In Amelin Engineering Ltd. v Blower Engineering Inc.[1], the Ontario Court of Appeal clarified that although ameliorative efforts may toll a limitation period, the “modified objective test” under section 5(1)(b) of the Limitations Act, 2002[2] (the “Limitations Act”) continues to apply. Thus, even where a potential defendant is attempting to remedy a situation, discoverability remains subject to the consideration of what a reasonable person with the abilities and in the circumstances of the claimant ought to have known.[3]
Background:
Beginning in 1995 and over the course of a ten year period, the plaintiffs purchased a number of steam generators from the defendants.[4] The plaintiffs encountered issues with the equipment mere days after beginning operations.[5] Both the plaintiffs and defendants attempted to repair the machinery throughout this period.
In April 2003, the plaintiffs retained an independent firm to carry out tests on one of the generators at issue. A corresponding report was produced and delivered to the defendants on April 16, 2003 which described the plaintiffs’ difficulties with the generators. The defendants demanded outstanding payments on November 26, 2003 and terminated the agreement on January 12, 2004.[6]
The plaintiffs started an action for negligent representation on April 3, 2009, just under six years after receiving the independent report.
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