Lecture 3 - Introduction to Limitation Periods and Proof

INTRODUCTION TO LIMITATION PERIODS AND PROOF: CHAPTERS FIVE AND SIX Ryerson University Law and Ethics in Engineering Practice Andrew Wong, B.A. Sc., L.L.B. P2Z:3515765.6 Introduction to Limitation Periods: Chapter 5 2 Introduction a plaintiff may commence an action against a defendant in a court proceeding action could be for tort or breach of contract 3 Introduction (cont’d) statutes in common-law provinces provide for limitation periods action must be commenced within certain time period  may a 4 Introduction (cont’d) policy reason for limitation periods – potential defendant should be secure in their expectation that they will not be held to account for ancient obligations – evidence on which a claim, and defence to the claim, on which they rely will become stale over time – plaintiffs are expected to act diligently and to not sleep on their rights 5 Introduction (cont’d) businessesliabilities like certainty relating to their provides an opportunity to calculate the amount of risk relating to a specific activity businesses are then in a better position to manage their risks – insurance – amount of the fee for the service 6 Introduction (cont’d) time periods – usually vary from province to province and based on the type of action (e.g., other than action for tort or breach of contract) “statute barred” – an action commencing after the prescribed time period will normally fail – the statute may bar the commencement of the proceeding after the prescribed time period 7 Introduction (cont’d) important to seek legal advice – time periods vary and may change from time to time – time periods are normally strictly applied by the courts 8 Discoverability Courts have asked “when does the time period commence”? Sparham-Souter v. Town & Country Developments – Facts house purchasers sued a municipality the claim was for negligent construction and inspection house purchasers discovered that the foundations of the house they had purchased had long since cracked 9 Discoverability (cont’d) – Decision: traditionally, the application of a general limitation period would have barred the house purchasers from suing, even though they could not reasonably have discovered the defects in time in this instance, the court concluded that “the cause of action does not accrue, and time does not begin to run, until such time as the plaintiff discovers that it has done damage, or ought, with reasonable diligence, to have discovered it” 10 Discoverability (cont’d) – Relevance: this is an English case this part of the decision relating to discoverability was later rejected by the House of Lords in England - however, the decision was cited with approval by the courts in Ontario 11 Policy discussion: discoverability • When should the time you have available to launch a lawsuit begin? From when the house’s bad foundation – begins to cause damage? – From when the house’s foundation was first mis-laid? – From when the house’s property value first suffered? 12 Discoverability (cont’d) Latent Defects – Latent defects are such that would not be revealed by any inquiry which a purchaser is in a position to make before entering into a contract for purchase. – If a defect would be discovered on a reasonable inspection, it is not latent. 13 Discoverability (con’t) Caveat Emptor – Caveat emptor (or buyer beware) is the general rule in the commercial transaction of goods in Canada – Applies only in the commercial context Kinch v Sharbell – Facts: plaintiff, Kinch, buys a used truck from the defendant Sharbell’s Used Cars 14 Discoverability (cont’d) – Facts (cont’d) at the time of purchase, there was an inspection certificate indicating the vehicle had passed inspection 10 days earlier numerous items required repair almost immediately, and when the truck was re-inspected two months later, it failed to pass the plaintiff sues – Issue: should the used car dealer be liable? 15 Discoverability (cont’d) – Decision: the Court found in favour of the used car dealer “where there is no evidence of fraud, the purchaser of a product may not complain of defects in a product that the purchaser has had an opportunity to inspect before purchase. This is referred to as the maxim caveat emptor.” Exception: fraud or an act of concealment by the Seller with respect to the patent defect then caveat emptor does not apply 16 Discoverability (con’t) City of Kamloops v Nielsen – decision of the Supreme of Court of Canada – Facts: the City of Kamloops required the footings for a house to be replaced the original owner of the house did not replace the footings and a strike by employees of the City interrupted the process of the inspections 17 Discoverability (cont’d) the house was eventually sold to Neilsen who only became aware of the problem when a plumber discovered the defective foundations while investigating a burst pipe Neilson sued the vendor and the City for negligence the City raised the defence that the claim was statute barred by limitation periods 18 Discoverability (cont’d) – Decision: the court held that the limitation period commences when the damage is first discovered, or ought with reasonable diligence to have been discovered, by the plaintiff in this case although the damage would have been evident if one went into the crawl space beneath the house, there was no reasonable way for Neilsen to know this before the plumber attended the house As such, Nielsen was entitled to damages. 