Ontario: the Court of Appeal on Crown Liability and Proceedings Act limitation period

In Brazeau v. Canada (Attorney General), the Court of Appeal held that a claim for damages arising from the adoption and maintenance of a federal regulatory policy regime that applies in all provinces arises “otherwise than in a province” and is therefore subject to the limitation period in s. 32 the Crown Liability and Proceedings Act.  Federal limitation principles apply to that limitation period:

[32]      We agree with the motion judge that the six-year federal limitation period applies to these claims. The claims for Charter damages in both cases are with respect to the adoption and maintenance of a federal regulatory policy regime regarding administrative segregation that applied in all provinces. In this sense, the claims for Charter damages arise “otherwise than in a province”: see Markevich v. Canada2003 SCC 9[2003] 1 S.C.R. 94. As found by the motion judge, the start date for claims in Brazeau is July 20, 2009, and in Reddock, it is March 3, 2011.

[33]      We do not, however, agree with how the motion judge dealt with the potential tolling of the limitation period for particular individuals. At para. 386 of Brazeau, the motion judge said it was open to individual claimants to rebut the running of “the six-year limitation period in accordance with the laws relating to prescription and the limitation of actions in force in a province”. If the federal limitation period applies, we do not understand how the tolling of that limitation period could be determined by provincial law. The Charter claims in both cases are governed by the federal limitation period and the jurisprudence relating to the tolling of that limitation period: see e.g., Doig v. Canada (Minister of National Revenue)2011 FC 371387 F.T.R. 156.

I confess that it’s not clear to me how s. 32 the Crown Liability and Proceedings Act can oust the application of the Limitations Act.  Claims against the Crown are not excluded from limitation in s. 2, and the CLPA limitation period isn’t in the Limitation Act’s s. 19 schedule of limitation periods that remain in force. I’ve never seen this conflict explained, though to be fair I haven’t read into it too deeply.