The Facts

Presley v Van Dusen 2019 ONCA 66, involved a septic system installation by the respondent, Van Dusen, for the appellants, the Presleys, in 2010. The Presleys experienced several issues with the septic system in 2010-2011 and 2013. Despite Van Dusen’s promise to return to amend the issues, he failed to do so on various occasions. In June 2015, the local Health Unit condemned the system and issued an order requiring the Presleys to replace the system. 

When did the Presley’s Discover their Claim?

The issue was when the appellants discovered their claim against Van Dusen and the Health Unit within the meaning of the Limitations Act, 2002.

Lower Courts: Claim Barred by the Limitations Act

The trial judge found that a reasonable person would have discovered the claim by the Spring of 2013. The claim was dismissed for being brought after the expiration of the two-year limitation period. The Divisional Court upheld the lower court’s decision. 

Limitations Act 2002, s.5(1)(a)(i)-(iv) and (b) provides that a claim is discovered on the earlier of either the day on which a 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). 

Section 5(2) states that a person is presumed to have known of the loss on the day the act or omission occurred, unless the contrary is proven.

 

On Appeal – Limitation Period Extended by Van Dusen’s Assurances 

The Court of Appeal found that the trial judge failed to consider all four elements under s. 5 of the Limitations Act. Specifically, the trial judge explicitly stated that he was not considering s.5(1)(a)(iv). The Court of Appeal held that a determination under as to the date a reasonable person would have the discovered the claim requires consideration of all four elements referred to in clause (a). The Court of Appeal stressed that the commencement of legal proceedings may not be suitable in cases in cases where a plaintiff has relied on the superior knowledge and expertise of a defendant who engages in efforts to rectify the issue they have caused. In this case, the Presleys relied on Van Dusen’s assurances that he knew how to fix the issues and would do so, which led the Presleys to believe the problems would be remedied without the need for a court action.

Take Aways 

Even if a loss appears to be barred by the two-year limitation period, if the plaintiff had received reassurances from someone with relevant knowledge and expertise, the commencement of the limitation period will be delayed. In such cases, the need for a court action may only become apparent after the promises prove false.   

By Shawn O’Connor, Sasha Willms and Taylor Cuconato (summer student)