Civil Litigation - Striking Pleadings and Limitations. Beaudoin Estate v. Campbellford Memorial Hospital
In Beaudoin Estate v. Campbellford Memorial Hospital (Ont CA, 2021) the Court of Appeal considers a R21 'question of law' determination motion, especially to decide limitations issues:
 Rule 21.01(1)(a) allows a party to move for a determination, before trial, of “a question of law raised by a pleading in an action”, where such determination may dispose of all or part of the action, substantially shorten the trial, or result in a substantial saving of costs. No evidence is admissible on a motion under r. 21.01(1)(a), except with leave of a judge or on consent of the parties: r. 21.01(2)(a).. Kaynes v. BP p.l.c.
 The main principles applicable to a motion to determine a question of law under r. 21.01(1)(a) are well known:
1. The test under r. 21.01(1)(a) is whether the determination of the issue of law is “plain and obvious”, which is the same test that applies under r. 21.01(1)(b) for whether the pleading should be struck because it discloses no reasonable cause of action or defence: Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 2003 CanLII 9923 (ON CA), 68 O.R. (3d) 457 (C.A.), at para. 37; Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis Canada, 2020), at para. 6.168.....
2. The facts pleaded in the statement of claim are assumed to be true, unless they are patently ridiculous or manifestly incapable of proof: Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford), 2016 ONCA 458, 131 O.R. (3d) 273, at para. 12.
3. The statement of claim should be read as generously as possible to accommodate any drafting inadequacies in the pleading. If the claim has some chance of success, it should be permitted to proceed: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at paras. 17-22.
 This court has underscored that a motion under r. 21.01(1)(a) is not the proper procedural vehicle for weighing evidence or making findings of fact: see e.g., McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, 344 O.A.C. 5, at paras. 19-20; Andersen Consulting v. Canada (Attorney General) (2001), 2001 CanLII 8587 (ON CA), 150 O.A.C. 177 (C.A.), at para. 35.
 This court has applied this general principle in a long line of cases in which it has discouraged using r. 21.01(1)(a) to determine limitation period issues except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed: Kaynes v. BP p.l.c., 2021 ONCA 36, at para. 74; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21; Tran v. University of Western Ontario, 2016 ONCA 978, 410 D.L.R. (4th) 527, at paras. 18-21; and Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 762, at paras. 42-45.
 The rationale for this position was recently explained by Feldman J.A. in Kaynes, at para. 81. She noted that discoverability issues are factual and it is unfair to the plaintiff for a motion judge to make such factual findings on a motion to determine a question of law under r. 21.01(1)(a), because that rule prohibits evidence on the motion except with leave of the court or on consent:
In establishing the main rule that a claim should not normally be struck out as statute-barred using r. 21.01(1)(a), the courts have noted that discoverability issues are factual and that the rule is intended for legal issues only where the facts are undisputed. It would therefore be unfair to a plaintiff where the facts are not admitted, to use this rule, which does not allow evidence to be filed except with leave or on consent. But where a plaintiff’s pleadings establish when the plaintiff discovered the claim, so that the issue is undisputed, then the courts have allowed r. 21.01(1)(a) to be used as an efficient method of striking out claims that have no chance of success, in accordance with the principle approved in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at para. 19. Thus, a factual dispute about the discovery date of a cause of action precludes the use of r. 21.01(1)(a) to determine whether a limitation period subject to discoverability has expired, because this rule is limited to determining questions of law raised by a pleading. If the parties have joined issue on disputed facts on the limitations issue, the preferable procedure might be a motion for summary judgment under r. 20, which provides the court with certain fact-finding powers: Kaynes, at para. 80; Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at paras. 21, 23, and 35; and r. 20.04(2.1).
 These principles about the limited scope for using r. 21.01(1)(a) to address discoverability under the Limitations Act, 2002 also apply to fraudulent concealment. Just as factual issues should not be decided in relation to discoverability on a motion under r. 21.01(1)(a), they should also not be decided in relation to fraudulent concealment. To do so would be unfair to a plaintiff when no evidence is admissible on such a motion except with leave of the court or on consent.
 This approach is supported by this court’s decision in Giroux Estate. That case involved an appeal from a decision on a r. 21.01(1) motion refusing to strike as statute-barred a claim against a urologist brought by the deceased patient’s estate. The estate alleged that the urologist had fraudulently concealed his failure to properly treat a malignant tumour in the bladder of the deceased, who died as a result. The urologist submitted that he could not be said to have concealed a fact of which the estate was already aware when the limitation date expired. This court agreed that the facts as pleaded were capable of supporting a finding of fraudulent concealment, and so the action should not be struck as statute-barred. Although Moldaver J.A. (as he then was) for this court acknowledged that the inferences the urologist urged the court to draw from the pleadings as to why the claim was statute-barred “may be borne out” at the end of the day, he highlighted that the case was just at the pleadings stage: at paras. 37, 41.
 The operative question is thus whether the pleadings here raise a factual dispute about the application of the doctrine of fraudulent concealment. I conclude that they do. The factual dispute concerns causation: whether there is a causal connection between the allegedly concealed CT imaging and the appellants’ failure to sue within the limitation period. The appellants assert such a causal connection; the respondents deny it. The motion judge found no causal connection, concluding that the CT images “did not add anything of significance to the [appellants’] knowledge”, and that the “facts necessary to base a cause of action against the [respondents] were known to the [appellants] before the actual CT scans were received”.
 But causation involves a factual inquiry: Clements v. Clements, 2012 SCC 32,  2 S.C.R. 181, at para. 13; Ediger v. Johnston, 2013 SCC 18,  2 S.C.R. 98, at para. 29; and Campbell v. Bruce (County), 2016 ONCA 371, 349 O.A.C. 302, at para. 55, leave to appeal refused,  S.C.C.A. No. 325. Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a).
