Summary judgment

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

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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.