The Superior Court decision in RNC Corp. v. Johnstone summarises the evidentiary burden on a motion for judgment on a limitations defence:
[25] In Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., [2020] O.J. No. 4761, 2020 ONSC 6748 (S.C.J.) my colleague Sanfilippo J. expressed the point this way [at paras. 37-38]:
When a limitation defence is raised, the onus rests with Kinectrics, as plaintiff, to establish that its claim is not statute-barred in that it acted on its claims when it actually discovered the claim or when a reasonable person in the same or similar circumstances using reasonable diligence would have discovered the facts upon which the claim is based: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10, at para. 8; Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.); Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, 64 C.E.L.R. (3d) 239, at paras. 12-14; Clemens v. Brown (1958), 1958 CanLII 331 (ON CA), 13 D.L.R. (2d) 488 (Ont. C.A.), at p. 491; Verbeek v. Liebs-Benke, 2017 ONSC 151, at para. 23.
However, a defendant moving for summary dismissal based on a limitation defence has the burden of establishing that there is no issue requiring trial about its limitation defence: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 33.
[26] There is no doubt that the plaintiff needs to establish at trial that it sued in time. It needs to lead that evidence on the motion to try to avoid the issue being resolved summarily against it. But the burden remains with the moving defendants to satisfy the court that the case is one that fairly and justly ought to be resolved summarily under Hryniak. It is only once the moving party has satisfied the court that the case ought to be resolved summarily that the court will put the plaintiff to its burden on the merits.
The court denied the motion because it would require “a trial in a box”. The analysis is trenchant and serves a warning against asking the court to decide factually complex limitations defences summarily:
[48] The defendants argue that even if one starts counting at August 2016, when the parties joined issue, and even deducting for mediation, a post mediation negotiation period, and two other short periods relied upon by the plaintiff, the plaintiff is still out of time. They argue for a number of reasons that the Tarion process is irrelevant.
[49] This argument actually brings into focus my principal concern with the motion. The defendants argued about each stage and each piece of timeline relied upon by the plaintiff. They had case law to submit why each individual scene of the play in and of itself would be insufficient to toll the limitation period. It was very mathematical A + B + C.
[50] However, human relations are not mathematically precise. Each scene was not a discrete event unto itself. Like an unfolding play, each scene is part of an act. Each scene came after something and before something else. Many of the scenes and acts overlapped temporally. Each side had their own tactics and strategies in play overlaying the parties’ actions. Each scene occupied a place in a complex web of interactions of which I have very little understanding without seeing the whole play.
[51] The contract called for dispute resolution. The parties discussed invoice numbers and trying to fix the value of deficiencies. When that failed, they mediated. When that failed, they may have kept negotiating for a time — or not. The defendants went to Tarion and put everything in issue at the outset. Tarion may have assisted with an overall resolution — or not.
[52] Even assuming that I had all the documentary and transcript evidence about all of these individual scenes, I would then be looking at the entirety of the merits of the lawsuit. I would be called upon to decide credibility questions on important issues. I would be hearing the full trial in my chambers without live witnesses explaining the context and without counsel to bring order to the evidence and lead me through it all.
[53] And that is a trial in a box.