Clients place a considerable amount of trust and confidence in their professional advisors (hereafter referred to simply as “professionals1”) in the belief that, with their professional expertise, a particular outcome may be achieved. When the professional’s acts or omissions cause the client to suffer loss, the client is often faced with the following choice: sue the professional and pursue their legal rights through the courts, or allow the professional to take steps to try and remediate the issue. Clients will often choose to have the professional take steps to ameliorate the loss suffered in the hope that it will be quicker and cheaper than pursuing litigation. In addition, allowing the professional to remediate the problem may seem preferable as it will help salvage the professional working relationship. However, if the professional fails to ameliorate the losses suffered, and more than two years passes from the time the potential claim against the professional was discovered, the client may be faced with the prospect that their claim is out of time.
This blog will examine the circumstances in which ameliorative efforts on the part of professionals might delay the running of the limitations clock.
Section 4 of the Ontario Limitations Act sets out a basic limitation period of two years following the discovery of a claim, after which legal proceedings shall not be commenced. This section must be read together with section 5 of the Act, which sets out when a claim is discovered:
5 (1) A claim is discovered on the earlier of,
- the day on which the person with the claim first knew,
- that the injury, loss or damage had occurred,
- that the injury, loss or damage was caused by or contributed to by an act or omission,
- that the act or omission was that of the person against whom the claim is made, and
- 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
- 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). 2002, c. 24, Sched. B, s. 5 (1).
- the day on which the person with the claim first knew,
Section 5(1)(a) contains what are known as the ‘four limbs’ of the discoverability test. The first three limbs contained in subsections (i), (ii) and (iii) generally accord with the old common law test for discoverability; i.e. when did the plaintiff first know that the injury, loss or damage was caused by the defendant. However the fourth limb of the test, at subsection (iv), addresses the potential unfairness which may result from a rigid application of the basic two-year limitation period and introduces the concept of ‘appropriateness’. The Actprovides that a claim is not discovered until the client first ought to have known that bringing a claim is the appropriate means to remedy their alleged loss.
For a concise review of some of the more prevalent limitation periods in the estates and trusts context, please see this blog authored by my colleague Charles Wagner.
When do legal proceedings become ‘appropriate’ in relation to a professional advisor
The courts have repeatedly acknowledged that the timing as to whether a proceeding is “appropriate” will turn on the facts of each case and the abilities and the circumstances of a particular plaintiff.2 Appropriateness has been defined by the courts to mean the date by which the plaintiff knew or should have known that it would be “legally appropriate” to bring the claim.3 The fourth limb is met at the point when the plaintiff not only knows the factual circumstances of the loss they have suffered, but also knows that “having regard to the nature of the injury, loss or damage”, legal proceedings are the appropriate remedy. It is from this point that the client has two years to initiate the action.4
The exact date will be determined using a fact-based analysis on a case-by-case basis.5 Due to the fact-specific nature of the test, the courts have stated that case law applying the fourth limb is of limited assistance.6
However, a line of authority has developed which states that, where a professional defendant was making good faith efforts to eliminate the loss suffered by the client, a claim will not yet be appropriate and the limitation clock will not begin to run. The following cases are illustrative of this principle:
- The Court of Appeal in Brown v. Baum7 agreed that the limitation period had not commenced during the time in which the defendant (the treating doctor) was continuing to treat the plaintiff to try and ameliorate her condition;
- In Marello v. Coltellaro8, due to the continued good faith efforts of the defendants to rectify construction problems with an in-ground swimming pool and the reasonable expectations of the plaintiffs that the problems would be resolved, the court refused to strike the plaintiff’s amended claim on the basis of a limitations defence;
- Chelli-Greco v. Rizk9 was a dental negligence action. The limitation period for the plaintiff’s claim against the defendant dentist was delayed while the dentist continued to treat the plaintiff in an effort to improve the outcome. The court found that the plaintiff’s delay was based on the dentist’s advice to her that “her failed bridge was not his fault and he would endeavour to repair and remediate the problem; and
- In Presidential MSH Corp10, the Court of Appeal for Ontario held that proceedings should not have been commenced until the accountants had concluded an appeal to the CRA.
