Talia Gordner

The defendant moved to strike the claim as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The court found the claim was not frivolous or vexatious but constituted an abuse of process because the conspiracy and fraud claims were substantially identical to those in a pending "Weeks Action," and the plaintiffs commenced a new action instead of seeking leave to amend the existing one.

The court declined to strike the action entirely, instead staying the proceeding to allow the plaintiffs to seek leave to add the defendant to the "Weeks Action." The stay could be lifted if the plaintiffs were unable to add the defendant due to prejudice or limitation periods arising after this action's commencement.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.