In Kaynes v. BP p.l.c. (Ont CA, 2021) the Court of Appeal considered the suitability of R21.01(1)(a) 'question of law' motion to decide a limitations issue, focussing on the need to have no residual fact disputes alive [paras 74-81].
. Clark v. Ontario (Attorney General)
In Clark v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered the suitability of a R21 motion to strike pleadings in the context of limitation expiry where none had been pleaded. It also considered whether a limitation issue was an matter of law (it wasn't), as R21.01(1)(a) motions only applied to "questions of law":
The motion was not properly brought under r. 21.01(1)(a)
 The starting point is that an argument that a claim is barred by operation of the Limitations Act is a defence to a claim, and as such it must be pleaded in a statement of defence. Rule 25.07(4) makes this clear: “In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party”.
 The Attorney General seeks to dismiss the officers’ claim on the basis that it is time barred. It may well be, but the Attorney General must specifically so plead and has not done so.
 The second problem is that the Attorney General seeks to use a r. 21.01(1)(a) motion to assert the Limitations Act defence 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 Limitations Act is not a matter of law. This point has been made by this court on several occasions. For example, in Beardsley this court stated as follows, at paras. 21-22:
The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for the determination of a question of law “raised by a pleading”. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Despite these remarks, this court stated in Beardsley that it would be “unduly technical” to require a statement of defence to be delivered if “it 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”: 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 Highway Traffic Act, R.S.O. 1990, c. H. 8, in connection with a claim for property damage only, in circumstances in which the panel noted that the discoverability rule clearly did not apply.
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.
 Although this court has not categorically precluded the use of r. 21.01(1)(a) on limitations matters in subsequent cases, in several cases it has sought to discourage its use. In Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, at para. 116, Laskin J.A. said that a defendant could move to strike a claim based on a limitation defence“[o]nly in the rarest of cases” if the defendant has yet to deliver a statement of defence. A fuller explanation was provided in Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 762, at para. 42, in which the panel stated that “this court’s comment in Beardsley” had “likely been overtaken by the enactment of the Limitations Act, 2002”. The court in Salewski further limited the effect of the Beardsley comment by stating that it “was never intended to apply to a case that is legally or factually complex”: at para. 42.
 Significantly, the panel in Salewski stated at para. 45 that, because the basic limitation period is now premised on the discoverability rule, the application of which raises mixed questions of law and fact, “[w]e therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear the facts are undisputed”.
 The situation contemplated in Salewski – the close of pleadings and the absence of any factual dispute – is very narrow, and this court has continued to discourage the use of r. 21.01(1)(a) motions on limitations matters. In Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 19, this court emphasized that “[t]he analysis required under s. 5(1) of the Limitations Act generally requires evidence and findings of fact to determine. It does not involve a ‘question of law’ within the meaning of rule 21.01(1)(a).” Justice Brown described reliance on r. 21.01(1)(a) to advance a limitation period defence as “a problematic use of the rule”, one that risks unfairness to a responding plaintiff: at paras. 17, 23.
 Kaynes v. BP, P.L.C., 2018 ONCA 337, 81 B.L.R. (5th) 6, does not undermine this approach. Although in that case this court agreed with the motion judge that the limitation issue could be determined under r. 21.01(1)(a), it did so on the basis of the parties’ agreement that there were no material facts in dispute, and in the context of an event-triggered limitation period under the Securities Act, R.S.O. 1990, c. S.5. This limitation period began to run without regard to the plaintiff’s knowledge of the facts giving rise to the cause of action, in contrast to the discovery-based limitation period under the Limitations Act.
 In this case, the Attorney General seeks to strike the officers’ claim under r. 21.01(1)(a) because it is plain and obvious that no additional facts could be pleaded that would alter the conclusion that the limitation period has expired, as in Beardsley. The Attorney General says that the officers’ claim makes clear that they learned the material facts to support their claim against the trial Crown no later than October 18, 2013, and against the appeal Crown no later than December 12, 2013, and that both dates are well outside the two-year limitation period. Accordingly, says the Attorney General, there is no need to file a statement of defence.
 Salewski says otherwise. The Attorney General seeks to diminish the authority of this case, arguing it is not clear whether this court heard argument on the matter and, in any event, that Beardsley is controlling authority that cannot be overturned except by a five-member panel of this court. Further, the Attorney General denies the existence of a novel claim exception, as suggested in Boyce.
 In our view, Salewski is the controlling authority and limitations issues are not properly determined under r. 21.01(1)(a), unless pleadings are closed and the facts are undisputed. But even assuming that the Beardsley comment has not been overtaken by the Limitations Act, this is not an appropriate case in which to apply the exception Beardsley is understood as creating.
 We do not say that there is an exception for novel litigation, nor do we say that this is novel litigation in any event. But it is unusual litigation, insofar as it attempts to impose a duty of care on Crown attorneys, and it is litigation against the Attorney General. As this court indicated at para. 22 of Beardsley, adherence to the rules – allowing the parties to have a complete factual record before the court prior to the determination of limitation defences – is a matter of procedural fairness, a matter of “even greater significance where claims are made against those who administer the law.”
 The Attorney General takes the position that the officers failed to articulate what facts they could plead that would affect the discoverability of their claim for the purposes of the Limitations Act. But the Attorney General is, in essence, attempting to use r. 21.01(1)(a) for a purpose for which it was not designed. There is no obligation on the officers to facilitate its attempt to do so, nor is it appropriate for this court to vindicate a Limitations Act defence on the basis of a record that may well be incomplete.
 Accordingly, for these reasons we would uphold the motion judge’s decision refusing to strike the officers’ claim on the basis that it is time barred.