{"id":930,"date":"2019-08-28T22:22:20","date_gmt":"2019-08-29T02:22:20","guid":{"rendered":"http:\/\/limitations.ca\/?p=930"},"modified":"2019-08-28T22:24:54","modified_gmt":"2019-08-29T02:24:54","slug":"ontario-court-of-appeal-says-r-21-isnt-for-limitations-defences","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=930","title":{"rendered":"Ontario: Court of Appeal says (again) that r. 21 isn’t for limitations defences"},"content":{"rendered":"

The Court of Appeal\u2019s decision in Clark v. Ontario (Attorney General)<\/a>\u00a0<\/em>is another<\/a> emphatic instruction not to bring motions for judgment on a limitations defence under r. 21:<\/p>\n

\n

[<\/a>40]\u00a0\u00a0 \u00a0\u00a0\u00a0The second problem is that the Attorney General seeks to use a\u00a0r. 21.01(1)<\/a>(a) motion to assert the\u00a0Limitations Act<\/em>\u00a0defence that it has not pleaded. That rule involves the determination of a question of law raised in a pleading, and it is clear that the application of the\u00a0Limitations Act<\/em>\u00a0is not a matter of law. This point has been made by this court on several occasions. For example, in\u00a0Beardsley<\/em><\/span>\u00a0this court stated as follows, at paras.\u00a021-22<\/a>:<\/p>\n

The motion to strike based on the expiry of a limitation period could only be made pursuant to\u00a0rule 21.01(1)<\/a>(a), which provides that a party may move for the determination of a question of law \u201craised by a pleading<\/i>\u201d. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded.<\/p>\n

\u2026<\/p>\n

Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law.<\/p>\n

[<\/a>41]\u00a0\u00a0 \u00a0\u00a0\u00a0Despite these remarks, this court stated in\u00a0Beardsley<\/em><\/span>\u00a0<\/i>that it would be \u201cunduly technical\u201d to require a statement of defence to be delivered if \u201cit is plain and obvious from a review of the statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired\u201d: at para. 21. To the extent that this comment created an exception, it was extremely limited in scope, as the example given makes clear: the expiry of the two-year limitation period under the\u00a0Highway Traffic Act<\/em>,<\/em>\u00a0<\/i>R.S.O. 1990, c. H. 8<\/a>, in connection with a claim for property damage only, in circumstances in which the panel noted that the discoverability rule clearly did not apply.<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0\u00a0Although this court has not categorically precluded the use of\u00a0r. 21.01(1)<\/a>(a) on limitations matters in subsequent cases, in several cases it has sought to discourage its use. In\u00a0Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc.<\/em>,\u00a02012 ONCA 850 (CanLII)<\/span><\/a>,\u00a0113 O.R. (3d) 673<\/span>, at para.\u00a0116<\/a><\/span>, Laskin J.A. said that a defendant could move to strike a claim based on a limitation defence\u201c[o]nly in the rarest of cases\u201d if the defendant has yet to deliver a statement of defence. A fuller explanation was provided in\u00a0Salewski v. Lalonde<\/em>,\u00a02017 ONCA 515 (CanLII)<\/span><\/a>,\u00a0137 O.R. (3d) 762<\/span>, at para.\u00a042<\/a><\/span>, in which the panel stated that \u201cthis court\u2019s comment in\u00a0Beardsley<\/em><\/span>\u201d had \u201clikely been overtaken by the enactment of the\u00a0Limitations Act<\/em>, 2002<\/a>\u201d. The court in\u00a0Salewski<\/em>\u00a0<\/i>further limited the effect of the\u00a0Beardsley<\/i><\/span>\u00a0comment by stating that it \u201cwas never intended to apply to a case that is legally or factually complex\u201d: at para. 42.<\/p>\n

[<\/a>43]\u00a0\u00a0 \u00a0\u00a0\u00a0Significantly, the panel in\u00a0Salewski<\/em><\/span>\u00a0stated at para.\u00a045<\/a>\u00a0that, because the basic limitation period is now premised on the discoverability rule, the application of which raises mixed questions of law and fact, \u201c[w]e therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under\u00a0rule 21.01(1)<\/a>(a) unless pleadings are closed and it is clear the facts are undisputed\u201d.<\/p>\n

[<\/a>44]\u00a0\u00a0 \u00a0\u00a0\u00a0The situation contemplated in\u00a0Salewski<\/em><\/span>\u00a0\u2013 the close of pleadings and the absence of any factual dispute \u2013 is very narrow, and this court has continued to discourage the use of\u00a0r. 21.01(1)<\/a>(a) motions on limitations matters. In\u00a0Brozmanova v. Tarshis<\/em>,\u00a02018 ONCA 523 (CanLII)<\/span><\/a>,\u00a081 C.C.L.I. (5th) 1<\/span>, at para.\u00a019<\/a><\/span>, this court emphasized that \u201c[t]he analysis required under s. 5(1) of the\u00a0Limitations Act<\/em><\/i>generally requires evidence and findings of fact to determine. It does not involve a \u2018question of law\u2019 within the meaning of\u00a0rule 21.01(1)<\/a>(a).\u201d Justice Brown described reliance on\u00a0r. 21.01(1)<\/a>(a) to advance a limitation period defence as \u201ca problematic use of the rule\u201d, one that risks unfairness to a responding plaintiff: at paras. 17, 23.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Court of Appeal\u2019s decision in Clark v. Ontario (Attorney General)\u00a0is another emphatic instruction not to bring motions for judgment on a limitations defence under r. 21: [40]\u00a0\u00a0 \u00a0\u00a0\u00a0The second problem is that the Attorney General seeks to use a\u00a0r. 21.01(1)(a) motion to assert the\u00a0Limitations Act\u00a0defence that it has not pleaded. That rule involves the … Continue reading Ontario: Court of Appeal says (again) that r. 21 isn’t for limitations defences<\/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":[190,192,43,426,365],"class_list":["post-930","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-civil-procedure","tag-creative-or-obnoxious-use-of-the-rules-of-civil-procedure","tag-ontario-court-of-appeal","tag-ontario-rules-of-civil-procedure-r-21","tag-ontario-rules-of-civil-procedure-r-21-011a"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/930","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=930"}],"version-history":[{"count":4,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/930\/revisions"}],"predecessor-version":[{"id":934,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/930\/revisions\/934"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=930"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=930"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=930"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}