In Vellenga v. Boersma, the Court of Appeal provides a reminder that you raise a limitations defence for the first time on appeal at your peril:
[41] Finally, the appellants argue that Mr. Vellenga’s claim was statute-barred under s. 4 of the Real Property Limitations Act, which creates a ten-year limitation period for an action to recover land: Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623, 64 M.P.L.R. (5th) 179, at para. 31. Since Mr. Vellenga became aware that Weijs Investment owned the Boundary Lake Property as of 2004 at the latest, the appellants argue that his trust claim in 2015 was commenced after the expiry of the limitation period.
[43] The decision to grant leave is discretionary. Appellate courts will not generally entertain entirely new issues on appeal, as “it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal”: Kaiman, at para. 18. The court’s discretion is to be “guided by the balancing of the interests of justice as they affect all parties”: at para. 18.[44] In my view, it would not be in the interests of justice to grant leave. Mr. Vellenga first commenced his application in 2004 and later amended his claim in 2015 to specifically include a trust claim. The application was not heard until 2018. The appellants had more than enough time to consider and raise this argument. They provided no persuasive reason to explain their failure to do so.
[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. While this matter was commenced by way of application and did not involve formal pleadings, the key point is that the limitation argument was not raised at any time prior to this appeal.
