COURT OF APPEAL FOR ONTARIO

CITATION: Wong v. Lui, 2023 ONCA 272

DATE: 20230420

DOCKET: C70618

Gillese, Tulloch and Roberts JJ.A.

BETWEEN

Jessica Wong and Trevor Tan

Plaintiffs
(Respondents)

and

Edward Lui, Rebecca Lui, Ryan De Castro, Re/Max Unique Inc.,
Brokerage, Freddy Mak, Homelife/Bayview Realty Inc., Brokerage
and One Source Home Maintenance Solutions Inc. c.o.b.
Professionalhome Consultants, and City of Toronto

Defendant
(Appellant)

Naomi Brown and Aisha Hussain, for the appellant

Julian Binavince, for the respondents

Heard: December 15, 2022

On appeal from the order of Justice Mary A. Sanderson of the Superior Court of Justice, dated March 18, 2022.

Roberts J.A.:

Introduction

[1]          At issue in this appeal is the interpretation of s. 15(4)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act” or “the current Act”). Section 15(4)(b) provides that the ultimate 15-year limitation period established under s. 15(2) of the Act[1] does not “run during any time in which…the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim”. Specifically, whether for s. 15(4)(b) to apply, the plaintiff’s claim must arise when the plaintiff is a minor.

[2]          The appellant appeals from the dismissal of its motion to dismiss the respondents’ negligence claims involving building permits from 1987 opened by the appellant. The 1987 building permits were issued in relation to defective construction carried out on their home prior to the respondents’ purchase. The appellant argues that those claims are statute-barred: the respondents commenced their action in 2021, well after the expiry of the 15-year ultimate limitation period under s. 15(2) of the Act on January 1, 2019.

[3]          The respondents started their action on July 7, 2021, less than two years after their purchase of the property on August 9, 2019. The parties agree that, but for the application of the tolling provisions of s. 15(4) of the Act, the ultimate 15-year limitation period under s. 15(2) in relation to the claim regarding the 1987 building permits would have expired on January 1, 2019.[2]

[4]          The motion judge determined that the ultimate limitation period under s. 15(2) did not run from 2004, when the Act was passed and the ultimate limitation period was imposed, to 2006, when the respondent, Jessica Wong, turned 18.[3] As a result, the motion judge concluded that the ultimate limitation period did not begin to run until Ms. Wong reached the age of majority on July 11, 2006. Her action against the appellant was therefore not statute-barred – she had commenced her action on July 7, 2021, less than 15 years after July 11, 2006. The motion judge dismissed the appellant’s motion with partial indemnity costs to the respondents.

[5]          For the reasons that follow, I would allow the appeal.

Background

[6]          The relevant facts can be briefly stated. They are taken from the joint facts agreed upon by the parties for the purposes of the appellant’s motion and the facts alleged in the respondents’ Amended Amended Statement of Claim. For the purposes of the motion, they were taken as true.

[7]          On August 9, 2019, Jessica Wong and Trevor Tan jointly purchased the property. At the time of their purchase, Ms. Wong was 31 years old and Mr. Tan was 39 years old. Together, I refer to Ms. Wong and Mr. Tan as the “respondents”.

[8]          After the closing of their purchase, the respondents discovered substantial latent structural, electrical, and other defects, including defective construction and violations of Ontario’s Building Code, O. Reg. 332/12. On July 7, 2021, they launched their action against the appellant and others.[4] They claim damages from the appellant in respect of building permits opened in 1987 and 2017.

[9]          The respondents’ negligence claims with respect to the 1987 building permits all relate to the alleged defects in their property and are pleaded in paragraphs 59.6(b) and (c) of their Amended Amended Statement of Claim, as follows:

59.6 The [appellant’s] conduct fell below the applicable standard of care in the following ways, among others:

…

(b) the [appellant] closed building permits opened by previous owners of the Property despite the Defective Washroom Support Post and Defective Rear Foundation;

(c) the [appellant] approved and closed building permits opened by previous owners of the Property despite the following defects (the “Legacy Defects”);

(i) a wood beam installed under the second floor of the Property was not constructed in accordance with the applicable building permit (a steel beam was required by the building permit) and was otherwise defectively installed;

(ii) the Property’s east walls were not constructed in accordance with the Building Code. The walls lack necessary moisture membranes and sheathing paper. The permit drawings with respect to the east walls were themselves defective for omitting the required moisture membranes and sheathing paper; and

(iii) a beam located in the Property’s second floor, at the east edge of the stairwell, lacked proper post supports in the exterior walls. The applicable permit drawings with respect to the stairwell construction were themselves defective for omitting the required beam supports.