19 Discoverability (cont’d) application of the discoverability concept may be a concern to service providers beneficial to plaintiffs since the time period doesn’t start until the plaintiff knows or ought reasonably to know of the claim 20 Discoverability (cont’d) could result in a claim years after the service is provided since the time period is based on discoverability with the provision of engineering or construction services, the defect may not be reasonably discovered for years after the service has been completed 21 Discoverability (cont’d) • Winnipeg Condo v . Bird Construction (As discussed in previous lecture) – building originally completed in 1974 and wall cladding fell in 1989 – claim by subsequent purchaser against the builder 22 Discoverability (cont’d) the discoverability concept was the basis for the Limitations Act, 2002 (Ontario) importantly , includes an ultimate limitation – period – “final long stop date”but 23 Limitations Act , 2002 (Ontario) came into force on January 1, 2004 introduced sweeping changes to the limitation periods in Ontario basic limitation period – a proceeding must be commenced within two years from the date the claim is discovered, or ought reasonably to have been discovered, whether in tort or contract 24 Limitations Act, 2002 (Ontario) (con’d) • Suncor Energy Products v . Howe-Baker Engineers Ltd. – Facts: • Suncor entered into contracts with Howe-Baker for engineering, fabrication and shipping of equipment • Howe-Baker entitled to invoice Suncor, about $4.2 million held back under a “completion hold-back provision” • Suncor refused to pay Howe-Baker when invoiced: alleged breach of contract by failing to properly perform the work and causing delays 25 Limitations Act, 2002 (Ontario) (con’d) October 6, 2006 – Suncor indicated they would not pay disputed invoices May 30, 2007 – failed negotiations March 28, 2008 – Suncor advised they would not participate in dispute resolution August 13, 2009 – Howe-Baker sends Suncor notice that they are submitting matter to arbitration August 18, 2009 – Howe-Baker sent Suncor a list of arbitrators – Suncor indicates they believe matter is statute barred and refuses arbitration September 4, 2009 Howe-Baker files claim When did the two years limitation period begin? 26 Limitations Act, 2002 (Ontario) (cont’d) – Decision: Important preliminary point – limitation periods to initiate arbitration is same as for civil matters Claim arose on October 6, 2006 – Howe-Baker was first put on notice that Suncor would not pay disputed invoices (i.e. “discovered” the claim) 3 step dispute resolution process in the contract – each step is distinct process (i.e. arbitration was not commenced by the failed negotiations) Claim was therefore statute barred as the 2 years limitation period had expired before arbitration or the civil suit 27 Limitations Act, 2002 (Ontario) (cont’d) ultimate limitation period – a proceeding must be commenced within fifteen years from the date that the act or omission on which the claim was based took place a claim which is not barred by the basic – limitation period may still be barred by the ultimate limitation period 28 Limitations Act, 2002 (Ontario) (cont’d) – provides comfort to parties such as engineers and contractors – Generally speaking, even if the basic m tat on per o as not exp re , no proceedinglii i d h commencedi shall be in respect of a claim after the expiry of the ultimate limitation period 29 Limitations Act, 2002 (Ontario) (cont’d) detailed transition rules which deal with, for example, acts or omissions which occurred before the Limitations Act, 2002 (Ontario) came into force certain qualifications in the Limitations Act, 2002 (Ontario) relating to, for example, minors, support or maintenance under the Family Law Act, certain sexual assaults, proceedings by the Crown to recover money 30 Limitations Act, 2002 (Ontario) (cont’d) York Condominium Corp . v . Jay-M Holdings Ltd. – Facts: May 2004 –condominium corporation discovered that the building’s demising walls were not fire-rated in accordance with building code Action in negligence against condominium developer and the City City sought to strike claim as statute barred as the last negligent act took place over 27 years ago 31 Limitations Act, 2002 (Ontario) (cont’d) – Decision: The transition rules previously referred to apply If a claim is not “discovered” before January 1, 2004, but an act/omission took place before that date, the “clock” for the ultimate limitations period begins on January 1, 2004 Ultimate limitations period therefore