Purchasers sued their real estate lawyer after the property was sold to others. Appellant lawyer argued the claim was discovered in November 2009, when the purchasers learned title was not transferred. Majority upheld the trial finding that discovery occurred in December 2011, on notice of the resale, deferring to the findings and noting the lawyer's continued retainer. The dissent found damage, and an appropriate proceeding, in 2009.
Outcome
Appeal dismissed 2-1 (Wilson J.A., Huscroft J.A.; George J.A. dissenting would allow and declare claim in para. 41(b) of the amended statement of claim statute-barred). Costs $13,500 all-inclusive to respondents as agreed (para. 33).
Why this case matters
The Court of Appeal applied the Limitations Act, 2002 s. 5 discoverability framework, holding that knowing of a problem is not enough and deferring to the trial findings on when damage was known.
Paragraph references
Majority: standard of review para. 17; framework paras. 19-22; damage/damages not determinative, s. 5 elements govern paras. 21, 27; a known "problem" is not enough (Gillham) para. 23; deference to findings paras. 24, 29; continued retainer and payment of account paras. 25-26; Ferrara analogy para. 28; appropriateness para. 31; conclusion para. 32. Dissent: correctness review paras. 53-54; damage vs damages paras. 56-58; damage known Nov. 2009 paras. 62, 66-67; Ferrara distinguished para. 69; appropriateness paras. 80-83; conclusion paras. 84-85.
The Regional Municipality of York v Rocco Carnavale et al.
Unreported
Superior Court of Justice14 October 2021fail to stop for red light
The Regional Municipality of York v. Rocco Carnavale et al.
CV-21-3334-000
Superior Court of Justice — Justice M.L. Lack | October 14, 2021
Background
York Region had a massive problem on their hands. Between March 16 and September 11, 2020, they issued 109 Certificates of Offence for red light camera violations under s. 144(18.1) of the Highway Traffic Act. But when these tickets reached the Justices of the Peace for review, every single one got quashed with the same reason: "filing date is past 30 days."
The COVID-19 pandemic had suspended various court limitation periods through Ontario Regulation 73/20 under the Emergency Management and Civil Protection Act. York Region's position was that the Justices of the Peace made a legal error by not recognizing that the normal time limits for serving and filing certificates didn't apply during the suspension period. With 109 quashed tickets and 7,311 more certificates sitting in limbo, York Region applied to Superior Court for mandamus — essentially asking a higher court to order the Justices of the Peace to reverse their decisions.
Issues
Whether service of notice should be dispensed with for the 109 respondents
Whether the Justices of the Peace erred in law by quashing the certificates
Whether mandamus was the appropriate remedy
The COVID Suspension Period
Justice Lack found that the Justices of the Peace made a clear error in law. Under O. Reg. 73/20, limitation periods related to commencing proceedings were suspended between March 16 and September 14, 2020 — exactly when these offences occurred. The regulation was later extended, meaning the normal 30-day rule for serving Offence Notices and 7-day rule for filing Certificates of Offence didn't apply during this period.
The court noted that all 109 certificates were properly served and filed within the suspended time period. By failing to recognize the regulatory suspension, the Justices of the Peace "committed jurisdictional error or an error in law in quashing these Certificates of Offence." Justice Lack relied on cases like Kipp v. Attorney General (Ontario) and R. v. Beason to conclude that mandamus was available even for errors in law, not just jurisdictional errors.
Service Dispensed With
The court also dispensed with serving notice of the application on all 109 respondents, finding it would be "impractical" under Rule 16.04 of the Rules of Civil Procedure. Since the respondents were required to respond to their Offence Notices within 15 days and none had responded even after extended timelines, the court found they weren't entitled to further notice of the mandamus proceeding.
Key Takeaway
Emergency regulations can suspend normal POA time limits, and Justices of the Peace must recognize these suspensions when reviewing certificates.
This case shows that even when tickets appear to be filed "late," there may be regulatory exceptions that keep them valid. It also demonstrates that when lower courts make legal errors in quashing certificates, prosecution authorities can seek mandamus from Superior Court to restore the charges.
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