Before 2004, a person in Ontario who suffered a loss typically had six years within which to commence a civil lawsuit to seek compensation or recover damages for the loss. With the enactment of the Limitations Act, 2002 (“the Act”), the old six-year limitation period was reduced to two years for losses (or "claims") discovered on or after January 1, 2004.

Under the old limitations law, the courts exercised significant discretion as to when the limitation period began to run and whether it could be extended in order to achieve fairness in appropriate cases, such as where a plaintiff’s lawyer failed to issue the lawsuit on time due to a miscalculation or an oversight. This discretion is known as the doctrine of “special circumstances.” While the enactment of the new Act significantly changed the law of limitations, the courts continued to apply the “special circumstances” doctrine in a number of cases. An important June 2008 ruling of the Ontario Court of Appeal has now put an end to that.

In Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, a case where the plaintiff’s lawyer issued the lawsuit almost two months after the expiry of the limitation period because of an oversight, the Court of Appeal washed away the old doctrine of special circumstances for most claims arising after January 2004 and confirmed the principle that the two-year limit is a firm two-year limit, subject to any specific exceptions in the Act. The Court found that the aim of the new Act is “to balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs.”

The result of this decision is that where a plaintiff commences a lawsuit after the expiry of the applicable limitation period, regardless of the reason, the lawsuit will most likely be statute-barred and dismissed. It appears that certainty for defendants has prevailed over fairness for plaintiffs.

While some pre-2004 claims are still subject to the old six-year limitation period, most claims discovered between January 2004 and October 2006 are now (as of October 2008) probably already statute-barred. Parties with claims discovered in 2006 and 2007 are in serious danger of losing their right to sue, as is anyone that does not understand that a lawsuit must be commenced within two years of discovering a claim.

The lesson: Carefully consider whether your condo might have claims that need to be dealt with and move them forward promptly. Incoming condo boards or managers need to get up to speed immediately upon taking office and determine whether any claims need to be acted upon and to do so quickly.

The limitations clock is ticking.

Yes, an Environmental SWAT Team does exist.

The City of Toronto began charging a fee on garbage collected at condominium and other mult-residential buildings on July 1, 2008.   The basis for this fee, besides the promotion of recycling, likely stems from Regulation 103/94, a long ago enacted and historically dormant 1994 Regulation under the Ontario Environmental Protection Act,

Regulation 103/94 calls for the implementation of “Source Separation Programs” in all multi-unit residential buildings across Ontario; however the Ministry of the Environment did not have a system in place to monitor conformity.  Therefore in 2001 an Environmental SWAT Team  (now called the Sector Compliance Branch) was dispatched by the Ministry to undertake inspections of multi-unit residential buildings for compliance with the Regulation’s Source Separation Program in cities across Ontario.  The SWAT team’s initial efforts were described by the Ministry as follows:

"The team began its inspections of multi-unit residences on July 31, 2001 and continued with its inspections for four weeks. Working from lists provided by the City of Toronto, the team targeted multi-unit residences in Toronto (focusing on Scarborough and North York) that were suspected to be in non-compliance. The team then expanded its inspections to the areas of Ottawa, Kingston and Belleville. In total, they conducted 103 inspections." 

 

A “Source Separation Program,” under section 2(1) of the Regulation, must include:

  • the provision of facilities for the collection, handling and storage of source separated wastes described in subsection (2) adequate for the quantities of anticipated wastes;
  • measures to ensure that the source separated wastes that are collected are removed;
  • the provision of information to users and potential users of the program describing the performance of the program and encouraging effective source separation of waste and full use of the program;
  • reasonable efforts to ensure that full use is made of the program and that the separated waste is reused or recycled.

Section 10 of the Regulation defines multi-unit residential buildings as those with 6 or more dwelling units located in municipalities with a population of at least 5000. An “owner” of a multi-unit residential building is deemed to include “a condominium corporation created under the Condominium Act.”   And condos should be sure to follow the above guidelines at a minimum.

A good start in implementing a Source Separation Program is to launch an effective recycling regime in the building. There is no charge in Toronto for the collection of any volume of recyclable material and the City has made recyclable collection extremely user friendly by dispensing with the sorting requirement.  Recyclable material collected from condo buildings is now sorted mechanically at a sorting facility. The City has also made the transition easier by publishing a Recycling Handbook for Owners, Property Managers and Superintendents  to help implement the Source Separation Program in Toronto. 

So far, condos and other multi-residential buildings have been free to self-govern their building’s compliance with Regulation 103/94.    The actual fees charged for garbage collection are still in flux.  The garbage fees themselves may be enough of an incentive for a condo corporation in Toronto to implement and monitor Source Separation Programs in their buildings. We hope that our condo friends outside of the GTA have begun to implement their own Source Separation Programs so that if the SWAT comes knocking on the door, they are met with a clean and green building.

 The Government of Ontario recently introduced Bill 108 – "An Act respecting Apologies." 

According to the Attorney General’s news release, the Apology Act would, if passed:

  • Allow individuals and organizations, such as hospitals and other public institutions (or condo corproations), to apologize for an accident or wrongdoing without fear of the apology being used as evidence of liability in a civil lawsuit
  • Help victims by acknowledging that harm has been done to them — an apology is often key to the healing process
  • Promote accountability, transparency and patient safety by allowing open and frank discussions between patients and health care providers
  • Enhance the affordability and speed of the justice system by fostering the resolution of civil disputes and shortening or avoiding litigation.

Several other provinces and states have passed similar legislation and there has been growing call for such a law to be introduced here so as to help minimize conflict and disputes.   Indeed, the bill has the support of the legal and medical professions:

“Apology legislation would help to foster better communication and more compassionate relations between potential litigants,” said Jamie Trimble, President of the Ontario Bar Association. “An apology should not be something that can be used in a lawsuit later on to establish the liability of another party, nor should it be able to be used by one party to prevent the ability of another to seek justice.”

We’ve all heard about long and drawn-out lawsuits over disputes that reportedly could have been resolved at the very beginning with a simple apology.  Only time will tell whether apology laws have an appreciable effect on the number of disputes ending up in our courts or whether people begin to apologize more freely to each other.   We all hope that legislation like this is a step in the right direction towards creating a more civil society.

Update (July 17, 2009):   The Apology Act, 2009 was passed and came into force in April 2009.  See here for full text.

Welcome to the Ontario Condo Law Blog.

Our goal is to provide timely and topical information, news and commentary to inform and enlighten members of the condominium community in the Province of Ontario.

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Chris Jaglowitz, Editor-in-Chief