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#18933
TOO LATE ? REASONABLE RELIANCE trumps 'TOO LATE TO SUE' shield - PRESLEY v VAN DUSEN 2019/02/09 11:40  
( This is not legal advice, which should always be obtained from Law Society of Ontario registrants.)

A (non-condo) FACTUALLY SIMPLE DEFICIENCY CLAIM goes into a Twilight Zone. So much for consumer-friendly access to justice. Why did it even have to be fought all the way into Ontario's Court of Appeal ! ?

1 - Unresolved civil claims face "timeliness" deadlines that - totally regardless of merits or evidence - risk getting quashed upfront as “untimely”. Why is this shielding so widespread ?

Memories weaken; evidence fades or never was adequately memorialized howsoever; claimants seen needing to be pressured to expedite; otherwise complicates business valuations & diligence ; "wrongdoers deserve eventual peace of mind ( "repose" )!"; . . . etc. One U.S. commenter asks : "How would you feel about getting a parking ticket allegedly for an offence six years ago ?" ( This septic deficiency of course is no parking ticket )

MISSED DEADLINES to start litigation, arguably may help to purge historical "clutter" like a relief valve, sewer or the septic system disputed here. ie To focus scarce court resources away from sloppy litigants ?

But it's also argued that ( "tolling" ) allowing some legislation–compliant deadline extensions – as re-clarified in this septic system deficiency litigation - arguably may even avoid litigation. ONCA cites that it may encourage parties to work together in good faith on a throrough & timely basis to avoid more court "clutter".

In a starkly straightforward deficiency dispute, the re-clarification of deadlines by Ontario’s Court of Appeal ( ONCA ) in Presley v Van Dusen may be a textbook about Ontario’s 2002 Limitations Act.

Whatever, this underlines how uncertain can be judicial outcomes even in arguably very straightforward matters.

Silently acquiescing in or ignoring deficient performance risks losing remedy without some sort of "tolling agreement" or the way ONCA here applied Ontario's limitations system ( statute ). Those - with respect - may exceed management or Directoral skillsets. There's a need for prompt legal skills.

2 - Presley et al v Van Dusen & L G & L Health Unit Jan 30 2019 ONCA

ONCA VIGOROUSLY OVERTHROWS a pair of “TOO LATE TO SUE” lower court rulings that had quashed the plaintiff homeowners’ deficiency claims about their recently installed but condemned ( ! ) septic system.

( Septic technology ain`t rocket science. Septic systems - like some of my past ones - function properly for MANY decades if - IF - properly used & pumped at correct intervals. Immediately under-performing ! . . condemned at the first Health Unit test as requested by the plaintiffs after remedials fail or are not even attempted despite promises ! . . . Yes & on the other hand : floodplains, misuse , under-maintenance , ultimate biomat end of system's life after many decades etc . . . )

Even with the plaintiffs` counsels vainly protesting the same grounds ultimately re-stated by Ontario’s Court of Appeal ( ONCA ), in lower courts the deficiency claimants may have got – with greatest respect - deafer ears than those whose acts or omissions allegedly caused civil loss.

Critical to this seems to be that the claimants were at least able to factually enough bring forward evidence of "reasonable reliance".

The overthrown judgments commendably show such done well enough to force both levels of lower courts to at least address such in a way that ONCA now holds was "flawed" divurgence from current forceful ONCA jurisprudence and from the legislated timeliness criteria in law and mixed law & fact.

The overthrown judgments disclose what they did NOT do with the critical 4th CONJUNCTIVE criteria legislated applicable to critical final stage of both the ‘actual’ and ‘constructive’ tests !

So NOW - after taking a 3 and a half year trip into a "TOO LATE TO SUE" Twilight Zone - the plaintiff homeowners’ deficiency claim - first filed in August 2015 after their 2010 installed but allegedly malfunctioning system was ultimately ordered totally shut down - ( now ) will be sent back to get its Small Claims consideration for the first time.

3 - Ontario’s Limitations Act, 2002 S.O. 2002, chapter 24 isn’t about purely real property claims ( like squatter claims) under Ontario’s Real Property Limitations Act R.S.O. 1990 c. L.15 .

Nor about deadlines specifically legislated into specialty laws including such Acts specifically exempted within the Limitations Act 2002.

Excerpted Limitations Act, 2002 S.O. 2002, chapter 24

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).

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.

4 - Excerpted Presley et al v. Van Dusen et al 2019 ONCA 66 issued Jan 30/19 http://canlii.ca/t/hx8n5

. . . . [14] The analysis of both the trial judge and the Divisional Court judge of ss. 5(1)(a)(iv), 5(1)(b) and s. 5(2) of the Limitations Act is flawed.

