987 and he received the payout for 1987-1992. To the extent that the defendants breached their duty of care to the plaintiffs, it occurred upon expulsion which altered these pension entitlements. The damages, if any, were identifiable by 1995, being the time when Mr. Johnston cashed the payout and by which time he was aware there were no further benefits being paid. There was no further breach in 2021. To the extent the failure to pay in 2021 can be considered damages, that loss was clearly identifiable in 1994/95 and it was known that the loss would not materialize until Mr. Johnston retired.

[51] To accede to the plaintiffs’ argument would be to extend the limitation period in circumstances where the plaintiffs had all the “material knowledge required to commence an action that will encompass the loss or damage” claimed in this action. Indeed, on the facts of this case, it could hardly be anticipated that Mr. Johnston would rejoin the Local Union in 2007. According to the anticipatory breach theory, the convenience of his retirement in 2021 creates a supposed triggering date. However, had he not rejoined the Local Union, there would be no triggering date. Under the plaintiffs’ anticipatory breach theory, having not accepted the breach, he could sue at any time, even though he was aware of the basis of the claim in 1994/95. In such circumstances, the limitation period would be unbounded. This is contrary to the objective of the Act.

[52] In my view, the acts or omissions on which the contract claim is based took place more than 15 years ago and the ultimate limitation period has expired.

Void Ab Initio

[53] In asserting the expulsion was void ab initio, the plaintiffs rely on cases dealing with elected union executives who were removed from office in circumstances that did not comply with the union constitution: Butt v. Naimpoor et al., 2014 ONSC 35; Bell et al. v. Stang and Telecommunications Workers Union, 2006 BCSC 998. In my view, these cases do not assist as they are distinguishable. Neither case addressed the impact of limitation periods. Moreover, the results in both actions were declarations that the actions by the Union were void. Such limited relief with nothing further would not be subject to a limitation period. The Act specifically provides there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”: s. 16(1)(a) of the Act. In this case, the plaintiffs seek consequential relief, being an increase to Mr. Johnston’s pension benefits.

[54] Mr. Johnston knew he was expelled by 1994. While he later learned in 2013 that some others took the view that he was expelled contrary to the Constitution, he was always of the view that he was wrongly expelled at that time. For example, in 2014 he wrote the UA: “… my suspension of membership was based on an outstanding debt owed by Bruce Johnston Mechanical Ltd. which I argued back then. I complained that it was the company not me that owed the union benefit remittance and that I should be permitted to continue to pay dues [Emphasis added]”. As already explained, he was also aware in 1994/95 that his pension had been adversely affected by the expulsion when he received the notices from the Plan. Any additional facts could easily be learned by modest due diligence, including whether the Constitution was followed.

[55] In my view, by 1994/95, Mr. Johnston was aware of sufficient facts or with due diligence could become aware of the facts that he had a cause of action arising from his expulsion. As such, the acts or omissions on which this claim is based, being the expulsion contrary to the Constitution, took place more than 15 years ago.

Was There Concealment Under s. 15(4)(c)?

[56] In the alternative, the plaintiffs argue that the exceptions in s. 15(4)(c) apply. The exceptions provide that the limitation period does not run for the period where the defendants willfully concealed that the loss or damage had occurred, that it was caused by or contributed to by an act or omission of the defendants or that the defendants willfully misled the plaintiffs that an action was an appropriate means of remedying the injury.

[57] The onus is on the plaintiffs to establish the willful concealment or that the defendants willfully misled them. In such circumstances, the limitation period is tolled until the plaintiff learns about the concealed facts (either from the defendant or in some other way): Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, para 109.

