



COURT OF APPEAL FOR ONTARIO

CITATION: Bennett v. J.K. (Jim) Moore Ltd. (Jim Moore
    Petroleum), 2015 ONCA 217

DATE: 20150331

DOCKET: C58912

LaForme, Watt and Epstein JJ.A.

BETWEEN

Eliza Bennett

Plaintiff (Appellant)

and

J.K. (Jim) Moore Ltd. (c.o.b. Jim Moore
    Petroleum), Steve Haglund, John Doe, John Doe Incorporated, Aultman's Heating
    Ltd., Chris Heasman, Bechtel's Home Heat and Terry Allan Bechtel

Defendants

and

David McComiskey and Monika McComiskey

Respondents on Motion

(Respondents)

Sean Dewart and Rebecca Liu, for the appellant

Martin P. Forget, for the respondents David McComiskey
    and Monika McComiskey

Heard and released orally: March 24, 2015

On appeal from the order of Justice James A. S. Wilcox of
    the Superior Court of Justice, dated May 12, 2014.

ENDORSEMENT

[1]

The oil spill that forms the basis of this action took place on March
    30, 2009. The action was commenced against several other defendants on March 7,
    2011. The record demonstrates that in the two years following the triggering
    event, the appellant took no steps to pursue the possibility of a potential
    claim against the proposed defendants, the McComiskeys.

[2]

This inactivity is surprising. The background facts suggested a possible
    claim against the McComiskeys. The Flynn report potentially implicated them.
    But of particular significance, is the communication between Ms. Sinclair, a
    claims representative for the McComiskeys insurer and Ms. Smith, a claims
    representative for the appellants insurer. According to the unchallenged
    evidence of Ms. Sinclair, on June 5, 2010, Mr. McComiskey received a letter
    from Ms. Smith putting him on notice that the appellants insurer held him
    responsible for the loss attributable to the spill. In a telephone conversation
    on July 29, 2010, Ms. Smith advised Ms. Sinclair that the claim against the
    McComiskeys was based on the fact that they previously owned the property and
    had performed renovations that may have resulted in the ruptured fuel lines
    that caused the spill. The McComiskeys insurer followed up this conversation
    with a letter to Ms. Smith dated March 21, 2011 noting that the limitation
    period was about to expire on March 30, 2011.

[3]

The appellant failed to act on this information until April, 2014, when she
    moved to add the McComiskeys as defendants in the action commenced over three
    years earlier.

[4]

The appellant submits that the precise claim she seeks to advance
    against the McComiskeys, as pleaded in the proposed amended statement of claim,
    arises out of conduct that only came to her attention during an examination for
    discovery in May, 2013; namely, that renovations the McComiskeys made to their
    property in 2007 involved the relocation of the oil tank.

[5]

While the respondents claim that this particular argument was not
    advanced before the motion judge, we are prepared to consider it. And we cannot
    accept it.

[6]

As noted above, the unchallenged evidence of Ms. Sinclair is that as
    early as July, 2010, the appellant was aware that she had a claim against the
    McComiskeys, a claim that, at least in part, related to renovations the
    McComiskeys had done to their property that involved the fuel line. According
    to s. 5(1)(b) of the
Limitations Act
, the limitation period starts to
    run when a reasonable person with the abilities and in the circumstances of the
    appellant, knew or ought to have known enough facts upon which to base an
    allegation of negligence.

[7]

On this record, the limitation period started to run at least in July,
    2010, if not earlier.

[8]

The appellants motion to add the McComiskeys as defendants is statute-barred.
    We agree with the motion judges conclusion to this effect and therefore
    dismiss the appeal.

[9]

As agreed, costs are fixed at $15,000 inclusive of disbursements and all
    applicable taxes.

H.S. LaForme J.A.

David
    Watt J.A.

Gloria
    Epstein J.A.


