Procedural Updates - Rules of Civil Procedure (Ontario)

Rules of Civil Procedure

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Recent Case Law and Updates

October 5th 2022

Discoverability and Lawyers

The Ontario Court of Appeal released a decision in June 2022 illustrating that a party may not be statute barred from bringing a claim against counsel for a failure to adequately advise on the merits of the original action, which was lost on account of counsel’s representation, even if the limitation period had expired years prior.

The take away of this case is that where a party is awaiting to a procedural step in a litigation, based on what the court’s ultimate disposition will be, the party does not during that period in time have any knowledge of the potential loss, injury or damage that it has suffered, despite losing the main action.

The facts, briefly, in this case are as follows: the appellant was seeking leave to the Supreme Court of Canada on a question of law as to whether its counsel, Fogler Rubinoff had represented the party adequately in the legal matter at first instance. When the Supreme Court refused to grant leave to appeal to the party, meaning Mr. Chuang was unable to appeal his claim any further than the Ontario Court of Appeal, that’s when it became apparent that his loss, injury or damage had actually accrued - he had only at the rejection of the Supreme Court of Canada’s decision to refuse leave to appeal determined that the legal issue in question was not worthy of appeal, and his counsel had potentially failed in their representation of the matter at first instsance.

This is important as a case and highlights the issue of what happens to the limitations clock when we await the formal decision of a court on the basis of a decision of how to proceed on a question of law. This case highlights that even in the absence of a tolling agreement, there will not be a limitation clock running, until such time as the formal decision from the court is rendered, giving rise to the aggrieved party that there is a potential loss or injury or damage that may be claimed.

To allow the limitations clock to continue to run while awaiting a judicial disposition or leave to appeal decision (particularly during a court recess process) would be unfair, and unconstitutional.

While this may seem logical, there has been a gap in this law for some time. This case settles the unsettled law on limitation periods, procedural events in litigation, and claims against counsel in negligence.