{"id":812,"date":"2018-07-05T09:18:00","date_gmt":"2018-07-05T13:18:00","guid":{"rendered":"http:\/\/limitations.ca\/?p=812"},"modified":"2018-07-05T09:32:52","modified_gmt":"2018-07-05T13:32:52","slug":"ontario-court-of-appeal-says-dont-use-r-21-011a-to-advance-limitations-defences","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=812","title":{"rendered":"Ontario: Court of Appeal says don’t use r. 21.01(1)(a) to advance limitations defences"},"content":{"rendered":"

In\u00a0Brozmanova v. Tarshis<\/em><\/a>, the Court of Appeal has brought certainty to the question of whether a defendant may advance a limitations defence in a r. 21.01(1)(a) motion.\u00a0 The answer is no.\u00a0 \u00a0Rule 21.01(1)(a) is for the determination of questions of law.\u00a0 The expiry of the limitation period is a question of fact (or mixed fact and law).\u00a0 Further, evidence is not admissible without leave under r. 21.01(1)(a), which puts the plaintiff in the unfair position of needing to seek leave to admit the evidence relevant to the limitations defence when it should be admissible as of right:<\/p>\n

[10]\u00a0\u00a0 \u00a0\u00a0\u00a0The\u00a0Rules of Civil Procedure<\/a><\/em>\u00a0make available two sets of procedural devices by which a party can seek to dispose finally of a proceeding on a contested basis.<\/p>\n

[11]\u00a0\u00a0 \u00a0\u00a0\u00a0One set is evidence-based, under which the parties adduce evidence by various means, on the basis of which the court decides whether to grant or dismiss a proceeding. The\u00a0Rules<\/em>\u00a0permit or offer several standard evidence-based procedural devices by which to obtain such a final adjudication on the merits: (i) the conventional trial; (ii) the hybrid trial; (iii) two forms of summary judgment \u2013 rules 20.04(2)(a) and 20.04(2)(b); and (iv) a rule 38 application.<\/p>\n

[12]\u00a0\u00a0 \u00a0\u00a0\u00a0The second set of procedural devices enables a party to ask the court to determine a question of law that may dispose of all or part of a proceeding. These law-based devices include: (i) a rule 22 special case; (ii) rule 21.01(1)(a), where a question of law is raised by a pleading; and (iii) rule 21.01(1)(b), where a pleading discloses \u201cno reasonable cause of action or defence\u201d.<\/p>\n

[13]\u00a0\u00a0 \u00a0\u00a0\u00a0The law-based character of the devices available under rules 21.01(1)(a) and (b) is reinforced by the limits placed on the use of evidence on motions brought under those rules. No evidence is admissible on a \u201cno reasonable cause of action\u201d motion; nor is evidence admissible on a \u201cquestion of law\u201d motion, except with leave of the judge or on consent of the parties: rule 21.01(2).<\/p>\n

[14]\u00a0\u00a0 \u00a0\u00a0\u00a0The rationale for these prescriptions is a simple one: the allegations asserted in the pleading, which the court must accept as provable at trial, are sufficient to determine the question of law or whether the pleading discloses a cause of action or defence recognized by law: see\u00a0Hunt v. Carey Canada Inc.<\/em>,\u00a01990 CanLII 90 (SCC)<\/a>,\u00a0[1990] 2 S.C.R. 959, at pp. 980, 988 and 990-991. No further facts are required to determine the legal sufficiency of the claim.<\/p>\n

[15]\u00a0\u00a0 \u00a0\u00a0\u00a0In the present case, Dr. Tarshis was sued for conduct as a medical practitioner. He and Ms. Brown are represented by a law firm with long experience in representing medical practitioners. They sought to dismiss Ms. Brozmanova\u2019s action relying on two law-based rules: 21.01(1)(a) and (b).<\/p>\n

The \u201cquestion of law\u201d under rule 21.01(1)(a)<\/p>\n

[16]\u00a0\u00a0 \u00a0\u00a0\u00a0The \u201cquestion of law\u201d the respondents raise under rule 21.01(1)(a) is that Ms. Brozmanova commenced her action outside of the two-year limitation period.<\/p>\n

[17]\u00a0\u00a0 \u00a0\u00a0\u00a0Relying on rule 21.01(1)(a) to advance a limitation period defence is a problematic use of the rule. Some decisions of this court characterize the issue of whether a plaintiff has commenced a proceeding within the limitation period as one involving a question of fact:\u00a0Pepper v. Zellers Inc.<\/em>\u00a0(2006),\u00a02006 CanLII 42355 (ON CA)<\/a>,\u00a083 O.R. (3d) 648 (C.A.), at para. 19; and\u00a0Arcari v. Dawson<\/em>,\u00a02016 ONCA 715\u00a0(CanLII)<\/a>,\u00a0134 O.R. (3d) 36, at para. 9, leave to appeal refused, [2016] S.C.C.A. No. 522. Others describe it as involving a question of mixed fact and law:\u00a0Salewski v. Lalonde<\/em>,\u00a02017 ONCA 515\u00a0(CanLII)<\/a>,\u00a0137 O.R. (3d) 762, at para. 45; and\u00a0Ridel v. Goldberg<\/em>,\u00a02017 ONCA 739\u00a0(CanLII)<\/a>, at para. 12. Regardless, it does not involve a question of law.<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0\u00a0In the basic case, the court must ascertain \u201cthe day on which the claim was discovered\u201d:\u00a0Limitations Act, 2002<\/a><\/em>, S.O. 2002, c. 24, Sched. B, s. 4 (the \u201cLimitations Act<\/em>\u201d). This, in turn, requires making two findings of fact: (i) the day on which the person first knew of the four elements identified by s. 5(1)(a)(i)-(iv) of the\u00a0Limitations Act<\/em>;[1]<\/a>\u00a0and (ii) under s. 5(1)(b), \u201cthe day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in\u201d s. 5(1)(a). The earliest of the two dates is the date on which the claim is discovered: s. 5(1).<\/p>\n