started on January 1, 2004 and the claim was allowed despite being over 27 years old Reflects aim of Limitations Act, 2002 (Ontario) to create ultimate limitations period going forward 32 Limitations Act, 2002 (Ontario) (cont’d) very complex piece of legislation – always seek legal advice in each instance 33 2006 Amendments (Ontario) • the Limitations Act, 2002 (Ontario) prevents parties from contracting out of the limitation periods as prescribed by the statute • us ness part es o ten e to agree to spec c limitationb periods f lik ifi – claim can only be commenced within a certain period of time – provides greater certainty to the degree of certain risks which are being assumed – provides businesses with the opportunity to quantify and manage these risks 34 2006 Amendments (Ontario) (cont’d) limitation periods in the Limitations Act, 2002 (Ontario) take priority over agreement of business parties this provisions was unpopular among business parties 35 2006 Amendments (Ontario) (cont’d) • amendments to the Limitations Act, 2002 (Ontario) were made under 2006 legislation • parties to business agreements entered into after October 16, 2006 are entitled to agree upon limitation periods that may differ from the limitation periods in the m a ons c , n ar o , su ec o Licertainitti restrictionsA2002 (O t i ) bj t t 36 2006 Amendments (Ontario) (cont’d) • business parties can , for example , agree to the following: shorten or extend the basic two-year limitation – period – shorten the ultimate fifteen-year limitation period – extend or suspend the ultimate fifteen-year limitation period (but only where the relevant claim has been discovered) 37 2006 Amendments (Ontario) (cont’d) business agreements v. consumer agreements consumer – consumer household purposes) Protection agreements: one of the parties is a (acting for personal, family, and purposes, rather than business as defined in the Consumer Act, 2002 38 2006 Amendments (Ontario) (cont’d) important for engineers and contractors to realize that they may negotiate or otherwise agree upon limitation periods in business agreements that differ from the statutory limitation periods in the Limitations Act, 2002 (Ontario) as described abovevarythe limitation periods – bind parties to the agreement 39 Other Limitation Periods the Limitations Act, 2002 (Ontario) refers to conflicts between the limitation periods in it and other acts – twelve month limitation period provision in Section 46 of the Professional Engineers Act (Ontario) was repealed by the Limitations Act, 2002 (Ontario) – the limitation period provisions in the Construction Lien Act (Ontario) were unaffected by the Limitations Act, 2002 (Ontario) and the 2006 amendments 40 Other Provinces provincesperiod without an ultimate limitation discoverability concept limitation period – commences when the damage– is first discovered, or ou ght with reasonable diligence to have been discovered, by the plaintiff 41 Other Provinces (cont’d) – effectively results in lack of final longstop date in tort since the date to commence the claim depends on discoverability advisable to negotiate a limitation period, if permitted in the province agreement does not assist with third party claims in tort 42 Other Provinces (cont’d) • there is a continuing potential for a claim being made in tort for example, a subsequent purchaser of a – building • importance of insurance coverage, such as professional liability insurance 43 Contractual Notice Provision party making the claim is sometimes required by the contract to submit a notice of claim to the other party within a certain time period CCDC forms of contract – form of construction contract – promoted by construction organizations – owners which use them will generally make amendments to them in supplementary conditions 44 Contractual Notice Provision (cont’d) CCDC 2 – 2008: paragraph 6 .5 .4 – No extension shall be made for delay unless Notice in Writing of the cause of delay is given to the Consultant not later than 10 Working Days after the commencement of the delay. In the case of a continuing cause of delay only one Notice in Writing Shall be necessary. – notice in writing within a specific time period 45 Contractual Notice Provision (cont’d) engineers are sometimes asked to provide contract administration services as consultants – may be required to prepare or review notices as a part of these services 46 Contractual Notice Provision (cont’d) proper notice of claim – substance over form – particulars given in a timely fashion – recipient understands that a claim is being advanced 47 Contractual Notice Provision (cont’d) Doyle Construction v. Carling O’Keefe – Facts: contractor was engaged to construct an expansion to the owner’s brewery a careful examination of the drawings would have revealed that certain items of equipment were to be installed by the owner during the course of construction the contractor didn’t notice and assumed that the owner would install the equipment after the completion of the contractor’s