[10]       The appellant brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the determination of a question of law involving the interpretation of s. 15(4)(b) of the Act. It sought a declaration that s. 15(4)(b) of the Act does not toll the ultimate 15-year limitation period where a plaintiff does not have a claim until he or she is an adult and, for s. 15(4)(b) to apply, a plaintiff must have a claim while the plaintiff is a minor. They sought to strike the respondents’ negligence claims respecting the 1987 permits set out in paragraphs 59.6(b) and (c) of the Amended Amended Statement of Claim. They argued that the ultimate 15-year limitation period in which to bring an action relating to the 1987 building permits had expired on January 1, 2019, more than two years before the respondents commenced their action on July 7, 2021.

[11]       In interpreting s. 15(4)(b) of the Act, the motion judge rejected the appellant’s submissions that s. 15(4)(b) was conditional on a plaintiff accruing a cause of action at the time she or he was a minor. She reasoned that, if that were the intended legislative purpose, the legislature “would have used express language to that effect – as it did in s. 47 of the Former Act.” She found that any jurisprudence considering s. 47 of the former Limitations Act, R.S.O. 1980, c. 240 (“the former Act”), had no application because it was “markedly different” from s. 15(4)(b) of the current Act.

[12]       The motion judge determined that “on a plain reading of s. 15(4)(b), the suspension of the ultimate limitation period is conditional on just two things: (i) the plaintiff must be a minor during the ultimate limitation period; and (ii) the plaintiff must not be represented by a litigation guardian with respect to the claim.” As a result, the motion judge found that a plaintiff need only show that “the cause of action had crystalized on the date the action was brought” and “that she was a minor without a litigation guardian during the ultimate limitation period in order for the ultimate limitation to roll during her minority.”

[13]       The motion judge concluded that:

The plain wording of s. 15(4)(b) of the Act is not tied to the plaintiffs’ cause of action when she or he was a minor. It refers only to 15 years from the act or omission giving rise to the claim in this case, the alleged negligent issuance of a city building permit in 1987. [Emphasis in the original.]

[14]       The motion judge therefore ordered that the respondents’ claims of negligence against the appellant are not statute-barred by s. 15(4)(b) of the Act, and dismissed the appellant’s motion, with partial indemnity costs to the respondents.

Issue

[15]       The sole issue on appeal is whether the motion judge erred in failing to conclude that for s. 15(4)(b) of the Act to apply, the claim must arise while the plaintiff is a minor.

[16]       It is common ground that as the sole issue on appeal raises a question of statutory interpretation, which is a question of law, it is reviewable on a standard of correctness: York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 10.

[17]       In my view, the motion judge erred in her interpretation of s. 15(4)(b) of the Act and her order should be set aside. As I shall explain, she erred in her application of the well-established principles of modern statutory interpretation and arrived at an interpretation of s. 15(4)(b) that failed to take into account and was inconsistent with the plain language, scheme, legislative history, and object of the entire Act. When correctly interpreted, s. 15(4)(b) only applies to claims that arise while plaintiffs are minors. As a result, the respondents’ claims in relation to the 1987 building permits are statute-barred and should be dismissed.

Analysis

(a)         Principles and relevant provisions

[18]       This appeal involves the interpretation of s. 15(4)(b) of the Act, which, as noted above, provides that the ultimate 15-year limitation period established in s. 15(2) does not apply where “the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim”.

[19]       The applicable principles of modern statutory interpretation are well-known. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The court must adopt an interpretation of the statute that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences: see e.g., Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022), at §2.03; York Condominium, at paras. 11, 14, 15; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 79, leave to appeal refused, [2020] S.C.C.A. No. 409; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27.

(b)         Historical policy and legislative objectives of limitations statutes

[20]       The historical development of limitations statutes and the common law interpretation of their purpose significantly guides the court’s interpretation of s. 15(4)(b) by providing context for understanding the purpose of this provision and how it ought to be interpreted.

