Ontario: the denial of summary judgment on a limitations defence isn’t necessarily determinative of the defence


The Divisional Court’s decision in Barrs v. Trapeze Capital Corp. is a reminder that when the court denies a summary judgment motion on a limitations defence, the order isn’t determinative of the limitations defence absent explicit language to that effect:

[36]           And in Skunk, at para. 60, the Court of Appeal stated that in the absence of an express indication by the motion judge that his or her determination is to be binding on the parties at trial, it should be presumed that in expressing a conclusion on a point of law when dismissing a summary judgment motion she is simply explaining why she concluded that there is a genuine issue requiring a trial, and did not intend her determination to be binding on the parties.

[37]           Our reading of the reasons of the motions judge leaves us uncertain about whether he intended to make final and binding findings of fact and conclusions on the legal consequences of those facts. The parties evidently see things the same way, having pursued an appeal route applicable to interlocutory rather than final orders.

[38]           Given the absence of an express determination of this issue, we are of the view that the motion judge did not intend his conclusions to be binding on the parties.

A party that wants the limitations defence determined should ask the court to do so explicitly.

Ontario: summary judgment on a partial limitations defence denied

In Lyall v. Whitehead the court denied summary judgment on a limitations defence because it would only partially dispose of the action. The limitations defence was not readily bifurcated from the merits.  This gave rise to the potential for duplicative results and credibility issues:

[13]           In an attempt to persuade me that partial summary judgment is appropriate the defendant relies upon the decision of Justice Myers in Mason v. Perras Mogenais2018 ONSC 1477 (CanLII) (“Mason”). Justice Myers held that discrete issues, like limitation periods, which do not overlap with the merits that are left for trial, are suitable for partial summary judgment motions. I do not read Mason to stand for the proposition that partial summary judgment motions are appropriate in each and every case that involves a limitation period issue. In Mason, partial summary judgment was granted in circumstances where the case was brought to an early end, in totality, against one of the defendants. In my view, that situation is more akin to a summary judgment motion than a partial summary judgment motion since the action was brought to an end against that defendant. That is certainly not the case here. As discussed below, the clear potential for duplicative results and major credibility issues in this case are outside the realm of what Justice Myers considered appropriate in Mason.

[14]           I agree with the plaintiffs that, whether the action succeeds or not, the dominant narrative of the broader underlying claim concerns the defendant’s conduct as Estate trustee and whether he breached his fiduciary duties to the plaintiffs. Even if the partial summary judgment motion was successful, the matter would move on to trial with several other significant issues and claims in play which raises the legitimate specter of inconsistent decisions. The facts underpinning the allegations the defendant seeks to dismiss are too deeply intertwined with the facts underpinning the remaining causes of action. It is not appropriate to grant summary judgment in this type of situation.

[15]           This case falls entirely within the ambit of cases discussed in Baywood and Butera. In this regard I am mindful of the reasoning in Butera, which makes it clear that a motion for partial summary judgment should be considered a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and may be dealt with expeditiously and in a cost effective matter. As stated in Butera, such an approach is entirely consistent with the objectives set out by the Supreme Court in Hryniak v. Mauldin2014 SCC 7 (CanLII). I entirely agree, and in any event, the decision is binding upon me.


[19]           In my view, this is exact type of case warned against by the Court of Appeal in Baywood. In this case, credibility is extremely important. As stated in Baywood, voluminous affidavit evidence can obscure the affiant’s authentic voice. That has happened here. I received the evidence in a decontextualized manner and to make any findings on credibility in this fashion would result in fundamental unfairness in a way it will not likely occur at trial where the trial judge will see all of the evidence. Put another way, I cannot make credibility findings on the issues before me without also impacting the trial judge’s ability to independently assess the facts at trial. The trial judge’s credibility findings will be based on a set of facts broader than mine, but will also inherently include those that the defendant has put before me. They are not readily bifurcated from the broader underlying claim.

Ontario: Put that best foot forward (or else)

Bergen v. Fast Estate is a reminder from the Court of Appeal that in a summary judgment motion on a limitations defence, the plaintiff needs to put her best evidentiary foot forward, or lose:

[11]      In response to Aviva’s motion for summary judgment, no evidence was filed that had the effect of rebutting the presumption that as at the date of his accident, the appellant knew he was not the owner of the motor vehicle but his father was. In particular, there was no evidence from either the appellant or his father, Johan Bergen Sr., both of whom were clients of the law firm when the appellant’s claim was issued. Given the appellant’s obligation to put his “best foot forward” in response to Aviva’s motion for summary judgment and his onus to rebut the presumption under s. 5(2), the motion judge was entitled to assume that there would be no additional evidence at trial to assist the appellant on these issues.

