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Limitations Act - Civil Procedure


Understanding the Interaction Between the Claim Issuance, Pleading and Ontario's Limitations Act

Anyone dealing with a limitation problem under Ontario's Limitations Act should appreciate some basic facts. While the expiry of a limitation period prevents the commencement of a civil proceeding (s.4 below), it's not that straightforward.
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
To start with, the relevance of 'pleading' is set out in the case of Singh v Trump (Ont CA, 2016) below. Basically, if the defendant/respondent doesn't 'plead' (assert in their court materials) the limitation defence, the court probably won't consider it. In short, s.4 of the Limitations is not 'jurisdictional' - ie. the court won't apply the law themselves unless the party asserts it.

Next, s.4 only applies to the 'commencement' of the lawsuit, not the service. Commencement is governed by the Rules of Civil Procedure (RCP) at Rule 14 ('Commencement of Proceedings'), especially R14.07:
An originating process is issued by the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number.
So an originating process (ie. a claim or application) may be 'issued' within the time required by a limitation period, but served later. In the case of an action, the RCP provides at R14.08 that:
Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
As well, like most time limits in the RCP, the court may consider on motion extending the six month time limit if proper grounds exist (extensions are not as-of-right): R3.02.

You can see that knowledge of the court Rules of Civil Procedure is essential to applying limitations law.

. Vellenga v. Boersma

In Vellenga v. Boersma (Ont CA, 2020) the Court of Appeal made this simple but important point about limitations:
[45] Furthermore, this court has explained that “[t]he expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21.
. Singh v Trump

In Singh v Trump (Ont CA, 2016) the Court of Appeal commented as follows on the civil practice of limitation law:
[132] This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685, [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:
In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party’s pleading.
[133] Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826, 225 A.C.W.S. (3d) 237, at para. 69:
The failure to raise substantive responses to a plaintiff's claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of the Rules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.
[134] In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:
If S had raised the issue in his pleadings, P might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for P might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied (at para. 38).
. Nasr Hospitality Services Inc. v. Intact InsuranceIn Nasr Hospitality Services Inc. v. Intact Insurance (Ont CA, 2018) the Court of Appeal discusses the interaction between the summary judgment rule and the discoverability element of limitations law:
[32] Since the 2010 amendments to the summary judgment rule and the Supreme Court’s strong endorsement in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, of the use of summary judgment as a procedural device by which to secure the final adjudication of a civil case on its merits, defendants frequently resort to a summary judgment motion to determine whether the plaintiff’s action is barred by the operation of a limitation period.

[33] Hryniak teaches that “[t]here will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits” of the motion because the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means” than other devices for reaching a final adjudication on the merits to achieve a just result: at para. 49 (emphasis added).

[34] In order for a motion judge to grant summary judgment dismissing a plaintiff’s action or, as occurred in the present case, to grant a declaration about when the limitation period began to run, the judge is required make certain necessary findings of fact. Those necessary findings of fact concern one presumption and two dates, as set out in ss. 5(1)(a), 5(1)(b) and 5(2) of the Act. Those provisions state:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[35] Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv) – namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.

[36] In the present case, although the motion judge granted an order declaring that the basic limitation period did not begin to run until July 2013, he failed to make express findings of many of the facts necessary to make such an order. Instead, he proceeded on the basis of two “assumptions”: (i) Nasr’s cause of action for breach of the Policy arose on February 1, 2013; and (ii) that date also was the date on which Nasr knew the matters described in ss. 5(1)(a)(i)-(iii). In the case of each assumption, the motion judge stated he was assuming the fact, without deciding it.

[37] Taking the motion judge’s reasons literally, if he did not find, as facts, the days on which Nasr knew or ought to have known the matters described in ss. 5(1)(a)(i)-(iii), then there was no factual support for his ultimate order that the basic limitation period “did not begin to run until July of 2013.”

[38] However, the parties have argued the appeal as if the motion judge made actual findings of fact on those matters, and I will treat his reasons in a similar fashion.

[39] I would simply reiterate that granting summary judgment dismissing an action as statute-barred, or declaring when a claim was discovered, requires making specific findings of fact. Assumptions about the matters in ss. 5(1) and (2) of the Act are not analytical substitutes for findings of fact. If the record does not enable the summary judgment motion judge to make those findings with the certainty required by Hryniak, then a genuine issue requiring a trial may exist.


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Last modified: 04-09-20
By: admin