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Civil Litigation Dicta - Summary Judgment - Limitations. Deluca v. Bucciarelli
In Deluca v. Bucciarelli (Ont CA, 2022) the Court of Appeal considered the onus on a summary judgment motion:[13] First, the appellant argued that the motion judge reversed the burden of proof on a summary judgment motion.
[14] We do not accept this submission. As we have said, the appellant does not dispute that she was aware that the conduct alleged in her statement of claim occurred more than two years before the statement of claim was issued. In these circumstances, it was not up to the respondent to prove a negative, i.e., that the appellant was not prevented by fear from discovering her claim or that he did not assault the complainant. Rather, it was up to the appellant to put her best foot forward and adduce sufficient evidence to demonstrate a genuine issue requiring a trial concerning whether she could rely on either of ss. 5(1)(a)(iv) or 16(1)(h.2)(i) of the Act. The motion judge was not satisfied she had done so. For reasons that we will explain in relation to the remaining grounds of appeal, we see no error in this conclusion. . Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc. [burden]
In Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc. (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal, this from a "partial summary judgment granted in favour of the respondents on the basis of a limitations defence" where "the motion judge erred by reversing the burden of proof on the issue of discoverability".
Here the court addresses the burden on defendants moving for summary judgment on a limitation defence:[15] Defendants who move for summary judgment on the basis of a limitations defence bear the burden of demonstrating that their defence can be made out without the need for a trial. In AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, 168 O.R. (3d) 276, at paras. 34-36, van Rensburg J.A. explained:The expiry of a limitation period is raised by a defendant as an affirmative defence, and the defendant has the burden of proving that defence. When the issue is raised by a defendant in a summary judgment motion, the defendant has the onus of establishing that there is no issue requiring a trial with respect to the limitation period.
A defendant may rely on the presumption in s. 5(2) that the claim was discovered on the day the act or omission on which the claim is based took place. In order to rebut the presumption in s. 5(2) the plaintiff need only prove that its actual discovery of the claim within the meaning of s. 5(1)(a) was not on the date of the events giving rise to the claim. Once the presumption is rebutted, the burden remains on the defendant, who is asserting the defence, to prove that the plaintiff knew or ought reasonably to have known the elements of s. 5(1)(a) more than two years preceding the commencement of the proceeding.
Determining whether an action is statute-barred or declaring when a claim was discovered requires the court to make specific findings of fact about each element set out in s. 5 of the Limitations Act. [Citations omitted; emphasis added.] ....
(3) The motion judge incorrectly reversed the onus
[22] I agree with ECC 125 that the motion judge erred by incorrectly placing the burden on ECC 125 to show that its claim was not reasonably discoverable before December 30, 2014, rather than requiring the respondents to affirmatively establish that the claim was reasonably discoverable before this date.
[23] The motion judge fell into this error by following a line of lower court cases, pre-dating this court’s judgment in AssessNet, that incorrectly treated the presumption in s. 5(2) as applying to the issue of constructive knowledge under s. 5(1)(b), rather than only to the issue of actual knowledge under s. 5(1)(a). The motion judge quoted at length from one such case, Shukster v. Young et al., 2012 ONSC 4807, where Leach J. stated at para. 19:Pursuant to Rule 20, a party moving for summary judgment retains the overall burden of showing that there is no genuine issue requiring trial. However, where a Defendant moves for summary judgment in relation to a statutory limitation period, the evidentiary burden as to the discoverability issue and under Rule 20 effectively shifts to the responding party under section 5(2). [Emphasis added.] Citing Roni Excavating v. Paccar, 2013 ONSC 5192, at para. 23, the motion judge then asserted further that:[Section] 5(2) puts the onus on the plaintiff to satisfy the Court that it would be highly unlikely, if not impossible, to have obtained the necessary information with due diligence. [24] As AssessNet makes clear, these statements of the law are incorrect. The presumption in s. 5(2) of the Limitations Act applies only to the issue of actual knowledge under s. 5(1)(a), but not to the issue of constructive knowledge under s. 5(1)(b). Accordingly, in this case s. 5(2) did not shift the burden of disproving constructive knowledge to ECC 125. Rather, it remained the respondents’ burden to prove that a reasonable person in ECC 125’s position would have discovered the claim relating to HPVI’s unpaid common expense fees before December 30, 2014.
....
[33] As I have already discussed, the question the motion judge should have asked himself was whether the respondents had proven that a reasonable person in Ms. Petruzzi’s situation would have acquired knowledge of the essential elements of ECC 125’s claim at some point before December 30, 2014. In order to find that the respondents had met this burden, the motion judge would have had to “make specific findings of fact about each element” in s. 5(1)(a) that supported the respondents’ position: AssessNet, at para. 36.
[34] Importantly, the motion judge’s finding that Ms. Petruzzi had not been duly diligent because she did not try to obtain the banking records was not sufficient on its own to establish the respondents’ limitations defence. As van Rensburg J.A. explained in Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 24:Due diligence is part of the evaluation of s. 5(1)(b). In deciding when a person in the plaintiff’s circumstances and with his abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Again, whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired.
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