[12]      Absent any evidence rebutting the presumption, the appellant and his counsel (as the appellant’s agent) were presumed to know who owned the vehicle prior to the issuance of the statement of claim. Accordingly, they were also presumed to know at that time that the owner was a potential defendant and that an action against the owner would therefore be an appropriate remedy to recover damages for the appellant’s injuries. That it was not strictly necessary to add the owner of the vehicle as a defendant at the time the statement of claim was issued does not determine whether an action against the owner was an appropriate remedy. As the motion judge stated, “[t]here could never be an argument that the appropriate remedy against the owner of the vehicle was anything other than to include him as a defendant in the action when the Statement of Claim was issued”.

Ontario: simplified procedure and summary judgment motions on limitations defences

Cornacchia v. Rubinoff illustrates the difficulties of moving for summary judgment on limitations defences in simplified procedure actions.  This is because there are no cross-examinations on affidavits under simplified procedure. The court denied the motion on the basis that the simplified procedure did not permit the findings of fact required by the limitations defence:

[3]               An important factor in the argument on the motion is that the underlying claim was commenced under the simplified procedure provided in rule 76.  As a result, pursuant to rule 76.04(1), cross-examination on the affidavits filed on the motion is not permitted.  A further implication of the fact that the underlying action is brought under the simplified procedure rules, is that it can be expected to be a relatively short trial.

[4]               For reasons that I will explain, I find that the combination of two procedural aspects of this motion lead me to conclude that the limitation period issue in this case is not an appropriate issue for summary judgment, either in favour of the defendant, or in favour of the plaintiff.  I find that in the absence of cross-examination on the affidavits filed on the motion, particularly the plaintiff’s affidavit, the record on this motion does not allow me to make the necessary findings of fact and credibility to fairly dispose of the motion.

[30]           I find that the absence of cross-examination on the affidavits filed in the motion, raises concerns for my ability to make the necessary findings of fact and credibility to dispose of the motion, for the following reasons.

[31]           In order to assess the subjective branch of the analysis – when the plaintiff first knew that the four criteria in s. 5(1)(a)(i) to (iv) were met – the court must make factual findings about what information the plaintiff knew when, and his subjective belief about that information in relation to the criteria in s. 5(1)(a)(i) to (iv).

[32]           This assessment involves making findings of credibility about the plaintiff’s evidence on the motion.  I note that counsel for the defendant was clear during the course of argument that she was relying on both the subjective and objective branches of the Limitations Act analysis.

[40]           Concept Plastics does not hold that summary judgment will never be available on a simplified procedure matter due to the unavailability of cross-examination on the affidavits filed for the motion.  Rather, in Concept Plastics the Court of Appeal signaled the need for caution in considering summary judgment motions in simplified procedure matters, due to the unavailability of cross-examination.  Where a motions judge is considering a summary judgment motion in a simplified procedure matter, the judge should consider if there is unfairness as a result of the unavailability of cross-examination.  If the motions judge grants the motion, the judge should explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion: see Concept Plastics at paragraphs 24-25.

Ontario: technicalities aren’t your friend

Here we have yet another example of the principle that relying on technicalities will rarely carry the day.

In Daly Square Inc. v. 1786097 Ontario Inc., the plaintiff moved for summary judgment dismissing a counterclaim as statute-barred.  The plaintiff had not requested this relief in its notice of motion, but did provide the expiry of a limitation period as a ground for relief.  The defendant (and plaintiff by counterclaim) relied on the notice of motion to argue that the motion to dismiss the counterclaim was not properly before the court.

The court, not surprisingly, had none of it:

[15]           It seems that this problem could have been avoided if the parties had clarified the issue and agreed to adjourn the motion, if necessary. The defendants were obviously aware before they prepared their factum that the limitation period applicable to the counterclaim was an issue. They responded to the issue in their factum and did not request an adjournment. Nonetheless, in these circumstances, I do not feel that it would be “just” to consider the request to dismiss the counterclaim when the request was not made in the notice of motion and the defendants are saying that they would have responded differently if it had been. However, it would not an “expeditious” or the “least expensive” approach simply to refuse to consider the limitation period when both parties have now devoted considerable time to the issue; doing so would likely prompt the plaintiff to bring a further motion, resulting in more expense and delay.

Ontario: The impact of a lost SJM on a limitations defence

A defendant moves for summary judgment on the basis of an expired limitation period.  The motion judge dismisses the motion.  What impact does the dismissal have on the defendant’s limitations defence?

The answer, according to the Court of Appeal in Vanden Bussche Irrigation & Equipment Limited v. Kejay Investments Inc., is that an order dismissing the motion and nothing more has no impact on the defendant’s limitations defence:

[8]         In Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (CanLII), this court, based on identical wording in the order, held at para. 7, that the order was not a final order because, “a decision under Rule 20 determines only that a genuine issue requiring a trial exists. Accordingly to the extent that a motion judge may purport to make findings of fact in reasons for judgment dismissing a Rule 20 motion, such findings do not have binding effect.”