[16] As neither the trial judge nor the Divisional Court judge considered the application of s. 5(1)(a)(iv), it is appropriate for this court to do so.

[17] Subsection 5(1)(a)(iv) serves to deter needless litigation: 407 ETR Concession Co. v. Day, 2016 ONCA 709 (CanLII), 133 O.R. (3d) 762, at para. 48, leave to appeal refused, [2016] S.C.C.A. No. 509.

If a legal proceeding is inappropriate, the start date for the commencement of the limitation period is postponed beyond the date on which the constitutive elements of the claim are discovered: Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325 (CanLII), 135 O.R. (3d) 321, at paras. 17-18.

[18] In Presidential MSH, which I note, in fairness to the trial judge, was decided after the trial in this case, Pardu J.A. reviewed the jurisprudence and distilled and extracted two guiding principles on the effect of assistance by a defendant to eliminate the loss.

[19] First, at para. 20:

[A] legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional himself or herself without recourse to the courts, rendering the proceeding unnecessary.

[20] Second, at para. 26:

Resort to legal action may be “inappropriate” in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the plaintiff, is not engaged in good faith efforts to right the wrong it caused. The defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.

[21] These principles are applicable to the facts of this case.

Van Dusen is licenced to install septic systems. The appellants contracted with him because of his special training and expertise.

While the respondents argue he may not qualify as “an expert professional”, there can be no question he did have expertise upon which the appellants reasonably relied.

[22] Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships: Presidential, at para. 26.

I acknowledge that the previous cases where this court has made a finding that it was reasonable for the plaintiff to rely on the defendant’s superior knowledge and expertise have concerned defendants belonging to traditional expert professions.


[23] Van Dusen initially attempted to fix the problem with the appellants’ septic system by replacing a pump.

He then assured the appellants that the problem could be remedied with a load of sand.

He also assured them that he would attend at their property to fix the problem.

While the appellants might be criticized for not being more insistent that Van Dusen fulfill this assurance more promptly, the evidence establishes that they were engaged in ongoing discussions with him and took actions to enable him to access the property.

He continued to assure them that the problem could be readily fixed and that he would fix it.

The appellants reasonably relied on Van Dusen’s assurances. These assurances led the appellants to the reasonable belief that the problem could and would be remedied without cost and without any need to have recourse to the courts. Section 5(1)(b) is satisfied.

[24] I do not agree with the contention that there was no evidence to rebut the presumption under s. 5(2).

The threshold to displace the presumption in s. 5(2) is relatively low: Miaskowski v. Persaud, 2015 ONCA 758 (CanLII), 393 D.L.R. (4th) 237, at para. 28.

The appellant Frederick testified as to what Van Dusen told him and that he relied on Van Dusen’s assurance that the problem with the septic system was readily fixable and that Van Dusen would fix it.

The trial judge did not consider this evidence and did not consider the s. 5(1)(a)(iv) factor when applying the s. 5(2) presumption.

As the evidence of the appellant Frederick was uncontradicted, I consider that it is sufficient to rebut the presumption under s. 5(2).

[26] In my view, the facts of this case bring it within the category of cases contemplated by s. 5(1)(a)(iv).

I am satisfied that in the circumstances of this case, the appellants did not know, and that, as required under s. 5(1)(b), a person in their situation would not reasonably have known, that a proceeding would be an appropriate means to seek a remedy until, at the earliest, the winter of 2014.

There is evidence they still reasonably expected Van Dusen to come up to this point. There were discussions in the spring of 2014 regarding excessive mud that prevented Van Dusen from doing the remedial work, and in the winter of 2014 the appellants ploughed snow to give Van Dusen access.

[27] As the action against Van Dusen was commenced in August 2015, it was well within the prescribed two-year period and was not statute barred.


. . . [30] This interpretation is consistent with the purpose of s. 5(1)(a)(iv) this court identified in 407 ETR, at para. 48, namely to deter needless litigation.

[32] Accordingly, I would allow the appeal and remit the matter to the Small Claims Court for determination on the merits against both respondents.

[33] The appellants are entitled to their costs of the appeal fixed at $15,000 inclusive of disbursements and taxes. . . ( unquote )

- Ontario`s Court of Appeal in Presley et al v. Van Dusen et al 2019 ONCA 66 issued Jan 30/19 http://canlii.ca/t/hx8n5
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#18934
timeline : PRESLEY v VAN DUSEN 2019/02/10 19:16  
timeline of Presley v Van Dusen

2010 DEFENDANT SEPTIC CONTRACTOR Van Dusen installs plaintiffs`new septic system inspected and approved by L&G & L Health Unit.