[19]\u00a0\u00a0 \u00a0\u00a0\u00a0The analysis required under s. 5(1) of the\u00a0Limitations Act\u00a0<\/em>generally requires evidence and findings of fact to determine. It does not involve a \u201cquestion of law\u201d within the meaning of rule 21.01(1)(a).<\/p>\n

[20]\u00a0\u00a0 \u00a0\u00a0\u00a0Yet, here the respondents invoked a law-based rule to establish a largely fact-based defence. I recognize, as respondents\u2019 counsel submits, that some jurisprudence exists that has allowed a defendant to resort to rule 21.01(1)(a) to determine its limitations defence \u201cwhere it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired\u201d: see the commentary on rule 21.01(1)(a) in Todd. L. Archibald, Gordon Killeen & James C. Morton,\u00a0Ontario Superior Court Practice, 2018<\/em>\u00a0(Toronto: LexisNexis Canada, 2017), at p. 1128. See also Paul M. Perell & John W. Morden,\u00a0The Law of Civil Procedure in Ontario<\/em>,\u00a0<\/em>3d ed. (Toronto: LexisNexis Canada, 2017), at p. 611.<\/p>\n

[21]\u00a0\u00a0 \u00a0\u00a0\u00a0However, courts must always remember that permitting a defendant to move under 21.01(1)(a) to establish a limitations defence could prove unfair to a plaintiff, especially a self-represented one. By selecting rule 21.01(1)(a) as the procedural means to adjudicate its fact-based limitations defence, a defendant puts a plaintiff in the position where she cannot, as of right, file evidence to explain when she discovered her claim. Instead, she must seek leave of the court.<\/p>\n

[22]\u00a0\u00a0 \u00a0\u00a0\u00a0A plaintiff who risks the dismissal of her action on the basis of a limitations defence should not have to ask a court for permission to file evidence on the issue of when she discovered her claim. She should be entitled to do so as of right. It is unfair for a defendant to attempt, tactically, to deprive her of that right and put her to the unnecessary expense (and risk) of asking permission to do so.<\/p>\n

[23]\u00a0\u00a0 \u00a0\u00a0\u00a0Notwithstanding the jurisprudence that opens the rule 21.01(1)(a) door to some efforts to prove a limitations defence, in my respectful view such an approach risks working an unfairness to a responding plaintiff. Requiring a defendant to move under an evidence-based rule \u2013 either rule 20 (summary judgment) or rule 51.06(2) (concerning admissions of the truth of facts in a pleading) \u2013 avoids such potential unfairness and is to be preferred.<\/p>\n<\/blockquote>\n

This strikes me as an excellent, well-reasoned decision.<\/p>\n

The Court also noted that it would have been available to the defendant to move under r. 51.06(2) on the basis that the plaintiff had admitted discovery of her claim in the statement of claim:<\/p>\n

\n

[34]\u00a0\u00a0 \u00a0\u00a0\u00a0The material facts pleaded by Ms. Brozmanova at paras. 8-9 and 15-16 of her statement of claim were admissions of the truth of certain facts. She clearly pleaded that in 2009, as a result of dealing with an insurance company on a matter regarding her ankle injury, she discovered that her OHIP record contained entries for billings by Dr. Tarshis, which she alleges were fraudulent.<\/p>\n

[35]\u00a0\u00a0 \u00a0\u00a0\u00a0Given the admissions in her pleading, it would have been open to the respondents to move on those admitted material facts to dismiss the claim on the basis that Ms. Brozmanova had discovered it in 2009 and therefore the action was statute-barred: rules 20 or 51.06(2).[3]<\/a>\u00a0In 2009, she knew that some \u201cdamage\u201d had occurred within the meaning of s. 5(1)(a) of the\u00a0Limitations Act\u00a0<\/em>because she knew that her actual position was worse than her position before:\u00a0Hamilton (City) v. Metcalfe & Mansfield Capital Corporation<\/em>,\u00a02012 ONCA 156\u00a0(CanLII)<\/a>,\u00a0290 O.A.C. 42, at para. 42. That the \u201cdamage\u201d she discovered in 2009 was not the same damage for which she sought recovery in her action \u2013 her alleged inability in 2015 to purchase travel insurance \u2013 does not matter. Knowledge of \u201csome damage\u201d is sufficient for the cause of action to accrue and to start the limitation period:\u00a0Hamilton<\/em>, at para. 61.<\/p>\n<\/blockquote>\n

While I’ve not seen a limitation defence advanced using this procedure, it makes good sense for those rare circumstances where a plaintiff unwittingly pleads facts that demonstrate discovery of a claim.<\/p>\n

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

In\u00a0Brozmanova v. Tarshis, the Court of Appeal has brought certainty to the question of whether a defendant may advance a limitations defence in a r. 21.01(1)(a) motion.\u00a0 The answer is no.\u00a0 \u00a0Rule 21.01(1)(a) is for the determination of questions of law.\u00a0 The expiry of the limitation period is a question of fact (or mixed fact … Continue reading Ontario: Court of Appeal says don’t use r. 21.01(1)(a) to advance 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-812","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":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=812"}],"version-history":[{"count":2,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/812\/revisions"}],"predecessor-version":[{"id":814,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/812\/revisions\/814"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}