[9]         The court in Ashak further noted at paras. 8-11 that while a court has the power to make binding determinations of fact under rule 20.05 when dismissing a motion for summary judgment if a court proposes to exercise that power the motion judge should say so and the formal order should reflect that. A similar power to make a binding determination of law likely exists under rule 20.04(4), but again, if the motion judge purports to exercise that power, the judge should specifically invoke and reference the rule and the legal determination made should form part of the formal order.

The order taken out from the summary judgment motion stated: “THIS COURT ORDERS that the Defendant’s motion is hereby dismissed.”  Accordingly, it could have no impact on the defendant’s limitations defence at trial:

[11]      In this case, the motion judge did not specifically invoke and reference the rule giving him the power to make a binding determination nor does the order taken out reflect any determination on the issue of the limitation period. Although the limitation period defence was the only issue before the motion judge and he purported to decide it, he also refused to grant summary judgment on the claim to the plaintiff and sent the matter on for trial. It does not appear that there would be any reason for him to do so unless he was of the opinion that there was a genuine issue requiring a trial respecting the limitation period.

[12]      In the result, I have concluded that the motion judge’s determination that the limitation period had not run is not binding and is not a final order. Accordingly, were I to grant leave to file a notice of appeal, this court would not have jurisdiction to entertain the appeal and for this reason the motion is dismissed.

Ontario: Determining limitations defences before trial advances justice

In Sutton v. Balinsky, Justice Dunphy, who’s delivering consistently excellent limitations decisions, eloquently describes the policy goals advanced by determining limitations defences prior to trial:

[113]      The Limitations Act is a statute of repose and the policy of the Act is that claims barred by it should not be subject to further inquiry.  By its very nature, a limitation period bids the meritorious claim to sleep undisturbed alongside the meritless.  Reserving judgment on a limitations defence until after a full trial has subjected the parties to a thorough investigation into the merits of a claim that the Limitations Act has decreed should be allowed to rest undisturbed defeats the policy of the Limitations Act to a degree.  If the facts underlying an allegation that an action is barred under the Limitations Act can properly be brought as a summary judgment motion under Rule 20.04 of the Rules of Civil Procedure, it seems to me to advance the policy of the Act to do so and the interests of justice will tend to weigh against requiring a trial in such circumstances.  That is not to say that every such case should necessarily proceed by way of summary judgment without first ascertaining whether justice can be done in doing so or whether a trial is necessary.  I do however suggest that it is appropriate to recognize the public policy underlying the Limitations Act when making the decision as to whether the interests of justice require a trial and consider it as a factor to be weighed.  A factor to be considered does not rise to the level of presumption.  Neither plaintiff nor defendant interests are served by undergoing a lengthy trial on numerous issues when the entire matter could potentially be resolved by a consideration of only a few.  The policy of the Limitations Act is thus a factor but cannot be presumed to be the controlling one in considering the requirements of justice in a particular case.

Justice Dunphy also conveniently summarises the major principles of discoverability under the Limitations Act.  Notably, the summary is untainted by principles applicable to common law discoverability only.

[146]      Our courts have developed a considerable body of case law since 2002 under the new Limitations Act and the case law under the old still has application as regards many issues.  Several themes that have consistently emerged from that jurisprudence that are of particular relevance here include:

a.      it is not necessary to have all of the facts underlying the complete claim – it is enough to have sufficient facts to bring a claim: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 (CanLII) at para. 55-61;

b.      It is enough that the plaintiff has prima facie grounds to infer that a defendant’s actions caused or contributed to her loss even if the responsibility of each of multiple possible defendants is not yet known – certainty is not a requirement: Longo v. MacLaren Art Centre Inc.,2014 ONCA 526 (CanLII) at para. 44 and Johnson v. Studley, 2014 ONSC 1732 (CanLII) at para. 61;

c.      “Neither the extent of damage nor the type of damage need be known.  To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period”:  per Major J. in Peixero v. Haberman, 1997 CanLII 325 (SCC), 1997 3 S.C.R. 549 at para. 18;

d.       “error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period”:  per Perell J. inNicholas v. McCarthy, 2008 CanLII 54974 (ON SC), 2008 CanLII 54974 (Ont. S.C.) at para. 27-29, aff’d 2009 ONCA 692 (CanLII), leave to appeal denied 2010 CanLII 12967 (SCC);

[147]      A corollary of these principles is the over-arching obligation of due diligence.  Limitation periods are designed to incent claimants not to sleep on their rights.  Ignorance of the law is not an excuse if the facts giving rise to legal claims are known.  A party alerted to circumstances where a reasonably prudent person of similar abilities and in the same circumstances would seek professional advice must do so or risk having the claim struck as being out of time.  Knowledge of the existence of damage, its source and a reasonable understanding of who is or might be expected to be responsible for some of it at least is enough.


Ontario: Delay may bar summary judgment motions on limitations defences

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.