Legal Blog

Ultimate Limitation

We read a lot about the 2-year limitation period, much of which deals with when that period commences to run. We do not hear much about the ultimate limitation period of 15 years. Why? Because it has not come up often. The Limitations Act, 2002 was only proclaimed in force as of January 1, 2004 so, to date, not many situations have arisen in which the ultimate limitation period is relevant. One such case was Soetemans v. Design Concrete Systems Ltd., a 2022 Ontario Superior Court of Justice decision.

Relevant Section of Act

s.15(1) – “Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.”

s.15(2) – “No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”

s.15(4) – the s. 15(2) limitation period does not run while (a) the claimant is incapable (physically or mentally) to commence a proceeding, (b) the claimant is a minor, or (c) the defendant either (i) wilfully conceals from the claimant that the defendant caused the loss or (ii) wilfully misleads the claimant as to the appropriateness of a proceedings to remedy the loss.

Translation: unless the claimant can fit within the s 15(4) exceptions, a claimant, who has not commenced a proceeding, is out of luck after the 15^th anniversary of the act or omission – even if the standard 2-year limitation period does not apply to bar the claim. The standard 2-year period may not bar the claim because, for example (i) the claimant never knew about the act or omission or even the loss or (ii) even if the claimant did know, a proceeding would not have been an appropriate means to remedy the loss.

The policy behind the ultimate limitation period is that there comes a time when people should not have to be concerned about what happened in the past. The exceptions to the 2-year limitation period protect against a limitation period passing when a claimant has no knowledge of an injury, but the 15-year limitation period takes effect with far fewer exceptions.

Facts

A hog finishing barn was constructed in 2002. On August 16, 2017, a beam failed and the structure partially collapsed. 77 hogs were killed (sadly, before their time) and the building became incapable of use. The owners commenced an action against the general, the sub that fabricated the precast concrete beams, the engineering firm that provided structural advice, and two individuals that the engineering firm employed at the time.  The owners commenced their action on July 2, 2019, well within the 2-year limitation period (based on discoverability), but outside of the s. 15(2), 15-year ultimate limitation period (in which discoverability is irrelevant) that started January 1, 2004.

The defendants brought a motion for summary judgment, relying on the s. 15(2) ultimate limitation period. The owners relied on s. 15(4), claiming that the defendants wilfully concealed the deficiencies in the structure and that, therefore, s. 15(2) did not apply. In opposing the motion, the owners filed a 2,500-page evidentiary record dealing with the deficiencies in construction, including transcripts of the examinations for discovery, a report of an independent forensic engineer, and affidavits of the owners and their lawyers. On a motion for summary judgment, responding parties are to put their best foot forward or risk losing. The owners put in both feet and added their legs for good measure.

Test

The owners did not have to demonstrate that they would ultimately succeed; they only needed to raise facts and law to demonstrate that their claim involved a genuine issue requiring a trial.

The concept of wilful concealment is akin to fraudulent concealment. In 2019, the Supreme Court of Canada articulated the test for that concept:

“When . . . does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action . . .

. . .

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to unconscionability of taking advantage of a special relationship with the plaintiff. Nor is the doctrine’s application limited . . . to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant . . . While a special relationship is a means by which the defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” . . . In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself. [Emphasis in original].”

To summarise: show me that the defendant has acted unconscionably and the claimants’ action will not be affected by the period during which the concealment continued. Section 15(2) was enacted to protect the person who makes an honest blunder, not one who misrepresents or deceives.

Analysis

For purposes of the motion, the defendants agreed that the judge was to assume construction deficiencies existed. However, they maintained that the owners put forth no evidence to support the allegation that the defendants knew of the deficiencies and hid them from the owners.

The judge reviewed the owners’ affidavits and the evidence of the independent structural expert. The owners swore that they relied on the engineering firm to ensure that the building was built in accordance with the drawings and all applicable construction standards, and report any adverse issues to the owners. The independent expert opined that (i) the fabricating sub improperly designed and constructed the collapsed beam; (ii) the beam did not meet the requirements of the engineer’s drawings; (iii) the collapsed beam and all other beams were not fit for their use in the building; and (iv) the engineer’s site reports did not note any of the visible defects: the bearing of the beams; the changes to the beams; the improper placement of the beams; and the columns not being plum.

In summary, the expert stated that there were ‘glaring’ defects, representations that were ‘plainly false’, and components that did not meet the requirements of the drawings, standards of the Canadian Standards Association, and the Ontario Building Code.

Result

The judge relied heavily on the expert’s report. The judge did not need to decide whether the ultimate limitation period applied; he only needed to decide whether the fraudulent concealment exception on which the owners relied resulted in a genuine issue requiring a trial. To him, it clearly did. The owners laid the evidentiary foundation for the wilful concealment argument that raised a genuine issue. The owners might or might not succeed at trial, but the issue was genuine.

The judge therefore dismissed the motion of the general, fabricating sub, and engineering firm, but allowed the motion of the two individual employees. The contract between the owners and the engineering firm specifically stated that employees acting in the course of their employment duties had no personal liability to the owners if a claim arose.

 

Image courtesy of carlitocanhadas.

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