The Court of Appeal’s decision in Filice v. Complex Services Inc. is a reminder of certain commonsense, probably generally self-evident principles about the timing of limitations defences. Raise a limitations defence in response to an amendment motion (if there is one to raise) on the motion, and when you raise a limitations defence generally, it shouldn’t for the first time on appeal:
[55] There is no information in the record whether the issue of the limitations period was argued when the respondent sought leave to amend his statement of claim. That is where it ought to have been argued but I have to assume it was not. If so, it is, in my view, again too late to raise the issue in this court. However, even if it were open to the appellant to raise the issue now, I would not give effect to it. The appellant was on notice of the respondent’s essential claim, that is, that his dismissal was improper. Whether the claim is styled as wrongful dismissal or constructive dismissal, the appellant was fully aware of the nature of the claim it was facing within the two year limitation period.
