Whiteman v. Iamkhong is a reminder from the Court of Appeal that a party may not raise a new limitations argument on appeal.
The plaintiff appealed from the summary dismissal of his action based on the expiry of the limitation period. On appeal, he argued that sections 10(1) and 16(1)(h) of the Limitations Act nullified the limitations defence, but he hadn’t pleaded this law or raised it during the summary judgment motion. The Court refused the appeal:
[4] Instead, the appellant raises for the first time the argument that his action against the respondents is not statute-barred because of the operation of ss. 10 and 16(1)(h) of the Limitations Act. Section 10(1) tolls the running of the limitation period in respect of a claim based on assault or sexual assault during “any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.” Section 16(1)(h) states that there is no limitation period in respect of a proceeding “arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise.”
[5] Notwithstanding several amendments to his pleading, the appellant did not plead ss. 10 and 16(1)(h) of the Limitations Act, nor did he raise those sections during the argument of the summary judgment motion.
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[7] The appellant’s argument that he was incapable of commencing the proceeding within the meaning of s. 10 of the Limitations Act is foreclosed by the motion judge’s finding that he had sufficient facts upon which to base a claim by March of 2004, or at the latest, when he filed his application for compensation with the Criminal Injuries Compensation Board in July 12, 2004. This finding was reasonable on the evidence before the motion judge.
[8] In our view, it would be contrary to the interests of justice to entertain the appellant’s argument for the first time on appeal respecting the possible application of s. 16(1)(h) of the Limitations Act. On a motion for summary judgment, a responding party must put its best foot forward or risk losing the motion. The possible application of s. 16(1)(h) to the appellant’s cause of action would require a consideration of evidence as to whether Ms. Iamkhong was in a position of trust in relation to the appellant at the time of the assault which infected him. We are not satisfied that all the facts necessary to address these points are before this court as fully as if the issue had been raised on the summary judgment motion. Further, there is no suggestion by the appellant that the evidence relevant to these points only became known to him after the summary judgment motion had been argued and decided.