[21]       While the early common law “knew no limitation periods,” rules setting out “time limits within which actions must be brought, and outside which actions could not be brought” date back as far as Roman law and continued through the Middle Ages: Williams, Limitation of Actions in Canada, 2nd ed (Toronto: Butterworths, 1980), at p. 24; William Ballentine, A Treatise on the Statute of Limitations (New York: C. Wiley, 1812), at p. 9; Henricus de Bractona, De legibus et Consuetudinibus Angliae, Volume 2 (c. 1210-1268)[5].

[22]       The earliest English statutory limitation provisions, from which Canadian statutory limitations periods derive their origin, were introduced in the Statute of Merton, 1235, 20 Hen. 3, c.1, c.8, which attached limitation periods to each writ: Graeme Mew, The Law of Limitations, 3rd ed (Toronto: LexisNexis Canada, 2016), at p. 4; Williams, at p. 25. In England, general limitation periods were first introduced through the Statute of Limitations, 1540, 32 Hen. 8, c.2, which dealt with real property, and later through the Statute of Limitations, 1623, 21 Jac. 1, c. 16, which provided limitation periods for actions including “simple contracts and torts”: Mew, at pp. 4-5.

[23]       Limitations statutes in Canadian common law provinces “evolved from the English statutes that were inherited on the appropriate reception date”: Mew, at p. 5. Their purpose has remained consistent throughout the last two hundred years: they serve to bar a claimant’s right to commence legal proceedings after a certain period of time. Seen as “statutes of repose” and “statutes of peace”, their fundamental rationale supports the public interest in the end to litigation and to the revisiting of past errors: Deaville v. Boegeman (1984), 14 D.L.R. (4th) 81 (Ont. C.A.), at p. 86; Sable Offshore Energy Inc. v. Canada (Customs and Revenue Agency), 2003 FCA 220, 226 D.L.R. (4th) 673, at para. 20; Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, 1991) at 1.

[24]       Finality in litigation is not the only object of limitations statutes. The Act and its predecessors strive to balance the plaintiff’s right to sue with the defendant’s right to certainty and finality: Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641, at para. 24; Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 54. As the Supreme Court, per Moldaver J. for the majority, reiterated in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 68: “Limitation periods are always ‘driven by specific policy choices of the legislatures’…as they attempt to ‘balance the interests of both sides’” (citations omitted).

[25]       This balance also underlies the purpose of the ultimate 15-year limitation period in s. 15(2) of the Act. As this court stated in York Condominium, at para. 32, its purpose is “to balance the concern for plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs relating to record-keeping and insurance resulting from continuous exposure to liability.”

[26]       Moreover, balanced against the right to finality is the acknowledgement that it would be unfair to bar a person’s right to make a claim while in a condition that renders them unable to take steps to pursue their rights. As a result, limitation periods are suspended by reason of incapacity and age. This is not a new provision; it has existed in one form or another for several hundreds of years: see e.g., Papamonolopoulos v. Board of Education for the City of Toronto (1986), 56 O.R. (2d) 1 (C.A.), at p. 1, leave to appeal refused, 1987 CanLII 5366 (S.C.C.); Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 243.

[27]       Indeed, as the Manitoba Court of Appeal noted in Mumford v. Health Sciences Centre (1987), 92 D.L.R. (3d) 64 (Man. C.A.), at p. 65, the legislated exception to limitation periods for minors and those “non compos mentis”, among others, dates back to the Statute of Limitations, 1623, s. 7. The exceptions for disability and minors are grounded in a broad view of incapacity: “those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters”: Murphy v. Welsh; Stoddard v. Watson, [1993] 2 SCR 1069, at p. 1080; Manitoba Metis Federation, at para. 246. Accordingly, the exception to limitation periods for those under legal disability is intended as a mechanism for “ensuring fairness to plaintiffs”: Novak v. Bond, [1999] 1 S.C.R. 808, at paras. 64, 69.

(c)         Motion judge’s interpretation

[28]       In my respectful view, the motion judge did not take into account the specific purposes of the exceptions for minors and those under disability when coming to her interpretation of s. 15(4)(b). By failing to interpret s. 15(4)(b) in light of the specific purposes of these exceptions, the motion judge deviated from the legislative purpose that had remained constant for several hundreds of years in the section’s predecessors, such as in s. 47 of the former Act.

[29]       In particular, the motion judge’s approach caused her to distinguish s. 47 of the former Act from s. 15(4) of the current Act, finding that “[t]he language of s. 47 of the Former Act is markedly different from that of s. 15(4)(b) of the Act. Section 47 of the Former Act explicitly required a cause of action to accrue to a minor as a condition of suspending the limitation period. Such an express condition is absent from the text of s. 15(4)(b) of the current Act.”

