The Ontario Superior Court of Justice has provided guidance on the interpretation of Reg. 73/20 under the Emergency and Civil Protection Act, R.S.O. 1990, c. E9.
The effect of Reg. 73/20 is to extend all limitation periods under any statute, regulation, rule, by-law, or order of the Government of Ontario, retroactive to March 16, 2020. The effect has extended any running limitation periods by 183 days.
Facts
In this case, the 52-year-old plaintiff broke his ankle when he slipped on an icy sidewalk in from of a post office in Huntsville on December 20, 2017. He observed a broken eavestrough on the nearby Canada Post building causing water to run onto the sidewalk where he fell. He mentioned the eavestrough to his counsel eleven months after contacting them.
This prompted his counsel to put Canada Post on notice. Two and a half months after providing notice, he learned that Canada Post was engaged in winter maintenance of the sidewalk and that subcontractors, Heritage Property Services (“Heritage”) and Always Handy Property Management Ltd. (“Always Handy”) were involved in that activity.
The plaintiff filed a statement of claim on March 6, 2019, against Canada Post, alleging that they allowed water to escape their premises. Canada Post delivered a Statement of Defence and Third-Party Claim against their subcontractor, JLL, in June 2019. JLL delivered a defence to the third-party claim and issued a fourth party claim against its subcontractors, Heritage Property and Always Handy.
Issue
The plaintiff brought a motion to add the third and fourth parties as defendants to the main action. Heritage Property and Always Handy, opposed on the basis that the limitation period had passed.
Held
The motion was dismissed.
Governing Principles
Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 directs the court to allow pleading amendments at any stage in the proceedings unless doing so would cause prejudice that cannot be compensated for by an award of costs or an adjournment.
There are few barriers to proposed amendments, even when the proposed amendments involve adding new parties to a proceeding. However, a party may not be added to an action where the plaintiff lacks a legally tenable claim against that party.
A claim that has expired under the Limitations Act, 2002 is no longer a legally tenable claim.
The third and fourth parties are not “new” parties to this action, but they would be new parties to the main action if the plaintiff’s motion were to succeed.
The basic limitation period applicable to all civil lawsuits in Ontario is two years from the date the claim was discovered. The court must make a number of factual findings when assessing a limitations defence:
- The date of loss, or presumptive date of discovery;
- The actual date of discovery if there is evidence to rebut the presumptive date; and
- The objective discovery date, being the date that a reasonable person with the plaintiff’s abilities and in the plaintiff’s circumstances would have discovered the claim.
The plaintiff bears the evidentiary burden of proving the date of discovery. The evidentiary threshold is, however, low.
The COVID-Adjuster Limitation Period
On March 20, 2020, the Ontario government made an order under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, specifically Reg. 73/20, which suspended all limitation periods under any statute, regulation, rule, by-law, or order of the Government of Ontario, retroactive to March 16, 2020. The regulation was in force until September 14, 2020.
In his analysis, Boswell J. accepted the Plaintiff’s position that “the effect of Reg. 73/20 was to extend any running limitation period by 183 days. In other words, all limitation periods subject to the regulation were extended by roughly six months.”
The interpretation of Heritage Property, that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred, was rejected by the Court.
Conclusions
The Court examined the facts and concluded that if the plaintiff had told his lawyers about the broken eavestrough when he reasonably ought to, by the end of January 2018, the series of events that eventually led to his discovery of the involvement of Heritage Property and Always Handy would have resulted in an objective discovery date of April 30, 2018.
The plaintiff reasonably should have discovered his claim against the third and fourth parties by April 30, 2018.
Two years from April 30, 2018, is April 30, 2020, the start for the first COVID-19 pandemic lockdown, and a time when Reg. 73/20 was in effect, suspending all running limitation periods. Therefore, the limitation period to add the third and fourth parties to the main action expired by the end of September 2020.
This motion was heard on June 25, 2021, well past the expiration of the limitation period. As such, the plaintiff’s motion was dismissed.
