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 limitations period simply because a plaintiff brought its claim in the wrong forum. The court noted that the plaintiffs knew that a proceeding would be an appropriate means to seek to remedy the claim in 2010 when the defendant pleaded that the plaintiffs were in the wrong forum.

In assessing discoverability, the court reiterated the principle that when "a plaintiff fails to exercise the diligence of a reasonable person, the claim is potentially discoverable earlier than the date the plaintiffs had actual knowledge of the claim." In considering the plaintiffs' exercise of diligence, the court concluded that a reasonable person in the plaintiffs' position ought to have discovered the claim in 2009, upon receipt of the expert report suggesting damage to the property was connected to the heavy traffic on the nearby roadway, and not upon discovery that the OMB was the wrong forum for bringing the claim.

This issue has not yet received appellate consideration. While the issue was before the Court of Appeal in Har Jo Management Services Canada Ltd. v. York (Regional Municipality), 2018 ONCA 469, it declined to address the issue because it determined that the plaintiff's action was not statute-barred for other reasons. We will watch out for any appellate decision on this issue in the future.

Co-authored by Nour Chehab Eddine

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