Executive Summary: Key Legal and Evidentiary Issues

• Toronto Standard Condominium Corporation No. 2587 ("TSCC 2587") appealed a summary judgment finding that its property damage claim was statute-barred.
   
• A crane or scissors lift under Rock Contracting Services & Management Inc.'s ("Rock") control struck TSCC 2587's building on October 4, 2019, causing over $400,000 in damage.
   
• Discoverability under section 5 of the Limitations Act, 2002 was the central issue, specifically when TSCC 2587 knew or ought to have known of its claim.
   
• Evidence from the property manager and concierge, the two individuals notified of the damage on the day it occurred, was never filed.
   
• No explanation was offered for the two-year delay in issuing the claim after the identity of the contractor allegedly became known on October 7, 2019.
   
• The Court of Appeal for Ontario upheld the motion judge's finding and dismissed the appeal.
   

Facts of the case

On October 4, 2019, a crane or scissors lift performing work at an adjacent condominium building struck TSCC 2587's building, causing more than $400,000 in damage to the concrete structure above the parking garage. The crane was under Rock's control. TSCC 2587's concierge reported the damage that same day to Shari Grenade, the building's property manager. An incident report summarizing a police investigation was prepared by the concierge the following day, October 5, 2019. On October 11, 2019, Grenade emailed TSCC 2587's Board of Directors, describing how she had instructed security to obtain photos and video of the damage on October 4, that she met with the contractor on October 7, 2019, and apologizing for not contacting the Board sooner. The Notice of Action was issued April 7, 2022. Rock pleaded in its statement of defence that the action was statute-barred and brought a summary judgment motion on that basis.

Policy and legislative provisions at issue

The case turned on section 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Section 5(2) creates a presumption that a person with a claim is presumed to have known of the potential claim on the day the act occurred, unless the contrary is proved. TSCC 2587 argued that the discoverability requirements in section 5(1)(a)(iii) were not met until October 7, 2019, when it says it learned the contractor's identity, and that the two-year limitation period should run from that later date rather than from October 4, 2019.

Reasoning and analysis

The motion judge found that the property manager was TSCC 2587's agent and that she was advised of the claim on October 4, 2019, meaning TSCC 2587 was deemed to have discovered the claim on that date. The appellant did not challenge the summary judgment procedure or the agency finding on appeal; it argued only that discoverability was delayed until it learned the contractor's identity. The Court of Appeal rejected this, holding that discoverability determinations are questions of mixed fact and law entitled to deference absent a palpable and overriding error, citing AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, 168 O.R. (3d) 276 (C.A.), at para. 30. The court found no such error. TSCC 2587 bore the onus of proving it lacked the knowledge described in section 5(1)(a) as of October 4, 2019, and failed to discharge it: no evidence was filed from the property manager or concierge, the only two people informed of the damage that day. Instead, two affidavits from a Board member, Robert MacIntyre, were filed, but the Board was not told of the incident until Grenade's October 11, 2019 email, so MacIntyre could not speak to what TSCC 2587 knew on the day of the incident. The court agreed with the motion judge's implicit finding that TSCC 2587 failed to rebut the section 5(2) presumption. Even accepting that the contractor's identity was unknown until October 7, 2019, the court noted there was no explanation for the failure to issue the claim within the two years following that date. The motion judge's finding that all information necessary to commence the action was known to the property manager, and thus to TSCC 2587, as of October 4, 2019, was upheld.

Ruling and overall outcome

The Court of Appeal for Ontario dismissed the appeal, finding no error in the motion judge's determination that TSCC 2587's claim was statute-barred. Rock, the successful party, was awarded costs in the agreed-upon sum of $10,000, payable by TSCC 2587.