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Limitations

Canning Construction Limited v. Dhillon 2021 Ont SCJ

A lawyer had failed to perfect the plaintiff’s claim for lien. Ultimately, the defendant went bankrupt and the plaintiff was unable to collect any money. The plaintiff waited until 2019 to commence its action, even after being told by the lawyer in 2014 that the lawyer had failed to perfect the lien. The plaintiff claimed that it had not discovered its cause of action against the lawyer until it finally realised that it would receive no monies under the bankruptcy. The judge disagreed and held that, subjectively, after receiving a statement of affairs of the bankrupt, a reasonable corporation represented by counsel ought to have known that there would not be full recovery. The judge noted that the plaintiff could not say that it was legally inappropriate to bring the action because (i) the plaintiff had not relied on the superior knowledge of the lawyer regarding an attempt to ameliorate the loss, and (ii) although the plaintiff had pursued an alternative remedy to obtain its money, that alternative remedy was not sought against the lawyer, but against a third party.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.