Presley v. Van Dusen 2019 Ont CA
The Limitations Act calls for an analysis of all of the components of section 5, including section 5(1)(a)(iv): “having regard to the nature of the … loss…, a proceeding would be an appropriate means to seek to remedy it;” In this case, the installer of a septic tank assured the property owner that the problem with smell could be remedied without cost to the owner. Accordingly, the limitation period did not start to run when the owner noticed the problem; it started to run when the owner realised that the problem was more serious than installer had led him to believe and that he was unwilling or unable to fix it. A previous case had stated that the fact that a defendant assists to rectify a problem does not postpone the running of the limitation period. The Court stated that this concept does not apply if the plaintiff is relying on the superior knowledge and expertise of a defendant, whether the defendant is a professional or simply has that superior knowledge.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.