Collision Course? Limitation Periods, The Supreme Court Of Canada, And The Court Of Appeal For Ontario

• Published date: 19 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Civil Law
• Law Firm: Fogler, Rubinoff LLP
• Author: Mr Ronald D. Davis and Keira Zlahtic (Summer Student)

What happens when an irresistible force meets an immovable object? That question comes to mind in reading two recent high-level decisions on limitation periods. Certainty that the Court of Appeal for Ontario may have created in its January 2021 decision of Kaynes v. BP p.l.c.¹ , may now be clouded by the Supreme Court of Canada's July 2021 decision in Grant Thornton LLP v. New Brunswick².

Kaynes is an intricately reasoned landmark analysis by Justice Feldman (for the Court) of the Ontario Limitations Act, 2002³ (LA2002) and the fraught issue of when a claim - as opposed to a cause of action - is discovered for limitation purposes, notably under the four subparagraphs of paragraph 5(1)(a).

The Supreme Court's decision in Grant Thornton presents Justice Moldaver's pointed and fairly summary reasoning (for the seven Judge panel) of when a claim is discovered under the three subsections of subsection 5(2) of New Brunswick's Limitation of Actions Act⁴ (LAA).

The Court of Appeal's analytical granularity in Kaynes contrasts with the Supreme Court's sweeping generality in Grant Thornton. Only time will tell whether the two decisions are destined to collide, or to endure on parallel paths.

In the following paragraphs, we will look at the two decisions separately. We will then compare them to discern - try to discern - if the Ontario limitations landscape has been changed by Grant Thornton, or whether (and where) Kaynes still rules.

Kaynes v BP p.l.c.

Facts

Peter Kaynes was aggrieved by the BP Deepwater Horizon explosion of 2010. He started a class action. On behalf of his fellow BP shareholders, Kaynes claimed that BP had made pre-explosion securities misrepresentations about its operational safety and ability to respond to an oil disaster. This, he said, had artificially inflated BP's stock price. After the explosion, Kaynes alleged, BP revised its disclosure documents to correct the misrepresentations, which brought about a significant drop in the share price.

The hapless Mr. Kaynes tried six times to gain redress, five times in Canada and once in the U.S. We'll spare you the long and winding history. Suffice it to say that in November 2012, Kaynes sued for secondary market misrepresentation under section 138.3 of the Ontario's Securities Act⁵, and common law negligent misrepresentation (the latter allegation was withdrawn soon after). In 2017, Kaynes narrowed his approach to advance the Securities Act allegations.

BP responded that the claims were...