During a recent talk, I observed that ten years after the Limitations Act, 2002 came into force, the many and various former limitation periods are now just half-remembered curiosities. Maybe so, but Farmers Oil v. Her Majesty the Queen et al. reminds us that they’re not yet entirely irrelevant. At issue in this case was the six-month limitation period applicable to acts done pursuant to statutory or other public duty or authority that existed, until January 1, 2004, in section 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 (“PAPA”).
The defendant pleaded this limitation period when it delivered its defence in January 2002. In October 2014, it brought a motion for summary judgment to dismiss the plaintiff’s claim on the basis of this limitations defence.
The defendant’s delay caused Justice Mew to question the propriety of the motion:
[40] Given that the defendant’s position that this motion can be determined based only on the statement of claim, it is extraordinary that it let this action continue for 12 years before bringing its motion. The record does not disclose the merest whisper that a motion on the limitation issue was being contemplated until February 2014. If the defendant genuinely believed that the court does not need to make any findings of fact in order to dispose of the motion, why was the motion not brought sooner, before significant costs and utilisation of the court’s resources had occurred?
Justice Mew noted that post-Hryniak, conventional wisdom is that the Court must grant summary judgment whenever there is no genuine issue requiring trial. However, he suggested that there may be cases where it’s appropriate to dismiss a summary judgment motion on the basis of its timing:
[43] I considered long and hard whether to deny the defendant’s motion for summary judgment solely on the basis that it has been brought too late in the action for the objectives of a just, expeditious and least expensive resolution of the case to be achieved.
[44] As I have alluded to earlier, much of the discussion in Hryniak and the cases that have followed it focuses on the need for timely, cost-effective resolution of disputes. Part of that calculation would have entailed consideration of how the court’s resources could be most effectively deployed.
[45] In the present case, if I were to grant summary judgment, justice would hardly have been timely or cost effective. That ship sailed some time ago. This action has already consumed days of the court’s resources, not to mention the time and money spent on discovery (documentary and oral), the failed mediation and the de bene esse examination of Dr. Palonen.
[46] Ultimately, I talked myself out of simply dismissing the defendant’s motion based solely on the basis that it has been brought too late in the life of the action. But I would suggest that there may be cases, for example where a case is close to, if not ready for trial, and there are no, or weak, excuses for the moving party not to have brought its motion sooner, where the court goes further than I have chosen to be on this occasion and simply declines to entertain a motion for summary judgment.
This suggestion is certainly reasonable, and I expect that we’ll soon see plaintiffs citing it in response to summary judgment motions brought in the late stages of litigation.
In this case, the plaintiff’s position was that the limitation period did not apply because the dealings in issue were commercial and predominantly private in character, and therefore outside the scope of the PAPA. Justice Mew concluded that the evidentiary record did not allow him to find whether this was so, and he declined summary judgment on the basis that there was a triable issue . If the action proceeds to trial, it will almost certainly be the last judicial consideration of section 7(1) of the PAPA.
