Claim is not necessarily discovered when party commits anticipatory breach of contract

Civil Practice and Procedure - Limitation of actions - Actions in contract or debt

Tenant operated car wash on leased premises. Tenant claimed loss of income due to landlord's breach of lease resulting from landlord's construction of retail buildings, allegedly blocking view of car wash from arterial road, and from landlord placing garbage containers in front of car wash entrance, installing concrete pad adjacent to car wash building, and reducing size of electrical room in car wash building. Tenant brought action for damages. Action allowed in part. Claim was not statute-barred. Claim is not necessarily discovered when party commits anticipatory breach of contract, as innocent party may choose to treat contract at end and sue for damages, or may treat contract as subsisting and continue to press for performance of contract and bring action once promised performance fails to materialize. Tenant chose to treat contract as continuing obligation, paid its rent, and continued to press landlord to modify or abandon its plans for development of property. Tenant did not discover its claim in respect of impact of construction or traffic flow until sometime within two-year limitation period. There was no evidence that tenant's complaints regarding garbage containers, concrete pad, and electrical room arose more than two years prior to commencement of action.

London Prestige Ltd. v. Wellington Harlech Centre Inc. (2019), 2019 CarswellOnt 7549, 2019 ONSC 2364, M.D. Faieta J. (Ont. S.C.J.).

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