Discovery of Claims Requires Asking the Right Questions

The Ontario Superior Court recently confirmed the importance of the principle of “discoverability” when considering claims against potential defendants.

Generally speaking in Ontario, a court claim must be started within 2 years of the date that the claimant knew or ought to have known they had a claim. Whether or not a claimant ought to know about the claim requires that the claimant become aware, or “discover”, that the claim exists. Only when the claimant actually discovers the claim, does the 2-year limitation period begin.

The case of Carone v. Peel Condominium Corp. No. 766 dealt with the principle of discoverability in the context of a claim for damages related to a slip-and-fall accident that occurred as a result of the defendant’s alleged failure to properly clear snow and ice. The plaintiff filed her claim against the defendant condominium corporation within the 2-year limitation period. However, when she filed the claim, she was not aware that at the relevant time the condominium had a contract for snow removal with a third-party contractor. She discovered this fact more than 2 years after the accident, and then took steps to advance her claim against the contractor. The contractor resisted the claim on the basis that the plaintiff ought to have discovered her claim against the contractor sooner. They took the position that the plaintiff failed to make reasonable inquiries to confirm the existence and identity of the contractor involved in snow and ice removal. Had she done so sooner, she could have discovered the identity of the contractor more than 2 years before the claim against the contractor was advanced.

The Court agreed that where a party “fails to make inquiries about possible claims… by not asking any questions, that party might find herself outside a limitation period.” However, the Court ultimately found in this case that the plaintiff did take reasonable steps to determine whether or not a contractor was involved in snow maintenance on the property, and despite the fact that the defendant condominium corporation could have disclosed the identity of the contractor sooner, it failed to do so. The Court found that the plaintiff “should not be deprived of the opportunity to advance a claim” on the basis that the contractor’s identity was not disclosed to the plaintiff by the other defendants.

This case serves as a reminder of the importance of asking reasonable questions regarding the involvement of all possible parties, whenever someone considers making a claim. This of course is also true for a condominium corporation that is considering a claim. While you may not get the answers you are looking for, by asking questions you will ultimately be able to avoid any argument that you could have discovered your claim (and the responsible parties) sooner.

For more information about court claims and limitation periods, contact us.

Medical Marijuana – The Next Issue

Medical Marijuana has arrived. Someone with a medical need is now able to obtain a prescription for marijuana. And, as we all know, legalized marijuana is also on the way!

In early 2016, a Court decision (Allard v. Canada) confirmed the rights of medical marijuana patients to grow marijuana for their own purposes. Federal regulations have since been revised to accommodate the cultivation rights of “registered patients”.

In August of this year, the federal government passed the Access to Cannabis for Medical Purposes Regulations (ACMPR). These new regulations permit registered patients to grow medical marijuana for personal use, or to designate an individual to grow medical marijuana on their behalf.

Note that registered patients who intend to grow their own medical marijuana must comply with the requirements under the ACMPR. The Regulations include provisions to help maintain the safety and security of patients, persons designated to produce for patients, household residents and surrounding communities. If patients do not comply with the operating regulations, they are in violation of the Controlled Drugs and Substances Act and the Criminal Code. Moreover, registered patients are required to comply with all relevant provincial/territorial and municipal laws, including by-laws about zoning, electrical safety, and fire safety, together with all related inspection and remediation requirements.

Here’s what this appears to mean in the condominium context. Registered patients (persons who need marijuana for medical reasons) may have the right to grow marijuana – for their own use – in their units. Condominium corporations may not have the right to prevent this marijuana cultivation. However, in our view, condominium corporations do have the right to regulate and control this marijuana cultivation – by way of a Rule.

We therefore recommend that condominium corporations consider passing a Rule stating, among other things, as follows:

  • Only registered patients (persons with an established medical need) may grow marijuana
  • The cultivation must be in compliance with all applicable federal regulations
  • The cultivation also must not cause any harm to the property or any disturbance to other persons
  • The grower must advise the corporation of the cultivation, and the corporation may access the unit at any reasonable time, on reasonable notice, to observe the cultivation.

Note that smoking of marijuana in a unit is another matter entirely – and is subject to a whole other set of considerations!

For more questions about passing a Rule to regulate marijuana cultivation in your condominium, contact us.

CCI-EO Annual General Meeting and Free Seminar – October 19, 2016

All members are invited to register and attend the CCI-Eastern Ontario Annual General Meeting.

Here are the details:

  • Date: Wednesday, October 19, 2016
  • Time: 6:30 p.m.
  • Location: The Hellenic Community Center, 1315 Prince of Wales Drive, Ottawa.

This year’s AGM is expected to be an exciting meeting at which you can learn about the past year and upcoming initiatives of Eastern Ontario’s CCI Chapter, as well as participate in the elections for the vacancies on the 2016/2017 Board of Directors.

Jim Davidson will also be presenting a complimentary session for attendees after the meeting, on “Tips for a Successful AGM”. Jim will share his years of experience conducting productive and sometimes difficult meetings, and provide some of his own helpful tips and tricks for making sure that your AGM is effective, efficient, and successful!

Don’t delay, confirm your attendance and register now.

For more information, including the agenda and to register, please visit the CCI website here.

Tarion Program Review – Update

As our readers will know, Tarion is currently under review. See our previous blog posts Tarion is Under Review and Tarion Program Review – Interim Progress Report Released to learn more.

Justice Douglas Cunningham has completed his Interim Progress Report. In my view, the report is excellent – very thorough and well-written.

Justice Cunningham is now seeking additional input before he prepares his final recommendations to the Minister of Government and Consumer Services later this year.

Toward this end, I look forward to participating in a further focus group session, scheduled by Justice Cunningham for the afternoon of October 4, 2016.

Here are my overall comments about the Tarion Warranty Corporation.

I’m primarily concerned about the role of Tarion in the dispute resolution process (respecting construction deficiencies) and in relation to required deficiency repairs.

In my view, Tarion is essentially the insurer for new home builders in Ontario. And I think Tarion should be recognized as such. Therefore, I don’t have any particular problem with the make-up of the Tarion Board, or with Tarion passing by-laws and otherwise setting warranty coverage and handling the regulation of builders (all under the oversight of the province). My view is that Tarion should be recognized as fulfilling these functions in its role as insurer. And as an insurer, Tarion can certainly be involved in the dispute resolution process, but it should not be the decision-maker in the dispute resolution process. Furthermore, Tarion (and the builder) should not be deciding on required repairs without direction from an independent expert who is looking out for the best interests of the “home and the homeowner”.

For more information about the Tarion Warranty Corporation, contact us.