



COURT OF APPEAL FOR ONTARIO

CITATION: Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005

DATE: 20191220

DOCKET: C66914

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Leslie
    Sosnowski and Theresa Sosnowski

Plaintiffs

(Appellants)

and

MacEwen Petroleum Inc.
and Richard Joseph
    Paul Bourdeau

Defendant

(
Respondent
)

Gustavo Camelino, for the appellants

Porter Heffernan and Joël Rocque, for the respondent

Heard: November 27, 2019

On appeal from the judgment of Justice Helen MacLeod-Beliveau
    of the Superior Court of Justice, dated April 11, 2019, with reasons reported
    at 2019 ONSC 1860.

Hourigan J.A.:

Introduction

[1]

At issue on this appeal is the interpretation of s. 5(1)(a)(iv) of the
Limitations
    Act
, 2002, S.O. 2002, c. 24, Sched. B, the so-called appropriate means
    provision.  That subsection provides that a claim is not discovered until the
    day on which a putative plaintiff first knows that a proceeding would be an
    appropriate means to seek to remedy an injury, loss, or damage.

[2]

The appellant commenced an action for wrongful dismissal approximately
    six years after he was dismissed for cause by his employer, the respondent,
    MacEwen Petroleum (MacEwen). On a summary judgment motion brought by MacEwen
    to dismiss the action as statute-barred, the appellant submitted that he did
    not know if an action was the appropriate means to seek a remedy until related
    criminal proceedings had been resolved. The motion judge rejected the
    appellants argument and dismissed the action. In so ruling, she distinguished
    this courts decision in
Winmill v. Woodstock (Police Services Board)
,
    2017 ONCA 962, 138 O.R. (3d) 641, leave to appeal refused, [2018] S.C.C.A. No.
    39.

[3]

On appeal, the appellant submits that the motion judge erred in
    distinguishing
Winmill
and in finding that he knew before the
    completion of the criminal proceeding that litigation was the appropriate means
    to seek redress. These reasons explain why I would dismiss the appeal.

Facts

[4]

The appellant began working as a fuel delivery truck driver for MacEwen
    in 1996. In November 2009, MacEwen received an anonymous tip that one of its
    drivers was involved in the theft of its fuel. It began an internal
    investigation that ultimately found that the appellant had committed several
    acts of theft.

[5]

On November 9, 2009, MacEwen terminated the appellant for cause. That
    day, the appellant retained counsel, the respondent Richard Bourdeau, who
    requested further details from MacEwen regarding the appellants termination.
    On May 6, 2010, the appellant retained a second lawyer who wrote to MacEwen in
    May and June of 2010, asserting that the appellant had been wrongfully
    dismissed and was entitled to damages. The appellant did not commence an action
    for wrongful dismissal at that time.

[6]

The appellant was criminally charged on July 7, 2010, and convicted on
    August 15, 2011, of three counts of theft and three counts of fraud. He
    appealed his convictions, and this court acquitted him on all counts on
    November 26, 2014. The appellant commenced an action for wrongful dismissal
    against MacEwen and in negligence against Mr. Bourdeau on July 24, 2015.
[1]

[7]

MacEwen brought a motion for summary judgment on the basis that the
Limitations
    Act
barred the appellants action. The motion hinged on whether the
    appellant knew that it was appropriate, for the purposes of s. 5(1)(a)(iv) of
    the
Limitations Act
, to commence a civil proceeding. The motion judge
    rejected the argument that the appellant did not know it was appropriate until
    the criminal proceedings had concluded. She found that the appellant knew, or
    with reasonable diligence ought to have known, that he had a claim against
    MacEwen at the time of his dismissal on November 9, 2009.

[8]

The appellant submits that until the criminal proceedings were
    completed, he did not know if he had a viable claim. If he were ultimately
    convicted, his claim for wrongful dismissal would have had little chance of
    success because it would have been proven beyond a reasonable doubt that he had
    committed multiple thefts against his employer. Therefore, according to the
    appellant, it made sense to await the outcome of the criminal proceeding before
    deciding whether to commence his action.

Analysis

[9]

In considering the appellants argument, I will review the origins of
    the current
Limitations Act
, the jurisprudence regarding the
    appropriate means provision, and this courts decision in
Winmill
. I
    will then apply the relevant legal principles to this case.

