York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al., (2007) 220 O.A.C. 311 (CA)

• Judge: Weiler, Lang and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 17, 2006
• Jurisdiction: Ontario
• Citations: (2007), 220 O.A.C. 311 (CA);2007 ONCA 49;84 OR (3d) 414;[2007] OJ No 240 (QL);154 ACWS (3d) 1205;220 OAC 311;30 MPLR (4th) 161;36 CPC (6th) 233;59 CLR (3d) 15

York Condo. v. Jay-M Holdings (2007), 220 O.A.C. 311 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JA.059

York Condominium Corporation No. 382 (plaintiff/appellant) v. Jay-M Holdings Limited and The City of Toronto (defendants/respondent)

(C44875)

Indexed As: York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al.

Ontario Court of Appeal

Weiler, Lang and Rouleau, JJ.A.

January 29, 2007.

Summary:

In May 2004, York Condominium Corp. No. 382 discovered that the condominium building's demising walls were not fire-rated in accordance with the Building Code. In June 2005, York sued the City of Toronto, alleging negligence in its inspection of the building. The last act by the City with respect to its alleged negligence took place in 1978. The City moved to strike York's claim on the basis that it was barred by the 15 year ultimate limitation period in s. 15 of the Limitations Act, which came into force on January 1, 2004.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 58, struck York's claim as being statute barred. York appealed, arguing that the ultimate limitation period in s. 15 had to be read in light of the Act's transition provision in s. 24(5) and that the court erred in its interpretation of that provision.

The Ontario Court of Appeal allowed the appeal and set aside the order dismissing York's action. The court interpreted the transition provision in s. 24(5) to mean that if a claim was not discovered until after January 1, 2004, but the act or omission took place before that date, the ultimate limitation period of 15 years started to run as if the act or omission had taken place on January 1, 2004. York's claim was therefore not statute barred.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - In May 2004, a condominium corporation (York) discovered that the condominium building's demising walls were not fire-rated in accordance with the Building Code - In June 2005, York sued the City of Toronto, alleging negligence in its inspection of the building - The last act by the City with respect to its alleged negligence took place in 1978 - Section 15 of the Limitations Act, which came into force on January 1, 2004, contained a 15 year ultimate limitation period - However, the transition provision in s. 24(5) of the Act provided that "If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date" - The Ontario Court of Appeal held that s. 24(5) meant that if a claim was not discovered until after January 1, 2004, but the act or omission took place before that date, the ultimate limitation period of 15 years started to run as if the act or omission had taken place on January 1, 2004 - York's claim was therefore not statute barred - In reaching that conclusion, the court applied the modern approach to statutory interpretation and considered s. 24(5) in its grammatical and ordinary sense and in its legislative and broader context - The court also stated that disharmony could be avoided by treating s. 24(5) as a special provision and s. 15(1) as a general provision.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - [See Limitation of Actions - Topic 8 ].

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 2607

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Special provision versus general provision - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative context - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 2615

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Social context - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 6905.1

Operation and effect - Commencement, duration and repeal - Repeal - Substitution for repealed statute - Transitional provisions - [See Limitation of Actions - Topic 8 ].

Cases Noticed:

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 2].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 2].

Peixeiro v. Haberman (1995), 85 O.A.C. 2; 25 O.R.(3d) 1 (C.A.), affd. [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 2].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 11].

Canadian Pacific Air Lines v. Canadian Air Lines Pilots Association, [1993] 3 S.C.R. 724; 160 N.R. 321, refd to. [para. 13].

Papamonolopoulos v. Board of Education of Toronto (1986), 16 O.A.C. 249; 56 O.R.(2d) 1 (C.A.), leave to appeal denied, [1987] 1 S.C.R. v; 21 O.A.C. 319; 58 O.R.(2d) 528, refd to. [para. 26].

Armstrong v. West Vancouver (District) (2003), 178 B.C.A.C. 233; 292 W.A.C. 233; 223 D.L.R.(4th) 102 (C.A.), refd to. [para. 34].

410727 B.C. Ltd. et al. v. Dayhu Investments Ltd. et al. (2004), 201 B.C.A.C. 122; 328 W.A.C. 122; 241 D.L.R.(4th) 467; 2004 BCCA 379, refd to. [para. 34].

Bowes v. Edmonton (City) et al. (2005), 386 A.R. 1; 2005 ABQB 502, refd to. [para. 36].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, sect. 15 [para. 4]; sect. 24(5) [para. 8].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 11].

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Krishna, Melissa, and Ziegel, Jacob, The New Ontario Limitations Regime: Exposition and Analysis (2005), pp. 165, 189 [para. 25].

Lee, John, Developing a New Union Limitations Act: A Survey of Canada's Emerging Limitations Regimes, in Krishna, Melissa, and Ziegel, Jacob, The New Ontario Limitations Regime: Expositition and Analysis (2005), pp. 165 [para. 25]; 189 [para. 25].

Lee, John, An Overview of the Ontario Limitations Act, 2002 (2004), 28 Adv. Quarterly 29, p. 34 [para. 25].

Ontario, Hansard, Legislative Assembly, Official Report of Debates (December 2, 2002), Vol. 5, No. 65, p. 1550 [para. 33].

Ontario Law Reform Commission, Report of the Ontario Law Reform Commission on Limitation of Actions (1969), generally [para. 27].

Ontario Limitations Manual (3rd Ed. 2006) (Looseleaf), Appendix 2 [para. 25].

Ontario, Ministry of the Attorney General, Discussion Paper on Proposed Limitations Act (1977), generally [para. 27].

Ontario, Ministry of the Attorney General, Limitations Act Consultation Group, Report of, Recommendations for a New Limitations Act (1991), generally [para. 28].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 21 [para. 13]; 273 [para. 15].

Counsel:

Warren H.O. Mueller, Q.C., for the appellant;

Susan Ungar and Christina Pangos, for the respondent.

This appeal was heard on October 17, 2006, before Weiler, Lang, and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on January 29, 2007.