[30]       Respectfully, this was an error. The difference in language highlighted by the motion judge does not derogate from the underlying purpose of s. 47 in the former Act. This purpose is the centuries-old protection of persons under a legal disability without a litigation guardian who are presumed not to know their rights and are incapable of preserving them by starting proceedings.

[31]       Section 47 of the former Limitations Act provides:

Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind.

[32]       Section 47 reflects the legislative purpose of its predecessors that finds its origin in the early laws of England, namely, that “since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them”: Papamonolopoulos, at p. 3. Accordingly, s. 47 and its predecessors toll limitation periods for minors because “an infant is unable adequately to look after his own affairs, including the bringing of actions”: Papamonolopoulos, at p. 3, citing to Williams, at p. 203; Bisoukis v. Brampton (City) (1999), 46 O.R. (3d) 417 (C.A.), at para. 33.

[33]       This purpose informs and continues into the present Act. Nothing in the text of s. 15(4)(b) ousts the historical public purpose reflected in s. 47 of the former Act and its predecessors. Without express language or legislative intention to the contrary, it is presumed that the legislature did not intend to make significant changes to the law, as it is “improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness”: Peter St. John Langan, Maxwell on the Interpretation of Statutes, 12th ed (London: Sweet & Maxwell, 1969) at p. 116; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21.

[34]       The exceptions to the limitation periods provided for by the current Act expand the situations where a limitation period may be suspended: see e.g., Carmichael, at para. 88. Section 15(4) provides for certain limited exceptions when the 15-year limitation period established by s. 15(2) does not run: when a person is under a disability because of his or her physical, mental or psychological condition, or is a minor, and is not represented by a litigation guardian, or where the claim has been wilfully concealed or the person with the claim has been wilfully misled about the appropriateness of a proceeding as a means of remedying the injury, loss or damage. Importantly, underlying each exception is the inability of the person with the claim to commence a proceeding, whether because of disability or fraud or misrepresentation.

[35]       Moreover, the motion judge’s narrow approach to s. 15(4)(b) undermines not only the historical and legislative purpose of this provision, but also the balancing objective of the ultimate 15-year limitation period set out in s. 15(2) of the Act. The motion judge correctly stated that the purpose of the ultimate limitation period is to “provide certainty and finality to a defendant’s potential liability without unduly restricting a claimant’s access to justice”. However, the motion judge’s approach defeats this purpose because it defines a limitation period entirely by the plaintiff’s age without regard to when the claim actually arises. This is inconsistent with s. 15(2) that provides for the commencement of the ultimate limitation period from “the day on which the act or omission on which the claim is based took place”. It is not subject to discoverability principles: York Condominium, at para. 2.

[36]       The motion judge failed to apply a contextual and purposive approach to s. 15(4)(b). Importantly, she failed to give effect to all the words in s. 15(4)(b), as well as to its meaning and purpose in relation to s. 15(2) and the entirety of the Act. As a result, the analysis must be undertaken afresh.

(d)         Contextual and purposive interpretation of s. 15(4)(b) of the Act

[37]       I start with the plain language of s. 15(4)(b) of the Act. First, “the person with the claim is a minor”. This phrase, written in the present tense, links the person with the claim to the present state of being a minor. If it were meant to include persons who were minors at any time during the running of the ultimate limitation period, the text would have included the past tense, namely, “the person with the claim who was or is a minor”. It did not do so.

[38]       Moreover, the phrase, “is not represented by a litigation guardian in relation to the claim”, is conjunctive with the words, “the person with the claim”. Again, the use of the present tense indicates the present time when the person who has the claim is a minor. The only reason for the person with a claim to have a litigation guardian is because the person with a claim is under a legal disability and cannot advance a claim on his or her own behalf: see rr. 1.03 and 7.01(1) of the Rules of Civil Procedure. This harkens back to the historical public policy behind the tolling of limitation periods for minors who are unable to commence actions on their own.

[39]       This interpretation of s. 15(4)(b) with respect to the ultimate 15-year limitation period is consistent with this court’s interpretation of ss. 6 and 7 of the current Act with respect to the two-year limitation period under s. 4 of the Act. This court’s interpretation of these similarly worded provisions assists in the interpretation of s. 15(4)(b). The relevant provisions of ss. 6 and 7 of the Act are as follows:

Minors

6 The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in relation to the claim.

Incapable persons

7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.