(i)

The
Limitations Act

[10]

In 1969, the Ontario Law Reform Commission in its

Report on
    Limitation of Actions

said the following about Ontarios law of
    limitations at that time, at p. 7:

To the lawyer, Ontarios limitation laws are, at the very
    least, perplexing. They introduce an element of hazard into the practice of law
    which is quite unnecessary.

To the ordinary citizen, these laws are beyond comprehension.
    It is he, of course, who really suffers in their application.

[11]

There was widespread acknowledgement in the civil bar even then that
    reform of Ontarios limitations law was long overdue. The patchwork of various
    limitations and the lack of uniformity in how they were interpreted resulted in
    uncertainty both for the bar and the public. Over the course of the next 30
    years, successive Ontario governments made efforts to reform the law. After
    many starts and stops, in 2002, the current
Limitations Act
was passed
    in the provincial legislature. It was heralded as a significant reform of the
    existing law of limitations. It was hoped that the new legislation would reduce
    the number of limitations-related motions and negligence claims against lawyers
    by bringing certainty and consistency to this area of the law.
[2]

[12]

Two of the most significant changes in the new
Limitations Act
were found in ss. 4 and 5. Section 4 introduced a new basic limitation period
    of two years:

4
Unless this Act provides otherwise, a
    proceeding shall not be commenced in respect of a claim after the second
    anniversary of the day on which the claim was discovered.

[13]

In s. 5, the legislature attempted to codify the existing jurisprudence
    on the discoverability of claims and added a new factor to the discoverability
    analysis. That section reads as follows:

5 (1)
A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) 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

(b) 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). [Emphasis added.]

[14]

The new factor was the appropriateness of bringing an action. It was not
    an element of the previous iteration of the
Limitations Act
or the
    common law discoverability rule. It is the interpretation of s. 5(1)(a)(iv)
    that is determinative of this appeal and to which I will next turn.

(ii)

Subsection 5(1)(a)(iv) Jurisprudence

[15]

This courts jurisprudence has developed certain principles for the
    interpretation and application of s. 5(1)(a)(iv).

[16]

First, the determination of whether a proceeding is an appropriate means
    to seek to remedy an injury, loss, or damage depends upon the specific factual
    and/or statutory setting of each case:
Nasr Hospitality Services Inc. v.
    Intact Insurance
, 2018 ONCA 725, 142 O.R. (3d) 561, at para. 46.

[17]

Second, this court has observed that two circumstances most often delay
    the date on which a claim is discovered under this subsection. The first is
    when the plaintiff relied on the defendant's superior knowledge and expertise,
    especially where the defendant took steps to ameliorate the loss. The other
    situation is where an alternative dispute resolution process offers an adequate
    remedy, and it has not been completed:
Nasr
, at para. 50.

[18]

Third, Sharpe J.A. in
Markel Insurance Company of Canada v. ING
    Insurance Company of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para.
    34, provided the following guidance concerning the meaning of the term
    "appropriate":

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 a 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 the 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. [Emphasis in original.]

[19]

In other words, appropriate means whether it is legally appropriate to
    bring an action. Appropriate does not include an evaluation of whether a civil
    proceeding will succeed.

(iii)

Winmill

[20]

Winmill
concerned an appellant who was involved in a physical
    altercation with the police. He was charged with assaulting a police officer
    and resisting arrest but was eventually acquitted of both charges. After his
    acquittals, the appellant issued a notice of action and then a statement of
    claim seeking damages for negligent investigation and battery.

[21]

The respondents brought a motion for summary judgment to dismiss the
    appellants claim on the basis that it was commenced two years and one day
    after the police altercation, and thus he had missed the limitation period by
    one day. The motion judge found that the claim for negligent investigation
    began to run on the date the appellant was acquitted. However, she dismissed
    the claim for battery because the limitation period ran from the date of the
    altercation with the police.

[22]

In
Winmill
, the majority of this court found that the appellant
    could not determine whether it was appropriate to bring an action until he knew
    the outcome of the criminal proceedings. The court stated at para. 33 that the
    criminal charges of assault and resisting arrest against the appellant and his
    tort claim of battery against the respondents are very close to being two sides
    of the same coin or mirror images of each other. Accordingly, the order
    dismissing the battery claim was set aside.

