Barrister and Solicitor
Legal Writing and Research
Limitations - Generally
Limitations - Nunc Pro Tunc
Limitations - Special Circumstances
Canadian Imperial Bank of Commerce v. Green (SCC, 2015)
In this case the Supreme Court of Canada considered basic principles underpinning the existence of limitation periods, and two common law exceptions to their operation, 'nunc pro tunc' and 'special circumstances'":
 This Court has generally recognized that limitation periods have three purposes known as the certainty, evidentiary and diligence rationales: Novak v. Bond, 1999 CanLII 685 (SCC),  1 S.C.R. 808, at paras. 64-67, per McLachlin J.; M. (K.) v. M. (H.), 1992 CanLII 31 (SCC),  3 S.C.R. 6, at pp. 29-31, per La Forest J. Limitation periods serve “(1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”: P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at p. 123.
 Clearly, it is desirable that litigation be accurate and certain, given that the passage of time dims memories and erodes evidence, and also that the risk of error grows as an adjudicator is further removed from the cause of action. Furthermore, after a certain time, possible defendants may be unaware of the need to preserve potentially enlightening or even exonerating pieces of evidence. Finally, it is appropriate to expect plaintiffs to assert their claims diligently and to be cognizant of their circumstances and of the extent of their control over them. Modern limitations legislation is therefore based on a recognition that limitation periods, in order to be effective, need to be final. This is the other side of the coin, the practical consequence of limitation periods that can make the application of a limitations statute seem harsh: Novak, at para. 8, per Iacobucci and Major JJ, dissenting.
(1) Doctrine of Nunc Pro Tunc
 The courts have inherent jurisdiction to issue orders nunc pro tunc. In common parlance, it would simply be said that a court has the power to backdate its orders. This power is implied by rule 59.01 of the Rules of Civil Procedure: “An order is effective from the date on which it is made, unless it provides otherwise”.
 The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.
 One of the oldest and most often cited cases, Turner v. London and South-Western Railway Co. (1874), L.R. 17 Eq. 561, dealt with this very circumstance: the plaintiff had died after the hearing but before the court rendered its judgment. The court ordered that its judgment be entered nunc pro tunc, as of the day when the argument terminated, noting that this would not cause an injustice to the other party and that such a result was appropriate in a case in which the delay had resulted from an act of the court. A long line of Canadian cases has followed Turner, as courts have granted nunc pro tunc orders where parties have died after hearings: Gunn v. Harper (1902), 3 O.L.R. 693 (C.A.); Young v. Town of Gravenhurst (1911), 24 O.L.R. 467 (C.A); Hubert v. DeCamillis (1963), 41 D.L.R. (2d) 495 (B.C.S.C.); Monahan v. Nelson, 2000 BCCA 297 (CanLII), 76 B.C.L.R. (3d) 109; Medina v. Bravo, 2008 BCSC 1307 (CanLII), 87 B.C.L.R. (4th) 369.
 LeBel and Rothstein JJ. drew upon this line of cases in Canada (Attorney General) v. Hislop, 2007 SCC 10 (CanLII),  1 S.C.R. 429, affirming “the correctness of this approach” and concluding that the estate of any class member in a class proceeding who was alive on the date that argument concluded was entitled to the benefit of the judgment: para. 77.
 In CIBC, Strathy J. suggested that a court has inherent jurisdiction to issue an order nunc pro tunc, but only in the case of a slip or oversight. In my opinion, the occurrence of a slip or oversight is not the only circumstance in which a court may exercise its inherent jurisdiction, but is instead one example of a situation in which it may do so. To hold otherwise would run counter to the historical basis for the development of the doctrine.
 In fact, beyond cases involving the death of a party or a slip, the courts have identified the following non-exhaustive factors in determining whether to exercise their inherent jurisdiction to grant such an order: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice (Re New Alger Mines Ltd. (1986), 1986 CanLII 2530 (ON CA), 54 O.R. (2d) 562 (C.A.), at pp. 570-71; Gallo v. Beber (1998), 1998 CanLII 907 (ON CA), 116 O.A.C. 340, at paras. 7 and 10; Krueger v. Raccah (1981), 1981 CanLII 2106 (SK QB), 12 Sask. R. 130 (Q.B.), at paras. 11-15; Parker v. Atkinson (1993), 104 D.L.R. (4th) 279 (Ont. Unif. Fam. Ct.), at p. 286; Hogarth v. Hogarth,  3 D.L.R. 78 (Ont. H.C.), at pp. 78-79; Montego Forest Products Ltd. (Re) (1998), 1998 CanLII 2640 (ON CA), 37 O.R. (3d) 651 (C.A.), at p. 654; Couture v. Bouchard (1892), 1892 CanLII 73 (SCC), 21 S.C.R. 281, at p. 285; Westman v. Gyselinck, 2014 MBQB 174 (CanLII), 308 Man. R. (2d) 306, at para. 40, citing Hryniak v. Mauldin, 2014 SCC 7 (CanLII),  1 S.C.R. 87, at para. 28; McKenna Estate v. Marshall (2005), 37 R.P.R. (4th) 222 (Ont. S.C.J.), at paras. 23-24). None of these factors is determinative.
