{"id":908,"date":"2019-05-02T11:19:53","date_gmt":"2019-05-02T15:19:53","guid":{"rendered":"http:\/\/limitations.ca\/?p=908"},"modified":"2019-05-02T11:20:18","modified_gmt":"2019-05-02T15:20:18","slug":"ontario-prejudice-from-an-expired-limitation-period-and-special-circumstances","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=908","title":{"rendered":"Ontario: prejudice from an expired limitation period, and special circumstances"},"content":{"rendered":"

Estate of John Edward Graham v. Southlake Regional Health Centre<\/em><\/a> is a medmal decision noteworthy for its consideration of prejudice arising from the expiry of a limitation period, and a rare application of the special circumstances doctrine to the Trustee Act <\/em><\/a>limitation period.<\/p>\n

The parties agreed that the two-year limitation period in s. 38(3)<\/a> of the Trustee Act<\/em> applied to the proceeding and had expired.\u00a0 The plaintiffs relied on special circumstances to overcome its expiry.\u00a0 The defendant argued that the plaintiffs had failed to rebut the presumption of prejudice arising from the expiry of a limitation period, and that there were no special circumstances.<\/p>\n

The court found that the plaintiff had rebutted the presumption of prejudice.\u00a0 The consideration that informed this finding are worth noting:<\/p>\n

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[59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As the Court of Appeal in\u00a0Mazzuca<\/em>\u00a0summarized:<\/p>\n

Both the related jurisprudence and the rules themselves thus underscore a simple, common-sense proposition:\u00a0 that a party to litigation is not to be taken by surprise or prejudiced in non-compensable ways by late, material amendments after the expiry of a limitation period.\u00a0 If such surprise or actual prejudice is demonstrated on the record, an amendment generally will be denied.[10]<\/a><\/p>\n

[60]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The Court of Appeal has repeatedly confirmed that the loss of a limitation defence gives rise to a presumption of prejudice.[11]<\/a><\/p>\n

[61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In our case, Dr. Law had no notice of the litigation prior to the expiration of the litigation period.\u00a0 I find an inference of prejudice to him is warranted.<\/p>\n

[62]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I accept Dr. Law had no knowledge of this action or that any issue had been raised concerning the case until February 15, 2017 when he was contacted by Scott Graham \u2013 approximately six years after the expiration of the limitation period (February 9, 2011).<\/p>\n

[63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Dr. Law submits that prejudice does arise from such a long delay and an inference of prejudice is warranted.\u00a0 It is submitted the plaintiffs\u2019 motion must fail on the basis of the plaintiffs\u2019 failure to rebut the presumption of prejudice.<\/p>\n

[64]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0I disagree.\u00a0 Notwithstanding the long passage of time and the inference raised in favour of Dr. Law, I find the plaintiffs have rebutted the presumption of prejudice.\u00a0 I do not agree that the presumption of prejudice is unassailable solely due to the passage of time.\u00a0 There are other factors to be weighed.\u00a0 Dr. Law has not offered any evidence to show any non-compensable prejudice if the amendment is granted.\u00a0 Rather, the evidentiary record on this motion establishes the following:<\/p>\n