A note of caution to the client who seeks to rely on the professional’s ameliorative efforts to delay the running of a limitation period; the courts have held that where the defendant is engaged in ameliorative efforts, those efforts must be conducted in “good faith”. The Court of Appeal in Presidential MSH Corp. v. Marr, Foster & Co. LLP stated:
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.11
Where a client relies on the running of some alternative process, such as an administrative or appeals process, to suspend the discovery of their claim, the date on which that alternative process has run its course or is exhausted must be reasonably certain or ascertainable by a court.12
The circumstances of the client
The client should keep in mind that section 5(b) of the Act provides that the client’s own abilities, knowledge and expertise will be relevant in the discoverability analysis.13 What constitutes reasonable diligence for an unsophisticated client who is heavily reliant upon the professional’s guidance may differ greatly from that expected from a business savvy client who is knowledgeable in that particular industry. The significance of a plaintiff’s “circumstances” was discussed by the Supreme Court in Novak v. Bond,14 CanLII 685 (SCC), (1999) 1 SCR 808] where the court discussed the potential unfairness of requiring a plaintiff to bring an action at the time a claim first materializes:
Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.15
The courts have expressly stated that the ‘appropriateness’ criteria serves to deter needless litigation.16 Generally speaking, where a professional was engaged in “good faith” remediation efforts to resolve or reduce their client’s exposure to injury, loss or damage, the limitation clock will not run during this time. However, the onus is firmly on the client to prove that their delay in bringing an action was as a result of ongoing ameliorative efforts. Section 5(2) of the Act contains a presumption that a person with a claim shall be presumed to have discovered the claim on the day the act or omission on which the claim is based took place, unless the contrary is proved. Where two or more years have passed since the client first suffered damage or loss, the client should be prepared to marshal evidence of their professional’s efforts to ameliorate the loss and damage and the client’s reliance on those efforts.
- “Professionals” for the purposes of this article refers not only to those in the ‘established professions’ such as medical doctors, lawyers, accountants, architects, engineers etc., but any person who undertakes work for a client and who holds themselves out as having some specialized knowledge or skill in a particular area (e.g. skilled construction) ↵
- Presidential MSH Corp. v. Marr, Foster & Co. LLP 2017 ONCA 325 (CanLII) at para 19 ↵
- Federation Insurance Co. of Canada v. Markel Insurance Co. of Canada 2012 ONCA 218, 2012 CarswellOnt 4051 at para 34 – This brings me to the question of when it would be “appropriate” to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the Limitations Act. Here as well, I fully accept that parties should be discouraged from rushing to litigation or arbitration and encouraged to discuss and negotiate claims. In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. ↵
- Brown v. Baum2016 ONCA 325 at para. 17 ↵
- Chelli-Greco v. Rizk, 2016 ONCA 489 (CanLII) at para. 3 ↵
- Presidential MSH Corp. at para 18 ↵
- Brown v. Baum 2016 ONCA 325 ↵
- Marello v. Coltellaro, 2013 CanLII 44809 (ON SC) ↵
- Chelli-Greco v. Rizk, 2015 ONSC 6963, affirmed on appeal Chelli-Greco v. Rizk, 2016 ONCA 489 (CanLII) ↵
- Presidential MSH Corp. at paras. 51-53 ↵
- Presidential MSH Corp. at para. 26 ↵
- Presidential MSH Corp. at para. 48 ↵
- 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (CanLII) at para. 44 ↵
- Novak v. Bond, [1999 ↵
- Novak v. Bond at para. 85 ↵
- Presley v. Van Dusen 2019 ONCA 66 (CanLII) at para 17 ↵