Beniuk v. Leamington (Municipality) 2020 Ont CA
Owners complained that use of a roadway caused damage to their house. They commenced a proceeding against the municipality before the Ontario Municipal Board and were unsuccessful. After that decision, they commenced a civil action claiming damages for nuisance and negligence, but did so more than 2 years after they commenced their proceeding before the OMB. The court first ruled that the regular 2-year limitation period applied rather than the 10-year limitation period under the Real Property Limitations Act. The court held that a negligence claim involving real property was very different from a claim to an interest in land and therefore the RPLA did not apply. The Court did reference cases in which a constructive trust claim and a fraudulent conveyance claim were held to fall within the RPLA. The court also held that, just because alternative processes were available, this did not, in itself, suspend the running of the limitation period. Although under some circumstances, it is appropriate to extend the limitation period, s5(a)(a)(iv) of the Limitations Act 2002, dealing with whether it is appropriate to commence a proceeding, does not necessarily permit a party to engage in litigation in stages for the same wrong. It is incumbent upon the claimant to explain why its approach was reasonable.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.