Does the expiry of the limitation period entitle a party to move under rule 21.01(3)(d) for an order staying or dismissing an action on the basis that the action is frivolous or vexations or an abuse of process?
Almost certainly not. Evidence-based motions are the appropriate procedure for addressing a limitations defence, and these are brought pursuant to rule 20.
This is Justice Faieta’s review of the relevant jurisprudence in Kantor v. Fry:
[41] However, the Defendant did not provide any case law precedent that support the use of Rule 21.01(3)(d) to stay or dismiss a claim on the basis of an expired limitation period. While Rule 21.01(3)(d) was not specifically addressed, it is doubtful that such authority exists given that in Beardsley v. Ontario Provincial Police (2001), 2001 CanLII 8621 (ON CA),57 O.R. (3d) 1 (C.A.) the Ontario Court of Appeal stated, at para. 21, that:
The motion to strike based on the expiry of a limitation period could only be made pursuant to Rule 21.01(1)(a), which provides that a party may move for the determination of a question of law “raised by a pleading”. [Emphasis added.]
[42] In my view, where the determination of whether a claim is defeated by a limitation period turns on disputed facts, the better approach is a motion for a summary judgment using the tools that Rule 20.04 of the Rules of Civil Procedureprovides to resolve disputed facts.
[43] In Boutin v. Co-operators Life Insurance Co. (1999), 1999 CanLII 2071 (ON CA), 42 O.R. (3d) 612 (C.A.), the Ontario Court of Appeal stated, at paras. 19-22:
To understand the scope of Rule 21, it is important to take into account the difference among Rules 20, 21 and 22, all of which seek to shorten or eliminate trials and thus reduce the cost of litigation. These rules are clearly related in their function, but they are not randomly interchangeable.
On a motion under Rule 20 the motions judge must determine that there is or is not a genuine issue for trial: see Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 (C.A.). That determination is based on the evidence filed on the motion. It is not based on the pleadings, apart from any admissions in the pleadings. Thus, a party responding to a summary judgment motion cannot sit back and rely on the pleadings. See 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.). Because of the provisions of Rule 20.04(4), if the only genuine issue for trial is a question of law, the motions judge may determine the question of law and grant judgment accordingly. Rule 20.04(4) provides that this will be done only where there are no facts in dispute which may give rise to a genuine issue for trial.
Motions under Rule 21 and 22 are different from summary judgment motions under Rule 20. Motions under Rules 21 and 22 focus on questions of law raised by the pleadings (Rule 21.01(1)(a)), or stated by agreement of the parties (Rule 22.01(1)). A Rule 22 motion brought by the agreement of the parties will, as a result of the provisions of Rule 22.04(a), be accompanied by an agreed statement of fact to the extent that facts are necessary “to enable the court to determine the question stated.” Rule 21.01(2) provides that there be no evidence on a motion under Rule 21.01(1)(a) “except with leave of a judge or on consent of the parties.” Since Rule 21.01(1)(a) requires that the question of law be raised by the pleadings there will generally be no need for evidence on a Rule 21.01(1)(a) motion. It seems clear to me that it was for this reason that the drafters of the Rules provided that there should be no evidence on a motion under Rule 21.01(1)(a), except for cases in which leave is granted or there is consent.
I do not think that the issue whether the policy limitation period is a bar to the appellant’s action is a question of law that should have been resolved on a Rule 21.01(1)(a) motion. As the motions judge’s endorsement indicates, the application of the limitation period in this case depends upon findings of fact for its resolution. This is also apparent from the appellant’s reply to the respondent’s statement of defence. In my opinion, whether the respondent is entitled to rely on the limitation period in the policy has a significant factual component and is thus a matter which should be addressed at trial, not on a Rule 21.01(1)(a) motion. [emphasis added]
[44] Finally, in Greatrek Trust S.A./Inc. v. Aurelian Resources Inc., [2009] O.J. No. 611, Justice D.M. Brown (as he then was) stated, at para. 19:
Further, an unhealthy devotion to Rule 21 motions exists at the present time in the Toronto Region. Too many parties regard Rule 21 motions as abbreviated surrogates for motions for summary judgment. Rule 21 motions are not even close cousins to motions for summary judgment. Summary judgment motions permit courts to review evidence in order to test the merits of a case – albeit a limited form of testing at present, but more robust testing will occur with the implementation of the improved Rule 20 on January 1, 2010: O. Reg 438/08. Rule 21 motions, by contrast, “focus on questions of law raised by the pleadings”: Boutin v. Co-operators Life Insurance Co. (1999), 1999 CanLII 2071 (ON CA), 42 O.R. (3d) 612 (C.A.), para. 21. As Osborne J.A. noted in Boutin, in most cases the application of a limitation period “depends upon findings of fact for its resolution”: para. 22. Evidence-based motions offer the more appropriate procedure by which to deal with the applicability of limitation defences. [Emphasis added.]