 Returning to the issue in the cases at bar, there are two schools of thought in the jurisprudence on whether a failure to obtain leave within a specified limitation period results in the nullity of the action or is merely a procedural irregularity. According to one view, a failure to do so results in the nullity of the action, which cannot be remedied by a nunc pro tunc order, and is therefore an “insurmountable obstacle”: Holst v. Grenier (1987), 1987 CanLII 4512 (SK QB), 65 Sask. R. 257 (Q.B.), at para. 10. According to the second view, such a failure is merely a procedural irregularity that can be corrected by a nunc pro tunc order: see e.g., CIBC Mortgage Corp. v. Manson (1984), 1984 CanLII 2587 (SK CA), 32 Sask. R. 303 (C.A.), at paras. 8-11 and 33; McKenna, at para. 22.
 In my opinion, van Rensburg J. correctly stated the law on this point in IMAX. She noted that the courts have been willing to grant nunc pro tunc orders where leave is sought within the limitation period but not obtained until after the period expires (as in Montego Forest Products Ltd.). She also noted that, in the cases suggesting that an action commenced without leave was a nullity, the applicable limitation periods had expired before the application for leave was brought. A nunc pro tunc order in such cases would be of no use to the plaintiff, as it would be retroactive to a date after the expiry of the limitation period.
 Thus, subject to the equitable factors mentioned above, an order granting leave to proceed with an action can theoretically be made nunc pro tunc where leave is sought prior to the expiry of the limitation period. One very important caveat, identified by Strathy J., is that a court should not exercise its inherent jurisdiction where this would undermine the purpose of the limitation period or the legislation at issue.
 This is because, as with all common law doctrines and rules, the inherent jurisdiction to grant nunc pro tunc orders is circumscribed by legislative intent. Given the long pedigree of the doctrine and of rule 59.01, to which I have referred, it has been held that the legislature is presumed to have contemplated the possibility of a nunc pro tunc order: McKenna, at para. 27; Parker, at pp. 286-87; New Alger Mines, at pp. 570‑71. However, nunc pro tunc orders will not be available if they are precluded by either the language or the purpose of a statute. None of the other equitable factors listed above, including the delay being caused by an act of the court, can be relied on to effectively circumvent or defeat the express will of the legislature.
(3) Doctrine of Special Circumstances
 Although pinpointing the origin of an equitable doctrine is generally an exercise fraught with peril, it can be said with a limited degree of certainty that the doctrine of special circumstances originated in Lord Esher M.R.’s ruling in Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.). In that case, Lord Esher stated that an amendment adding a cause of action to a statement of claim after the expiry of the limitation period for that cause of action will generally be unfair and prejudice a defendant. He therefore held that a court should allow such an amendment only in “very peculiar circumstances”: p. 395. It is this narrow exception which has evolved into what is now known as the doctrine of special circumstances.
 In essence, the doctrine allows a court to temper the potentially harsh and unfair effects of limitation periods by allowing a plaintiff to add a cause of action or a party to the statement of claim after the expiry of the relevant limitation period. I hasten to add that, as the Court recognized in Basarsky v. Quinlan, 1971 CanLII 5 (SCC),  S.C.R. 380, and as the word “special” — or “peculiar” — suggests, the circumstances warranting such an amendment will not often occur.
 As an offspring of equity, the doctrine of special circumstances is naturally concerned with fairness to the parties. Indeed, this concern was at the forefront of Lord Esher’s mind in Weldon. Unsurprisingly, no exhaustive list of the circumstances that qualify as “special” has been proposed by the courts, and I believe it would be risky and unwise to do so. I note however that, concerned with not prejudicing a defendant, this Court has paid particular attention to whether the facts relevant to the extinguished action were pleaded in the original statement of claim and whether the defendant was aware of them during discovery: Basarsky; see also Dugal, at paras. 60-68. The factors enumerated by the Ontario Court of Appeal in Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3 (CanLII), 88 O.R. (3d) 401, at para. 23, which were reiterated by van Rensburg J. in IMAX, are also helpful guides:
As such, “special circumstances” include factors such as: the relationship between the proposed claim and the existing action; the true nature of all of the claims; the progress of the action; and the knowledge of the parties . . . [IMAX, at para. 71]