(iv)

Application of Principles

[23]

As noted, the determination of whether a civil proceeding is an
    appropriate means depends upon the specific factual and/or statutory setting of
    each case. In
Winmill
, the majority held that the civil claim and the
    criminal charges were two sides of the same coin. That finding was presumably
    made on the basis that the civil claim involved determining the appropriateness
    of the conduct of the police, who were also closely involved with the criminal
    charges. That makes
Winmill
distinguishable from the facts of the
    present case, where the polices conduct is not the subject of the civil
    proceeding. In my view, therefore, the motion judge did not err in
    distinguishing
Winmill
. The issue that remains is whether the motion
    judge otherwise erred in her analysis of s. 5(1)(a)(iv).

[24]

The appellant relies on
407 ETR Concession Co. v. Day
, 2016
    ONCA 709, 133 O.R. (3d) 762, in support of his position. However,
407 ETR
was an example of a case where an alternative administrative means of settling
    the dispute had not been completed. It has no application to the case at bar,
    where there is no alternative process.

[25]

The appellant also relies on the following statement in
Novak v.
    Bond
, [1999] 1 S.C.R. 808, 63 B.C.L.R. (3d) 41, at para. 85:

Litigation is never a process to be embarked upon casually and
    sometimes a plaintiffs 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. [Citation omitted.]

[26]

The factual and statutory context of that statement is important.
Novak
involved a situation where a doctor misdiagnosed a lump on the plaintiff as
    benign. It was later discovered that she had cancer. After undergoing surgery,
    it appeared that the cancer had been cured. The plaintiff considered suing her
    doctor at that point but decided instead to focus on her recovery and accept
    the diagnosis that she had fully recovered from cancer. Some years later, the
    cancer reoccurred, and she sued her original doctor.

[27]

The case considered British Columbias limitations legislation.
    Subsection 6(4)(b) of that statute provided for the postponement of the
    limitation period until a properly advised reasonable person would consider that
    the plaintiff ought, in the persons own interests and taking the persons
    circumstances into account, to be able to bring an action. That, of course, is
    a very different provision than s. 5(1)(a)(iv). In my view,
Novak
does
    not assist the appellant because the British Columbia legislation explicitly
    permitted an evaluation of whether it was in the plaintiffs interests to
    commence a proceeding.

[28]

The appellants principal submission is that he should have been
    permitted to wait until the criminal proceedings concluded so that he could
    evaluate his chances of success in litigation. He argues that litigation is an
    expensive and risky proposition, and he should not have been forced to commence
    a civil proceeding until he knew that he had a chance of success. This
    argument, of course, is precisely what this court in
Markel
said a
    plaintiff is not permitted to do.

[29]

If such an evaluative analysis could effectively stop the running of the
    limitation period, questions will necessarily follow regarding the nature of
    that analysis and the factors that could be considered. For example, is it open
    to a plaintiff to argue that he or she can await the outcome of a related
    discipline process in a professional negligence claim? May a potential
    plaintiff commence a claim many years after the events if there is a change in
    the law that increases his or her chances of success? If a critical witness
    goes missing and is later discovered, is it open to the plaintiff to assert
    that he or she did not know whether it was appropriate to bring an action until
    the witness was found?

[30]

I cite these examples, not to suggest that they should succeed under the
    appropriate means provision, but to show how far that provision might be
    expanded once plaintiffs are permitted to evaluate the strength of their claim
    before being required to commence a proceeding. This approach would introduce a
    measure of uncertainty that is contrary to the legislatures intention in
    enacting the current
Limitations Act
.
It would, in effect,
    transport the law back to the same state of uncertainty that existed before the
    changes in the legislation in 2002.

Disposition

[31]

For the foregoing reasons, I would dismiss the appeal. The respondent is entitled to its costs of the appeal payable by the appellant, which I would fix in the agreed-upon, all-inclusive sum of $10,000.

Released: D.W. December 20, 2019

C.W. Hourigan J.A.

I agree. David Watt J.A.

I agree. G.T. Trotter J.A.





[1]
Mr. Bourdeau brought a separate motion for summary judgment. Counsel advised us
    that the decision on that motion is under reserve.



[2]
For a discussion of the impetus behind reforming the
Limitations Act
, see:
    Graeme Mew, 
Limitations Act

2002
: A huge reform of existing law,
    LAWPRO Magazine 2:1 (March 2003), online: <https://www.practicepro.ca/wp-content/uploads/2003/03/2003-02-full-article-limitations-act-2002.pdf>.


