{"id":300,"date":"2015-09-09T12:24:17","date_gmt":"2015-09-09T16:24:17","guid":{"rendered":"http:\/\/limitations.ca\/?p=300"},"modified":"2015-09-09T12:26:22","modified_gmt":"2015-09-09T16:26:22","slug":"ontario-no-new-limitation-arguments-on-appeal","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=300","title":{"rendered":"Ontario: no new limitation arguments on appeal"},"content":{"rendered":"

Whiteman v. Iamkhong <\/em><\/a>is a reminder from the\u00a0Court of Appeal that a party may not raise a new limitations argument on appeal.<\/p>\n

The plaintiff\u00a0appealed from\u00a0the summary dismissal of his action\u00a0based on the expiry of the limitation period. \u00a0On appeal, he argued that\u00a0sections 10(1) and 16(1)(h) of the Limitations Act <\/em><\/a>nullified the limitations defence, but he hadn’t pleaded this law or raised it during the summary judgment motion. \u00a0The Court refused the appeal:<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u201cany time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.\u201d\u00a0 Section 16(1)(h) states that there is no limitation period in respect of a proceeding \u201carising 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.\u201d<\/p>\n

 <\/p>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.<\/p>\n

 <\/p>\n

[\u2026]<\/p>\n

 <\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The appellant\u2019s 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\u2019s 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.\u00a0 This finding was reasonable on the evidence before the motion judge.<\/p>\n

 <\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In our view, it would be contrary to the interests of justice to entertain the appellant\u2019s argument for the first time on appeal respecting the possible application of s. 16(1)(h) of the Limitations Act.\u00a0 On a motion for summary judgment, a responding party must put its best foot forward or risk losing the motion.\u00a0 The possible application of s. 16(1)(h) to the appellant\u2019s 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.\u00a0 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.\u00a0 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.<\/p>\n

 <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Whiteman v. Iamkhong is a reminder from the\u00a0Court of Appeal that a party may not raise a new limitations argument on appeal. The plaintiff\u00a0appealed from\u00a0the summary dismissal of his action\u00a0based on the expiry of the limitation period. \u00a0On appeal, he argued that\u00a0sections 10(1) and 16(1)(h) of the Limitations Act nullified the limitations defence, but he … Continue reading Ontario: no new limitation arguments on appeal<\/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":[139,138,43,140],"class_list":["post-300","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ontario-act-s-101","tag-ontario-act-s-161h","tag-ontario-court-of-appeal","tag-second-kicks-at-the-can"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/300","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=300"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/300\/revisions"}],"predecessor-version":[{"id":301,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/300\/revisions\/301"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=300"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=300"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=300"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}