<\/p>\n
Two aspects of the Court of Appeal decision in Abrahamovitz v. Berens <\/em><\/a>are noteworthy.<\/p>\n First, the court explains why the expiry of the limitation period is a defence that must be pleaded in enough detail to makes this a candidate for leading decision on the principle:<\/p>\n [<\/a>30]\u00a0\u00a0 \u00a0\u00a0\u00a0This court explained in\u00a0Beardsley v. Ontario<\/em>\u00a0(2001),\u00a02001 CanLII 8621 (ON CA)<\/a>,\u00a057 O.R. (3d) 1 (C.A.)<\/span>, at para. 21<\/span>\u00a0that \u201cthe expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded\u201d. See also:Strong v. Paquet Estate<\/em>\u00a0(2000),\u00a02000 CanLII 16831 (ON CA)<\/a>,\u00a050 O.R. (3d) 70 (C.A.)<\/span>, at paras. 35-37<\/span>;\u00a0<\/em>Tran v. University of Western Ontario<\/em>,\u00a02016 ONCA 978<\/span>\u00a0(CanLII)<\/a>,\u00a0410 D.L.R. (4th) 527<\/span>, at para. 18<\/span>; and\u00a0Salewski v. Lalonde<\/em>,\u00a02017 ONCA 515<\/span>\u00a0(CanLII)<\/a>,\u00a0137 O.R. (3d) 750<\/span>, at para. 43<\/span>.<\/p>\n [<\/a>31]\u00a0\u00a0 \u00a0\u00a0\u00a0There are two aspects to the statement from\u00a0Beardsley<\/em>. One is that from a procedural fairness point of view, a plaintiff is entitled to plead in response to a limitations defence, so that if a motion is brought to dismiss the claim, the court will have all the facts relied on to assess discoverability, or whatever other factors a plaintiff may wish to raise in response:\u00a0Beardsley<\/em>, at para. 22<\/em>;Strong Estate<\/em>, at para. 38<\/em>;\u00a0Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc.<\/em>,\u00a02012 ONCA 850<\/span>\u00a0(CanLII)<\/a>,\u00a0113 O.R. (3d) 673<\/span>, at paras. 115-116<\/span>; and\u00a0Greatrek Trust S.A.\/Inc. v. Aurelian Resources Inc.<\/em>,\u00a0[2009] O.J. No. 611 (Ont. S.C.J.)<\/span>, at para. 18<\/span>.<\/p>\n [<\/a>32]\u00a0\u00a0 \u00a0\u00a0\u00a0The requirement that an affirmative defence, including a limitations defense, be pleaded to avoid surprise to the opposite party is reflected in\u00a0r. 25.07(4)<\/a>\u00a0of the\u00a0Rules of Civil Procedure<\/a><\/em>, which provides:<\/p>\n In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party\u2019s pleading.<\/p>\n [<\/a>33]\u00a0\u00a0 \u00a0\u00a0\u00a0The second aspect of the statement from\u00a0Beardsley<\/em>, however, is more germane to this case. A limitations defence is \u201cjust that, a defence\u201d:\u00a0Lacroix (Litigation Guardian of) v. Dominique<\/em>,\u00a02001 MBCA 122<\/span>\u00a0(CanLII)<\/a>,\u00a0202 D.L.R. (4th) 121<\/span>, at para. 18<\/span>. A defendant chooses whether or not to rely on a limitations defence, but is not obliged to do so: Graeme Mew, Debra Rolph, & Daniel Zacks,\u00a0The Law of Limitations<\/em>, 3rd ed. (Toronto: LexisNexis Canada Inc., 2016) p.166. See\u00a0e.g.<\/i>:\u00a0Strong Estate<\/em><\/i>, at paras. 35-40; and\u00a0<\/em>Girsberger v. Kresz<\/em>\u00a0(2000),\u00a02000 CanLII 22406 (ON SC)<\/a>,\u00a050 O.R. (3d) 157 (C.A.)<\/span>, at para. 13<\/span>.<\/p>\n [<\/a>34]\u00a0\u00a0 \u00a0\u00a0\u00a0The fact that the choice belongs to the defendant is codified in\u00a0s. 22<\/a>\u00a0of the\u00a0Limitations Act, 2002<\/a><\/em>, which allows a limitation period to be suspended or extended by agreement.<\/p>\n [<\/a>35]\u00a0\u00a0 \u00a0\u00a0\u00a0This is a very important and useful provision that allows parties to a potential claim to suspend the running of a limitation (toll the limitation period) to allow them to conduct investigations or settlement discussions, without pressure on the claimant to commence the action unnecessarily. It promotes judicial economy and is cost-effective for the parties.<\/p>\n [<\/a>36]\u00a0\u00a0 \u00a0\u00a0\u00a0Obviously, this provision would be ineffective if another party could assert the limitation period in spite of the defendant\u2019s agreement to toll the limitation period, or if the action became a nullity on the expiry of the limitation period. See for example,\u00a0Schreiber v. Lavoie\u00a0<\/em>(2002),<\/span><\/em>\u00a02002 CanLII 49430 (ON SC)<\/a>,\u00a059 O.R. (3d) 130 (S.C.J.)<\/span>, where a third party was not entitled to rely on r. 29.05(1) (a rule which allows a third party to plead a defence not raised by the defendant) to assert a limitations defense that the defendant had expressly agreed it would not rely on.<\/p>\n<\/blockquote>\n Second, there is a reminder that special circumstances doctrine is of no application:<\/p>\n [<\/a>24]\u00a0\u00a0 \u00a0\u00a0\u00a0I would not accept this argument for two reasons. First, the Estate has not commenced any proceeding or claimed any relief. The essence of this argument amounts to invocation of the old common law doctrine of special circumstances that no longer applies under the\u00a0Limitations Act, 2002<\/a><\/em>. See:\u00a0Joseph v. Paramount Canada’s Wonderland<\/em>,\u00a02008 ONCA 469<\/span>\u00a0(CanLII)<\/a>,\u00a090 O.R. (3d) 401<\/span><\/span>. The Estate is essentially saying that because all of the facts have already been pleaded in the action, there is no surprise and no prejudice to the defendants (or other parties) to allow the Estate to be added as a party now, even though the limitation period has expired.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" Two aspects of the Court of Appeal decision in Abrahamovitz v. Berens are noteworthy. First, the court explains why the expiry of the limitation period is a defence that must be pleaded in enough detail to makes this a candidate for leading decision on the principle: [30]\u00a0\u00a0 \u00a0\u00a0\u00a0This court explained in\u00a0Beardsley v. Ontario\u00a0(2001),\u00a02001 CanLII … Continue reading Ontario: The Court of Appeal reminds that limitations defences are affirmative<\/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":[288,190,454,43,36,121],"class_list":["post-754","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-affirmative-defence","tag-civil-procedure","tag-less-than-special-circumstances","tag-ontario-court-of-appeal","tag-pleading","tag-special-circumstances"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/754","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=754"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/754\/revisions"}],"predecessor-version":[{"id":755,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/754\/revisions\/755"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=754"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=754"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=754"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}