Wayne asked:

We have signed property rental leases for our offices dating back to 2003. The rent has been arrived at on a dollar amount per square foot. We recently discovered that the square footage that the land load had provided in all leases dating back to the original in 2003 is inaccurate.

We have been charged for more square footage than we actually have. The landlord originally agreed to compensate us for the error dating back to our original lease but now informs us that because of the Statute of Limitations, they are only obligated to compensate us for the previous two years. Is this true?

Tony Frost answered:

In order to answer your question, you must first understand that the old Limitations Act was in effect until December 30, 2004 and permitted a plaintiff (generally speaking) to bring an action within six years of discovering its claim. The new Limitations Act came into effect on January 1, 2004 and permitted plaintiff (generally speaking) to bring an action within six years of discovering its claim.

Therefore, a number of limitation periods would potentially apply to your situation should you need to bring action in an Ontario court. Without analyzing the situation fully, your best strategy would appear to be to bring an action for all of the rental inaccuracies and take the position that they were not reasonably discoverable until recently, in which case you would have protection under both Limitations Acts. There are a number of reported cases on when a plaintiff should reasonably discover a deficiency, however, there are quite fact specific and this remains a grey area in the law. The clock is ticking and delay is not advised.

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