[40]       In Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, leave to appeal refused, [2017] S.C.C.A. No. 289, this court interpreted s. 6(1)(b) and the question of when a minor “is not represented by a litigation guardian in relation to the claim”. At para. 30, Weiler J.A. interpreted the overall purpose of the Act: “The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made”. Her interpretation clearly links the temporal connection between the “person with the claim” and the period of time the person was incapable of starting an action because of their minority. That the section speaks to the contemporaneity between the incapacity and the claim repeats in Weiler J.A.’s description of the function of a litigation guardian. She stated that “[w]here the person with a claim is a minor, the Act requires that the minor be ‘represented by a litigation guardian in relation to the claim’” (emphasis added) and that “[t]he word ‘represented’ signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do”: at para. 30.

[41]       Carmichael involved the interpretation of s. 7(1)(a) of the Act and the incapacity of a claimant to start an action during the claimant’s period of incapacity because of disability. This court clearly interpreted the provisions to mean that the tolling of the limitation period was intended to operate only during the period that the claimant had the claim and, during the same period, was incapable of commencing a proceeding with respect to that claim. The court stated that s. 7(1)(a) was focussed only on “the person’s incapacity to pursue the particular claim at issue”: at paras. 88-89; and that s. 7(1) “suspends the running of the limitation period in s. 4 only ‘during any time’ in which the person is incapable, and thus begins to run again once the incapacity ceases”: at para. 103. This again points to the temporal nature of the limitation period exceptions for age and incapacity, as the emphasis is on the incapacity that occurs while the person has a legal claim to pursue.

[42]       Limitation periods only apply to claims; they do not apply to persons who do not have claims. Moreover, an adult with a claim who is not under a disability has no need of the kind of accommodation and protection that the postponement of limitation periods was historically designed to achieve.

[43]       Applying the requisite contextual and purposive approach, the only interpretation on a plain reading of s. 15(4)(b) that is consonant with the other provisions of the Act, the fundamental purpose behind limitations statutes, and the centuries-old policy objectives of the legislation with respect to minors is that it only postpones the running of the ultimate limitation period for minors who have claims that arose when they were minors.

(e)         Principles applied to the present case

[44]       Ms. Wong was born on July 11, 1988. She ceased to be a minor when she turned 18 years of age on July 11, 2006. It is common ground that Ms. Wong did not have a claim against the appellant when she was a minor between 1988 and 2006. It is also common ground that if the exception in s. 15(4)(b) of the Act did not apply, by the time she started her action on July 21, 2021, the ultimate 15-year limitation period with respect to the 1987 building permits had expired.

[45]       Ms. Wong did not have standing to assert any claim until she purchased the property on August 9, 2019. She was an adult (31 years of age) when she purchased the property in 2019. She was an adult (almost 33 years of age) when she commenced her action against the appellant in 2021.

[46]       A plaintiff is “presumed to have been capable of commencing a proceeding, unless the contrary is proven on a balance of probabilities”: Baig v. Mississauga, 2020 ONCA 697, at para. 15. There is no suggestion that Ms. Wong was under any disability when she purchased the property or commenced her action. As a result, there is no basis to extend to Ms. Wong the special protection historically afforded to persons under a disability who are unable on their own to start a claim.

[47]       Section 15(5) of the Act places the onus squarely on the person with the claim to prove that paragraph (4) applies. Ms. Wong has failed to do so.

[48]       As a result, at the time Ms. Wong and Mr. Tan purchased their home, any claims relating to the 1987 building permits were statute-barred because of the expiry on January 1, 2019 of the applicable ultimate limitation period in relation to those claims.

Disposition

[49]       Accordingly, I would allow the appeal and set aside the motion judge’s order. I would declare that the limitation period for the respondents’ claims in relation to the 1987 building permits expired on January 1, 2019 with the result that those claims are statute-barred. I would therefore dismiss the respondents’ claims against the appellant in relation to the 1987 building permits.

[50]       I would order costs of the appeal and the motion below to the appellant in the agreed-on all-inclusive respective sums of $15,000 and $10,000.

Released: April 20, 2023. “E.E.G.”

“Roberts J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. M. Tulloch J.A.”