[58] The exceptions in s. 15(4)(c) are to be considered in light of the Supreme Court of Canada’s decision in Pioneer Corp. v. Godfrey, 2019 SCC 42, where the Court addressed the common law concept of fraudulent concealment. At one time, the law required there to be a special relationship between the defendant and the plaintiff for fraudulent concealment to apply. The Supreme Court made it clear that while a special relationship may assist in establishing the grounds for fraudulent concealment, the focus is on the conduct in question. As Justice Brown put it in Pioneer Corp.:

[61] Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action. This was the Court’s point in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, para 39:

[59] [Equitable fraud] “. . . refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained” (p. 37). Fraud in the “wider sense” of a ground for equitable relief “is so infinite in its varieties that the Courts have not attempted to define it,” but “all kinds of unfair dealing and unconscionable conduct in matters of contract come within its ken” . . . [Emphasis added.]

[60] It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of taking advantage of a special relationship with the plaintiff. Nor is the doctrine’s application limited, as my colleague suggests, to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant (paras. 171 and 173-74). While a special relationship is a means by which a defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” (M. (K.), at p. 57, citing Halsbury’s Laws of England (4th ed. 1979), vol. 28, at para. 919). In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself.

[61] In this case, the plaintiffs allege that when they raised the concern about the improper expulsion and the impact on the pension in 2013, they were given the “run around” and sent on “a wild goose chase”. As I have already opined, there is no doubt that Mr. Johnston knew as early as 1994-95 that he was expelled from the Local Union, believed his expulsion to be wrong and was aware that the expulsion adversely affected his pension entitlements. In my view, there was no concealment by the defendants of his cause of action.

[62] The first formal complaint by Mr. Johnston was not until 2013. There is no suggestion that he was misled prior to 2013. After that time, Mr. Johnston was trying to reinstate his membership in the Local Union retroactive to June 30, 1992 “so as to avoid losing my … pension”. It is suggested that the defendants, in giving him the run-around, misled him that an action was not the appropriate remedy. In my view, the facts establish otherwise. As early as March 2013, Mr. Johnston states he met with John Bonwick of the UA who he advised him that he “should retain legal counsel to help me with my concerns.” This was confirmed in June 2014, when Mr. Johnston wrote to the UA that:

“Approximately two months later I met with Mr. Bonwick [of the UA] again and he suggested that I would need a lawyer to handle my concerns. He also suggested that any further discussion about my concerns would have to be in writing.”; and
“On February 4, 2014 I received a letter containing no answers and again suggesting that it should be handled by legal counsel.”

[63] As evident from the correspondence, the UA specifically advised him to consider retaining counsel in 2014. Indeed, by 2016, he had hired counsel who questioned the expulsion and asserted that the expulsion had adversely affected Mr. Johnston’s pension entitlements. The correspondence and the suggestion that Mr. Johnston retain a lawyer demonstrate that there was no misleading Mr. Johnston as to the appropriateness of an action to vindicate his rights. Nowhere was there a communication by the defendants advising or misleading Mr. Johnston that he ought not to consider an action.

[64] Nor is there any communication concealing the loss of any pension benefits. His loss was plainly told to him in 1994/95. It was obvious from his monthly statements when he rejoined the Local Union that he had no accrued pension rights prior to 2007. The plaintiffs point to communication by FSCO in 2015 that told him to wait for his pension to kick to see if he received his anticipated pension benefits. FSCO is not the defendants. Indeed, on September 22, 2015, the Plan wrote FSCO, and denied that Mr. Johnston was entitled to pensionable service benefits prior to August 1, 2007. FSCO concluded in 2016 that nothing was owing for the period prior to 1992.

[65] Having reviewed the affidavits and the contemporaneous correspondence, I see nothing in the record that would suggest that the defendants concealed from Mr. Johnston that his pension did not include benefits prior to 2007.

[66] In my view, the evidence establishes that the defendants did not willfully mislead the plaintiffs as to the appropriateness of a proceeding to address his expulsion or loss, nor did they willfully conceal any alleged loss to his pension entitlements.

Conclusion

[67] The motion is granted. The action is dismissed.

[68] Any party seeking costs may submit a request in writing of no more than five pages, along with a bill of costs and any offers, within seven days of the release of this decision. Any party responding may file a responding submission of the same length within one week thereafter.

Callaghan