construction 48 Contractual Notice Provision (cont’d) when the mistake was discovered, a new construction schedule was drawn up the contractor did not provide formal notice that it intended to seek extra compensation until the work was completed – at which time it submitted a claim for extra costs incurred because of inefficiencies and delay caused by the owner 49 Contractual Notice Provision (cont’d) – Decision: the court held that the contractor had failed to give notice within a reasonable time of damage caused by the wrongful act or neglect of the owner as required by the contract failure to give reasonable notice had prejudiced the owner. – had the owner known of the extra cost at the time, it may not have gone ahead with the work in the same manner 50 Contractual Notice Provision (cont’d) – Decision: formal and timely notice was, by contract, a condition precedent to the claim. If such notice was not given, the claim would be barred. 51 Contractual Notice Provision (cont’d) – policy reason – prevent prejudice to the defendant by alerting it to the difficulties in time for it to take remedial action – if a party is given proper notice it can take proper steps to deal with the concern – provide the party with an opportunity of considering his position and perhaps taking corrective measures 52 Contractual Notice Provision (cont’d) – mere grumblings are not enough to constitute notice even if they are recorded in site minutes – provide formal notice detailing events, dates, effects and estimated costs advance the claim more then just indicating intent 53 Summary Limitation Periods: time period to commence an action Discoverability: time commences when the person knows or ought reasonably to know Limitations Act (Ontario): – basic limitation period: two years from discoverability – ultimate limitation period: fifteen years from the act or omission – qualifications to limitation periods – business parties may amend certain limitation periods, with certain exceptions 54 Summary (cont’d) contractual notice periods formal and timely notice with necessary details 55 Conclusion Questions? 56 Introduction to Proof: Chapter Six 57 Introduction burden of proof – a plaintiff which commences a lawsuit in tort or breach of contract against a defendant must generally prove the case against the defendant by persuading the court on a “balance of probabilities” that the facts are as the plaintiff alleges 58 Introduction (cont’d) Balance of Probabilities: – plaintiff must present evidence to show that its case is more probable than the defendant’s case – “more likely to be true” – The court must be “reasonably certain” that what is thought to have happened actually happened 59 Introduction (cont’d) • Balance of Probabilities: Continental Insurance v. Dalton Cartage (Supreme Court of Canada case) – Courts use a sliding scale to assess the Balance of Probabilities. • the more serious the allegation, the more certain the court must be about what occurred. 60 Introduction (cont’d) Balance of Probabilities – the balance of probabilities can be contrasted to the standard of proof in criminal cases which requires proof beyond a reasonable doubt – higher standard – “no reasonable doubt” in the mind of a reasonable person 61 Introduction (con’d) O.J. Simpson case demonstrates the difference between civil and criminal standards: – Facts: O.J. Simpson was charged with the murder of Nicole Brown and Ronald Goldman O.J. Then became the subject of a high speed chase on the highway after failing to turn himself in At trial, the defence team alleged mishandling of DNA evidence and police misconduct 62 Introduction (con’d) – Decision: Criminal Case: not guilty on the basis that burden of proof “beyond a reasonable doubt” not met – Allegations of mishandling of DNA evidence, as well as allegations of police misconduct, cast reasonable doubt as to whether O.J. was guilty Civil Case: jury found that on the “balance of probabilities” O.J. was liable for the wrongful death and battery of Goldman and Brown. – Ordered to pay $33.5 million in damages – Credibility of witnesses stated to be a key factor in finding O.J. liable 63 Introduction (cont’d) Balance of Probabilities: – for example, when dealing with a claim for negligence a plaintiff in a negligence action must prove on a “balance of probabilities” that: the defendant owed the plaintiff a duty of care the defendant breached that duty of care by his or her conduct the damages suffered by the plaintiff are caused by the defendant’s breach of the duty of care 64 Witnesses to prove its lawsuit , each party typically calls witnesses court may hear conflicting testimony – court must decide which witness is more credible – court may have to accept one witness’ testimony over another witness’ testimony 65 Witnesses (cont’d) opinion evidence – non-expert witnesses as a general rule , lay persons were not usually permitted to express opinions usually restricted to establishing the facts in a case the Supreme Court of Canada has