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ARTICLE · 29 JULY 2019

Commencing A Claim In The Wrong Forum Does Not Suspend The Running Of A Limitation Period

In Benuik v Leamington, 2019 ONSC 1830, the court addressed the issue of whether the law permits the postponing or suspending of a limitation period simply because a plaintiff brought its claim in the wrong forum.

CanadaLitigation, Mediation & Arbitration

In Benuik, the plaintiffs brought an action before the Ontario Municipal Board (OMB) against the defendant municipality in 2009 based on an expert report suggesting that damage to the plaintiffs' home was caused by, or was related to, vibrations from heavy traffic. In 2010, the defendant responded to the plaintiffs' statement of claim, pleading that the plaintiffs were in the wrong forum. In January 2018, the OMB declined jurisdiction over the plaintiffs' claim; one week later, the plaintiffs filed a statement of claim with the Ontario Superior Court. The defendant municipality argued that the plaintiffs' claim was statute-barred under the Limitations Act, 2002.

The rule for discoverability, under Section 5(1)(a)(iv) of the Act requires a need to know that "a [court] proceeding would be an appropriate means to seek [a] remedy."  However, the court agreed with the defendant municipality and found that the law does not provide for the postponing or suspending of a

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