Background
On October 4, 2019, a crane or scissors lift working at an adjacent condominium building struck property belonging to Toronto Standard Condominium Corporation No. 2587, causing more than $400,000 in damage to the concrete structure above its parking garage. The equipment was under Rock Contracting Services & Management Inc.’s control. The condominium’s concierge reported the damage that day to its property manager, Shari Grenade, who directed security to obtain photographs and video.
The condominium issued its Notice of Action on April 7, 2022. Rock argued that the claim was brought after the two-year limitation period and obtained summary judgment dismissing it as statute-barred. On appeal, the condominium did not challenge the use of summary judgment or the finding that its property manager was its agent. It argued instead that the claim was not discoverable until October 7, 2019, when the contractor’s identity was ascertained.
The Court’s Holding
The Court of Appeal dismissed the appeal. It upheld the motion judge’s determination that the condominium, through its property manager, knew the essential elements needed to commence the claim on October 4, 2019. Section 5(2) of Ontario’s Limitations Act, 2002 presumptively fixed discoverability on the date of the incident unless the contrary was proved, and the condominium failed to rebut that presumption.
The condominium submitted no evidence from the property manager or concierge, the two people informed of the damage on the incident date. Affidavits from a board member could not establish what the condominium knew then because the board member learned of the incident later. The court also held that discoverability is a question of mixed fact and law entitled to deference; absent palpable and overriding error, an appellate court will not intervene. The motion judge made no such error.
Even if the subcontractor’s name was unknown until October 7, the court noted that the condominium offered no explanation for failing to issue its claim during the following two years. The appeal was dismissed, with agreed costs of $10,000 payable to Rock.
Key Takeaways
- Knowledge held by a property manager acting as the condominium’s agent was attributed to the condominium for limitation-period purposes.
- A claimant seeking to rebut the statutory presumption of discoverability must provide evidence about what was known on the date of the alleged act or omission.
- A motion judge’s discoverability determination is a mixed question of fact and law that attracts appellate deference and may be disturbed only for palpable and overriding error.
Why It Matters
The decision underscores that an organization cannot necessarily delay the start of a limitation period until its board or senior decision-makers receive notice. Knowledge acquired by an authorized agent may start the clock, making prompt investigation and escalation procedures important.
It also illustrates the evidentiary risk of contesting discoverability without testimony from the people who first learned of the loss. Evidence from someone informed later may not be enough to displace the statutory presumption that the claim was discovered when the incident occurred.