said that “a basic tenet of our law is [therefore] that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience” 66 Witnesses (cont’d) expert witnesses – expert witnesses may express opinions with respect to his or her area of expertise – opinion evidence which goes beyond the experience and knowledge of the court – assist the court in understanding and comprehending the facts – must go beyond the realm of common sense 67 Expert Witnesses expert witnesses are usually retained by either party to substantiate their case specialized knowledge in accounting, medicine, engineering and physics 68 Expert Witnesses (cont’d) in constructions claims , engineers may provide expert testimony on – technical and scientific evidence – soil analysis – structural failure – mechanics – delay claims 69 Expert Witnesses (cont’d) engineerswitnesses are often retained as expert – vital and persuasive role – restrict testimony to area of expertise – subject to examination by own party and cross-examination by other party – prepare reports 70 Expert Witnesses (cont’d) experiment evidence – pre-trial experiments can be helpful in proving or disproving a case – can be as simple as driving from one location to another to determine the time it takes to cover the distance to substantiate or disprove an alibi – can be more complex, requiring technical or scientific knowledge to perform (i.e. DNA testing) 71 Expert Witnesses (cont’d) experiment evidence (cont’d) – simple experiments, such as the first example, are entirely factual and admissible without argument – where the experiment forms the basis of expert opinion (such as the second example), the factual results of the experiment are admissible but any opinion based on those results must be introduced by an expert witness 72 Expert Witnesses (cont’d) R v Collins – Facts: Accused tosses stick into a lake and fires bullets at it from the shore in order to site his rifle Bullet ricochets off the water and hits a seven-year-old boy killing him Accused contends that it was a ‘freak accident’ and he was not criminally negligent Crown contends that the accused displayed a wanton and reckless disregard for the safety of the child, and is guilty of criminal negligence 73 Expert Witnesses (cont’d) – the experiment to support its case the Crown had a police officer set up the rifle in the approximate location of the accused and fire sixteen rounds into the lake all but one of the bullets hit a target set up across the lake to approximate where the child was sitting – issue: (1) should any part of the experiment be admitted? (2) should only the factual basis be admitted (i.e. that bullets bounce off water)? (3) is the police officer an “expert witness” that may give an opinion about the safety of the conduct based on the experiment? 74 Expert Witnesses (cont’d) – decision: the trial judge permitted the experiment to be admitted to the extent it showed it is possible for bullets to ricochet off water the police officer was not, however, qualified as an expert to express an opinion with regard to the safety of the accused’s conduct or whether bullets will always ricochet off water Court of Appeal upheld the decision 75 Practical Tips practical tips for expert witness – expert witness should be qualified as an expert in the area – look at resume for training, designations, degrees, experience, articles, speaking engagements 76 Practical Tips (cont’d) – make sure the letter retaining the engineer as expert witness is very clear about the scope of the retainer (e.g., qualifications or limitations relating to the opinions of the expert) – provide objective and independent advice in spite of retainer by one of the parties expectation that expert is not completely partisan 77 Practical Tips (cont’d) – consider all of the evidence in forming opinions gather evidence from both parties’ perspective – must be able to handle cross-examination by other party as counsel for other side will attempt to dissuade the court from accepting expert’s opinion 78 Practical Tips (cont’d) – clearly understand issues and anticipate the questions which will reasonably be asked on cross-examination – be fully prepared – be professional, a good educator, speak clearly and in straight forward manner 79 Consideration of the Court when determining the admissibility of expert evidence, the court will look at several factors including the following: – (1) Relevance – is the expert evidence relevant to the issue(s) at trial? – (2) Necessity – is the expert evidence outside the experience and knowledge of the judge or jury? – (3) Experience – is the expert properly qualified? 