Seasonal failures start ( smells; ultimately effluent visible ). Van Dusen replaces pump , pleads precipitation levels but despîte alleged reassurances never follows through on repeated commitment(s) over several years to add gravel ( presumably to enlarge & buffer the leaching bed ( ie whether effluent breakdown trumped by winter cold or fall water levels . . )

April 2015 prudently avoiding winter & witnessing spring problem PLAINTIFFS first obtain Health Unit inspection which ends with condemnation Order June 1 2015 shutting down the entire septic system.

Aug 2015 plaintiffs file Small Claims negligence lawsuit ( likely in Brockville ) against installer Van Dusen & later add Health Unit approvers Jan 2016.

Feb 2 2017 ( unreported ) Dep Judge Brockville lawyer XXX turfs the plaintiffs' negligence suit as too late because he finds it "discovered" spring 2013. Said to cite that he ignored Limitations Act ss 5 1 a iv despite objections by counsel because claims able find 5 1b constructive discoverability retroactively trumps 5 1 a iv ! and not rebutted under 5(2) !

Nov 8 2017 ( recent Federal ONSC appointee - experienced & well respected practitioner ) Madam Justice YYY as Divisional appeal adjudicator upholds XXX's Small Court ruling same grounds.

Her judgment at canlii CITES NONE OF THE "REASONABLE RELIANCE" jurisprudences ( Apr 2017 Presidential ; 2012 Kudwah ; 2016 407 ETR ) used by ONCA to VIGOROUSLY overturn BOTH in 2019. . . . .

Jan 30 2019 8 or more years after original installation ONCA strikes down both "TOO LATE TO SUE" lower decisions[/b] , awards $ 15 K costs to plaintiffs, and sends revitalized claim back for trial to Small Claims . . .
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#18936
Alberta condo corp hurdles "TOO LATE TO SUE" shield ( Condo Corp # 0812755 v IBI Group ) 2019/02/22 01:13  
Again NOT legal advice :

Issued the same day as Ontario's Presley v Van Dusen, an Alberta civil functionary's judgment has ALSO struck down a TOO LATE TO SUE shield erected against a CALGARY CONDOMINIUM CORPORATION'S DEFICIENCY CLAIM.

The Calgary condo corporation had begun early reliance on litigation-avoiding remedial attempts by its developer & warranty company. ( These outcomes arguably warn that such risk had best follow a credible, "reasonable", properly-documented route under credible legal oversight if there's comparatively a lot at stake . . . . The cost to remedy water infiltration is cited $ 375 K ten years ago )

But eventually those just hit the wall . .

Later adding an arms-length defendant arguably in shortfall of critical professional oversight during original construction, the condo corporation faced its TOO LATE TO SUE upfront defence. ( ie - just like from one or both septic defendants above in the comparatively straightforward Ontario septic dispute above. )

So bottom line the condo deficiency claim can now resume on its merits against a defendant accused of being the major player in the complained deficiency .

But it has so far taken TEN YEARS for the Alberta group just to reach this point with the mainstream merits still untested
. . . How easy was this ?

The Alberta civil functionary - unlike the lower courts in the septic dispute above ! - cites not only Alberta precedent but one of the Ontario judgments cited by ONCA.

( And also clarifies a 4:3 1999 Supreme Court of Canada decision narrowly overturning "TOO LATE" defeats of a patient who fought her cancer bravely instead of immediately suing for alleged mis-reading of a mammogram . . . .

Plaintiff Ms Novak had not been clearly "reasonably relying" on the defendant physician. Did she "poll the deadline" by an exhaustive fighting for her life ( chemo, surgery etc )instead of immediately running off to sue ? . . . ( Novak v Bond 1999 1 SCR 808 ] http://canlii.ca/t/1fqqs )

( from Novak v Bond 1999's prologue summary : " . . . The defendant (appellant) allegedly misdiagnosed a lump on the plaintiff’s (respondent B.N.’s) breast as a benign condition from October 1989 until October 1990 when a specialist diagnosed breast cancer, performed a partial radical mastectomy, and discovered that the cancer had spread to most of B.N.’s lymph nodes.

After recovering from a year of illness and debilitating cancer treatment, the plaintiff considered suing the defendant and discussed the matter with her parish priest.

She decided not to sue at the time, preferring to concentrate on maintaining her health and a positive belief that she had been cured. The cancer recurred four years later (May 1995), this time spreading to the spine, liver and lung. . . . . " )


The Calgary ALBERTA DEFICIENCY dispute : :

Condo Corp 0812755 v IBI Group Inc, 2019 ABQB 75 issued Jan 30/19 http://canlii.ca/t/hx9w9
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