Clarke v. Faust, 2016 ONCA 223

• Judge: Feldman, Juriansz and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 29, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 223;(2016), 347 O.A.C. 380 (CA)

Clarke v. Faust (2016), 347 O.A.C. 380 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.030

Andrew Clarke and Gavin Clarke (respondents/appellants) v. Joseph F. Faust (moving party/respondent)

(C60208; 2016 ONCA 223)

Indexed As: Clarke v. Faust

Ontario Court of Appeal

Feldman, Juriansz and D. Brown, JJ.A.

March 22, 2016.

Summary:

The appellants' action against their former solicitor for professional negligence was dismissed on a summary judgment motion brought by the respondent. The motion judge found there was no genuine issue requiring a trial on whether the action was statute-barred. She found that it was. The appellants appealed.

The Ontario Court of Appeal allowed the appeal, set aside the motion judge's judgment, and replaced it with an order dismissing the respondent's summary judgment motion.

Barristers and Solicitors - Topic 2508

Negligence - General principles - Limitation period for actions against lawyers - The appellants suffered soft tissue injuries in a motor vehicle accident - The appellants' action against their former solicitor (the respondent) for professional negligence (motor vehicle claim allegedly filed out of time) was dismissed on a summary judgment motion brought by the respondent - The motion judge found no genuine issue requiring a trial on whether the action against the respondent was statute-barred - She found that it was - Under her reading of the Limitations Act, a limitation period could begin to run before the person with the claim sustained any damages - She commented that "The provisions of the Act to the extent the terms 'injury, loss or damage' are used, cannot be taken to mean that damages in law must have been sustained to the knowledge of the claimant." - She pointed out that the phrase "injury, loss or damage" in s. 5(1) of the Act was disjunctive - Consequently, she concluded the appellants were "injured" by the respondent's failure to commence the motor vehicle accident action within two years, though they might not have suffered any "damage" from that injury until the motor vehicle defendant pleaded the limitation defence in an amendment to their statement of defence on March 18, 2009 - The Ontario Court of Appeal allowed the appellant's appeal and dismissed the respondent's summary judgment motion - The motion judge erred in failing to consider the requirement of s. 5(1)(a)(iv) of the Act that a person with a claim know that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage having regard to its nature - Section 5(1)(a)(iv) required a person to have good reason to believe he or she had a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to seek to remedy the injury, loss or damage - The defendants' statement of defence filed February 5, 2009, did not plead any limitation defence - At that point, the appellants knew that three lawyers were of the opinion that the discoverability doctrine applied to their motor vehicle action - Their lawyer had advised that the defendants were persuaded of this and they had good reason to believe that was the case because the statement of defence did not plead the limitation defence - The defendants took the position that the limitation period had been missed for the first time when they amended their statement of defence on March 18, 2009 - On these facts, the appellants had no reason to know that commencing a legal proceeding against the respondent for negligence was appropriate before the statement of defence in the motor vehicle action had been amended (s. 5(1)(a)(iv)) - The objective test in s. 5(1)(b) was also met - A reasonable person with the appellants' abilities and in their circumstances would not have known that it was appropriate to commence a legal proceeding before the statement of defence in the motor vehicle action was amended - The foregoing analysis also displaced the presumption in s. 5(2) - Further, the limitation period in the professional negligence action might not begin to run until it was determined that the respondent had missed the limitation period in the motor vehicle action - Thus, the appellants' claim against the respondent was not discovered before March 18, 2009, if at all - See paragraphs 1 to 28.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - [See Barristers and Solicitors - Topic 2508 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Barristers and Solicitors - Topic 2508 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Barristers and Solicitors - Topic 2508 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Barristers and Solicitors - Topic 2508 ].

Practice - Topic 5718

Judgments and orders - Summary judgments - Pleading - Defence - The appellants' action against their former solicitor for professional negligence was dismissed on a summary judgment motion brought by the respondent - The motion judge found no genuine issue requiring a trial on whether the action was statute-barred - She found that it was - The Ontario Court of Appeal allowed the appellants' appeal and dismissed the respondent's summary judgment motion - While the motion judge had granted the summary judgment motion on the basis, inter alia, that the appellants had not pleaded discoverability in their action against the respondent, the statement of claim had set out the material facts to support the application of the doctrine - See paragraph 29.

Counsel:

Edward Goldentuler, for the appellants;

Kerri P. Knudsen and Nicole A. Dowling, for the respondent.

This appeal was heard on September 29, 2015, by Feldman, Juriansz and D. Brown, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., delivered the following decision for the court on March 22, 2016.