80 Consideration of the Court (cont’d) assessment of the evidence by the court will also depend on such factors as – the independence of the expert – credibility of the expert – the expert witness should not be an advocate – provide professional, objective, unbiased opinion in relation to matters within his or her expertise 81 Consideration of the Court (cont’d) Cogar Estate v . Central Mountain – the court rejected an expert’s report because the findings in the report were not scientific or technical and did not require expert opinion for their proof “thinly disguised argument made by a partisan advocate using slanted facts” – expert should assist the court and not play the role of advocate 82 Consideration of the Court (cont’d) McNamara Construction v. Newfoundland Transhipment – the court did not place reliance on an expert’s report while providing the following comments on the expert’s evidence: “[her] demeanour in the witness box did not enhance the weight of her evidence. She was often defensive and argumentative and did not demonstrate the objectivity the Court is entitled to expect of an expert witness. Also, on a number of occasions she could give no satisfactory explanation for a particular step in or aspect of her calculations or methodology; at other times, I found her evidence contradictory and confusing” 83 Consideration of the Court (cont’d) New Regulation – On January 1, 2010 new court rules will come into effect which establish that an expert witness has a duty to the court that overrides any obligation he or she have to a party to the litigation – This will ensure that expert evidence is fair, objective and non-partisan 84 Privilege Courts exclude evidence that may be relevant to the issues at trial for a variety of public policy reasons. – One of those reasons is where the evidence is privileged. Two Main Types of Privilege – Solicitor-Client Privilege – Litigation Privilege 85 Privilege (cont’d) Solicitor – Client Privilege – a client’s communication to a lawyer, whether oral or written, is privileged whenever legal advice is sought thereby – begins whenever a client utters any information about his case – not all documents between lawyers and clients are privileged, only those regarding legal advice 86 Privilege (cont’d) Solicitor – Client Privilege (cont’d) – Can only be waived by the client – Continues indefinitely, even after the solicitor- client relationship comes to an end – Very limited exceptions 87 Privilege (cont’d) Solicitor - Client Privilege (cont’d) – public policy reasons for Solicitor-Client Privilege Need of average citizen for advice of lawyers and their resources Equality in an adversarial system To protect confidentiality, to encourage frankness in disclosure between solicitor and client 88 Privilege (cont’d) R v . Murray – Facts: Ken Murray was accused of attempting to obstruct justice by concealing a videotape which contained evidence of the crimes committed by Paul Bernardo/Karla Homolka Instructed by Bernardo to remove the tapes from Bernardo’s home and to not reveal their content Ken Murray retained the tapes for 17 months – eventually turned over the tapes to the police on advice from Ontario’s law society 89 Privilege (cont’d) Decision: – Solicitor-client privilege covers only communications between solicitor and client – not physical evidence of criminal acts – Mr. Murray found not guilty nonetheless as evidence raised a reasonable doubt as to his intention to obstruct justice – Law Society of Upper Canada charged him with professional misconduct but ultimately dropped the charges (“grey area” in rules) 90 Privilege (cont’d) Litigation Privilege – Applies to communications between solicitor and third parties that is in the context, or anticipation, of litigation – Litigation privilege dies with the litigation – Commonly comes up in issues surrounding the production of expert reports expert report prepared for one party in the context of litigation 91 Privilege (cont’d) Litigation Privilege (cont’d) – Purpose: Our legal system is an adversarial one, with two parties (commonly represented by lawyers) presenting their best case and a judge deciding the outcome Litigation privilege protects this system, as parties need a protected area to investigate and present their best case 92 Privilege (cont’d) Litigation Privilege (cont’d) – General Accident Assurance v. Chrusz (Ontario Court of Appeal) A fire damaged Chrusz’s hotel GAA’s claim adjuster found that arson was involved GAA had its lawyer communicate directly with the claims adjuster The communications between the claims adjuster and the lawyer were covered by litigation privilege, but only until the case was settled (and litigation ended) 93 Privilege (cont’d) Summary: the production of documents during the litigation process may be decided by the presence or absence of privilege expert witness should get legal advice on what may or may not be producible – notes, prior draft reports 94 Summary burden of proof – prove the case witnesses – expert witnesses and non-expert witnesses 95 Summary (cont’d) expert witnesses – provide opinions with respect to his or her area of expertise – provide the court with assistance in understanding the facts engineers as expert witnesses should be objective, professional, unbiased 96 Summary (cont’d) Privilege: – Two Main Types Solicitor-Client Privilege Litigation Privilege 97 Conclusion Questions? 98