Canada: Section 5(1)(a)(iv) of the Ontario Limitations Act: Not the Broad Provision We all Assumed it to Be

Section 5(1)(a)(iv) of the Ontario Limitations Act, 2002, S.O. 2002, c.24, Schedule B (the "Act") postpones the running of the limitation period where the plaintiff is yet unaware that a legal proceeding would be an "appropriate means" to seek to remedy her loss. 

Since its 2016 decision, 407 ETR Concession Company v. Day, 2016 ONCA 709, the Ontario Court of Appeal has already identified two circumstances in which section 5(1)(a)(iv) acts to toll the limitation period:  (i)  where the plaintiff relies on the superior knowledge and expertise of the defendant and the defendant is seeking to remedy the plaintiff's loss;  and (ii) where an alternative dispute resolution process has yet to fully run its course, rendering legal action premature.

In a recent 2018 decision, Nasr Hospitality Services v. Intact Insurance, 2018 ONCA 725, however, the Court has retreated from its expansive interpretation of section 5(1)(a)(iv).  

Nasr establishes than an insured plaintiff cannot rely on section 5(1)(a)(iv) to postpone the running of the limitation period where an insurer has no intention to forgo a limitations defence.


Nasr involved a claim by an insured under a commercial insurance policy following property damage caused by flooding.    

The water damage was initially discovered by the insured on January 31, 2013, at which point the insured notified the insurer about the flood.    Upon learning of the flood, the insurer assigned a company to attend and report on any damage.  

Over the next few months, the insurer engaged in settlement discussions with the insured and paid part of the claim.  

During the litigation which later ensued, the insured admitted that there was no act by the insurer which indicated that it would not be relying on a limitations defence.

Ultimately, the insurer denied the insured's claim under the policy on July 22, 2013.   The plaintiff insured did not commence an action for indemnification under the policy until April 22, 2015.

The insurer argued that the insured's action was statute-barred as it was clear that the insured knew that a loss had occurred on February 1, 2013, the day after the insured notified the insurer of the loss, and commenced an action against the insurer more than two (2) years from this date.

The insured argued that, despite its knowledge of the loss on February 1, 2013, the limitation period had been postponed under section 5(1)(a)(iv) of the Act.   The insured did not know a legal proceeding would be an "appropriate means" to remedy the loss until the insurer had clearly repudiated its obligation to indemnify under the policy, which did not take place until July, 2013.

On a motion for summary judgment brought by the insurer to dismiss the action as statute-barred, the motion judge agreed with the insured and declared that the limitation period did not begin to run until July, 2013.  The action was not statute-barred.

The majority of the Court of Appeal reversed the motion judge's decision, with Justice Feldman dissenting.

Section 5(1)(a)(iv) Cannot Be Used to Overcome the Insurer's Intention to Rely on a Limitations Defence

The Court of Appeal's analysis in Nasr begins with an understanding of prior Superior Court of Canada jurisprudence which holds that in order for an insurer's conduct to give rise to a promissory estoppel preventing the insurer from relying on a limitations defence, the insurer's conduct must amount to a promise on which the insured acted to its detriment: see Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 and Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 S.C.R. 61.

In this case, the insured admitted that the insurer's conduct following notice of the claim, in which the insurer engaged in settlement discussions with the insured and paid part of its claim, did not amount to the type of conduct contemplated in Maracle and Marchischuk.

Given the insured's admission that promissory estoppel did not apply to preclude a limitation defence by the insurer, the Court of Appeal held that the motion judge erred in using the insurer's conduct to conclude that it was not legally "appropriate" under section 5(1)(a)(iv) of the Act for the insured to commence an action until there was an unequivocal denial of the insured's claim under the policy.  

In other words, to use section 5(1)(a)(iv) in this way would create a "watered-down promissory estoppel" preventing the insurer from raising a limitations defence, contrary to the reasoning of Maracle and Marchischuk.

The Court of Appeal held:

The motion judge did not find that [the insurer] had promised, expressly or impliedly, not to rely on the limitation period.   Accordingly, it was not open to the motion judge to recast, for the purposes of the appropriate means analysis [under section 5(1)(a)(iv)], the conduct by [the insurer] that [the insured] conceded could not support a finding of promissory estoppel that the insurer would not rely on the limitation period...

The Limits of Section 5(1)(a)(iv)

Despite the Court of Appeal's recent trend toward giving section 5(1)(a)(iv) of the Act a broad interpretation, Nasr illustrates that this section has its limits. 

Where section 5(1)(a)(iv) would have the effect of overturning established case law, such as the law governing when an insurer's conduct will estop it from relying on a limitations defence, the Court's reading of section 5(1)(a)(iv) is restrictive.

The majority's decision in Nasr affirms that Ontario Courts will not use section 5(1)(a)(iv) to circumvent the law of limitations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions