{"id":296,"date":"2015-09-08T14:57:26","date_gmt":"2015-09-08T18:57:26","guid":{"rendered":"http:\/\/limitations.ca\/?p=296"},"modified":"2015-09-08T15:00:04","modified_gmt":"2015-09-08T19:00:04","slug":"ontario-the-ultimate-limitation-period-can-define-members-of-a-class-action","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=296","title":{"rendered":"Ontario: the ultimate limitation period can define members of a class action"},"content":{"rendered":"

In a class action, the ultimate limitation period<\/a> can define the class members.<\/p>\n

In Amyotrophic Lateral Sclerosis Society of Essex v. Windsor<\/a><\/em>, the defendants appealed the certification of two class actions claiming that charitable lottery licensing and administration fees they collected are direct taxes and ultra vires <\/em>because the revenues far exceed the costs of administration.\u00a0 Their primary objection was to the temporal scope of the of the class, which included charities that had paid fees since 1990.\u00a0 They argued that the class reached too far back in time.<\/p>\n

The defendants proposed to limit the claims to those that were commenced within the presumptive limitation period.\u00a0 The plaintiffs complained that truncating the class in this way presupposed that claims outside the period were time-barred, which is a conclusion that turns on a discoverability analysis.\u00a0 It’s settled law that where the resolution of a limitation issue depends on a factual inquiry, the Court shouldn’t determine the issue on a certification motion.<\/p>\n

However, without a temporal limit the claims would reach back to 1969\/1970 when Ontario first introduced the licencing regime for charitable gaming.\u00a0 The parties agreed that such a class definition would make the proceeding unmanageable.<\/p>\n

Justice Strathy resolved the issue by using the Limitation Act<\/em>‘s section 15<\/a> ultimate limitation period to define a sub-class for those persons whose claims are presumptively time-barred but within the ultimate limitation period:<\/p>\n

[43]\u00a0\u00a0\u00a0\u00a0\u00a0 In my view, the temporal boundary of the class can be defined in a rational way by reference to the ultimate limitation period in s. 15(2) of the Limitations Act, 2002. That provides, \u201cNo proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.\u201d This would result in a class definition encompassing persons who paid fees from and after October 24, 1993.<\/p>\n

 <\/p>\n

[44]\u00a0\u00a0\u00a0\u00a0\u00a0 Although s. 15(4) of the Limitations Act, 2002 provides an exception to the ultimate limitation period in the case of wilful concealment, drawing the class boundary at the ultimate limitation period is not arbitrary because it separates claims that require proof of wilful concealment from those that do not.<\/p>\n

 <\/p>\n

[45]\u00a0\u00a0\u00a0\u00a0\u00a0 As I will explain, concerns with respect to manageability can be addressed by the creation of a subclass, by stating common issues for the subclasses and by appropriate case management. I will discuss the subclass issue next.<\/p>\n

 <\/p>\n

(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Subclasses<\/p>\n

 <\/p>\n

[46]\u00a0\u00a0\u00a0\u00a0\u00a0 The court has the authority to certify a subclass of class members who have claims or defences not shared by all class members: CPA, s. 5(2). Subclasses are appropriate when there are common issues applicable to the class as a whole and other issues that are applicable to some, but not all class members: Caputo v. Imperial Tobacco Ltd. (2004), 2004 CanLII 24753 (ON SC), 44 C.P.C. (5th) 350 (Ont. S.C.), at para. 45.<\/p>\n

 <\/p>\n

[47]\u00a0\u00a0\u00a0\u00a0\u00a0 Here, issues of liability and damages are common to all class members. However, the claims of class members with presumptively time-barred claims raise common issues of fact and law not shared by those with timely claims. They should form a subclass. I would therefore certify a subclass of persons who paid fees between October 24, 1993 and October 23, 2002 and between January 1, 2004 and October 23, 2006. These are the payments made within the \u201cultimate limitation period\u201d in s. 15 of the Limitations Act, 2002, but not within the basic limitation period and not preserved by the transition rules of the statute.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In a class action, the ultimate limitation period can define the class members. In Amyotrophic Lateral Sclerosis Society of Essex v. Windsor, the defendants appealed the certification of two class actions claiming that charitable lottery licensing and administration fees they collected are direct taxes and ultra vires because the revenues far exceed the costs of … Continue reading Ontario: the ultimate limitation period can define members of a class action<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[90,137,136],"class_list":["post-296","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-class-actions","tag-limiting-space-and-time","tag-ultimate-limitation-period"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/296","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=296"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/296\/revisions"}],"predecessor-version":[{"id":298,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/296\/revisions\/298"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=296"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=296"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=296"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}