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Limitations Act - Ultimate Limitation Period [s.15]. Wong v. Lui
In Wong v. Lui (Ont CA, 2023) the Court of Appeal, in allowing an appeal, subjects s.15(4)(b) [suspension of running of ultimate limitation period for minors not represented by litigation guardians] to the statutory interpretation text/context/purpose test:(a) Principles and relevant provisions
[18] This appeal involves the interpretation of s. 15(4)(b) of the Act, which, as noted above, provides that the ultimate 15-year limitation period established in s. 15(2) does not apply where “the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim”.
[19] The applicable principles of modern statutory interpretation are well-known. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The court must adopt an interpretation of the statute that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences: see e.g., Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022), at §2.03; York Condominium, at paras. 11, 14, 15; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 79, leave to appeal refused, [2020] S.C.C.A. No. 409; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27.
(b) Historical policy and legislative objectives of limitations statutes
[20] The historical development of limitations statutes and the common law interpretation of their purpose significantly guides the court’s interpretation of s. 15(4)(b) by providing context for understanding the purpose of this provision and how it ought to be interpreted.
[21] While the early common law “knew no limitation periods,” rules setting out “time limits within which actions must be brought, and outside which actions could not be brought” date back as far as Roman law and continued through the Middle Ages: Williams, Limitation of Actions in Canada, 2nd ed (Toronto: Butterworths, 1980), at p. 24; William Ballentine, A Treatise on the Statute of Limitations (New York: C. Wiley, 1812), at p. 9; Henricus de Bractona, De legibus et Consuetudinibus Angliae, Volume 2 (c. 1210-1268)[5].
[22] The earliest English statutory limitation provisions, from which Canadian statutory limitations periods derive their origin, were introduced in the Statute of Merton, 1235, 20 Hen. 3, c.1, c.8, which attached limitation periods to each writ: Graeme Mew, The Law of Limitations, 3rd ed (Toronto: LexisNexis Canada, 2016), at p. 4; Williams, at p. 25. In England, general limitation periods were first introduced through the Statute of Limitations, 1540, 32 Hen. 8, c.2, which dealt with real property, and later through the Statute of Limitations, 1623, 21 Jac. 1, c. 16, which provided limitation periods for actions including “simple contracts and torts”: Mew, at pp. 4-5.
[23] Limitations statutes in Canadian common law provinces “evolved from the English statutes that were inherited on the appropriate reception date”: Mew, at p. 5. Their purpose has remained consistent throughout the last two hundred years: they serve to bar a claimant’s right to commence legal proceedings after a certain period of time. Seen as “statutes of repose” and “statutes of peace”, their fundamental rationale supports the public interest in the end to litigation and to the revisiting of past errors: Deaville v. Boegeman (1984), 1984 CanLII 1925 (ON CA), 14 D.L.R. (4th) 81 (Ont. C.A.), at p. 86; Sable Offshore Energy Inc. v. Canada (Customs and Revenue Agency), 2003 FCA 220, 226 D.L.R. (4th) 673, at para. 20; Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, 1991) at 1.
[24] Finality in litigation is not the only object of limitations statutes. The Act and its predecessors strive to balance the plaintiff’s right to sue with the defendant’s right to certainty and finality: Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641, at para. 24; Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 54. As the Supreme Court, per Moldaver J. for the majority, reiterated in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 68: “Limitation periods are always ‘driven by specific policy choices of the legislatures’…as they attempt to ‘balance the interests of both sides’” (citations omitted).
[25] This balance also underlies the purpose of the ultimate 15-year limitation period in s. 15(2) of the Act. As this court stated in York Condominium, at para. 32, its purpose is “to balance the concern for plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs relating to record-keeping and insurance resulting from continuous exposure to liability.”
[26] Moreover, balanced against the right to finality is the acknowledgement that it would be unfair to bar a person’s right to make a claim while in a condition that renders them unable to take steps to pursue their rights. As a result, limitation periods are suspended by reason of incapacity and age. This is not a new provision; it has existed in one form or another for several hundreds of years: see e.g., Papamonolopoulos v. Board of Education for the City of Toronto (1986), 1986 CanLII 2688 (ON CA), 56 O.R. (2d) 1 (C.A.), at p. 1, leave to appeal refused, 1987 CanLII 5366 (S.C.C.); Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 243.
[27] Indeed, as the Manitoba Court of Appeal noted in Mumford v. Health Sciences Centre (1987), 1978 CanLII 1948 (MB CA), 92 D.L.R. (3d) 64 (Man. C.A.), at p. 65, the legislated exception to limitation periods for minors and those “non compos mentis”, among others, dates back to the Statute of Limitations, 1623, s. 7. The exceptions for disability and minors are grounded in a broad view of incapacity: “those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters”: Murphy v. Welsh; Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 SCR 1069, at p. 1080; Manitoba Metis Federation, at para. 246. Accordingly, the exception to limitation periods for those under legal disability is intended as a mechanism for “ensuring fairness to plaintiffs”: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at paras. 64, 69.
(c) Motion judge’s interpretation
[28] In my respectful view, the motion judge did not take into account the specific purposes of the exceptions for minors and those under disability when coming to her interpretation of s. 15(4)(b). By failing to interpret s. 15(4)(b) in light of the specific purposes of these exceptions, the motion judge deviated from the legislative purpose that had remained constant for several hundreds of years in the section’s predecessors, such as in s. 47 of the former Act.
[29] In particular, the motion judge’s approach caused her to distinguish s. 47 of the former Act from s. 15(4) of the current Act, finding that “[t]he language of s. 47 of the Former Act is markedly different from that of s. 15(4)(b) of the Act. Section 47 of the Former Act explicitly required a cause of action to accrue to a minor as a condition of suspending the limitation period. Such an express condition is absent from the text of s. 15(4)(b) of the current Act.”
[30] Respectfully, this was an error. The difference in language highlighted by the motion judge does not derogate from the underlying purpose of s. 47 in the former Act. This purpose is the centuries-old protection of persons under a legal disability without a litigation guardian who are presumed not to know their rights and are incapable of preserving them by starting proceedings.
[31] Section 47 of the former Limitations Act provides:Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind. [32] Section 47 reflects the legislative purpose of its predecessors that finds its origin in the early laws of England, namely, that “since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them”: Papamonolopoulos, at p. 3. Accordingly, s. 47 and its predecessors toll limitation periods for minors because “an infant is unable adequately to look after his own affairs, including the bringing of actions”: Papamonolopoulos, at p. 3, citing to Williams, at p. 203; Bisoukis v. Brampton (City) (1999), 1999 CanLII 3825 (ON CA), 46 O.R. (3d) 417 (C.A.), at para. 33.
[33] This purpose informs and continues into the present Act. Nothing in the text of s. 15(4)(b) ousts the historical public purpose reflected in s. 47 of the former Act and its predecessors. Without express language or legislative intention to the contrary, it is presumed that the legislature did not intend to make significant changes to the law, as it is “improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness”: Peter St. John Langan, Maxwell on the Interpretation of Statutes, 12th ed (London: Sweet & Maxwell, 1969) at p. 116; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21.
[34] The exceptions to the limitation periods provided for by the current Act expand the situations where a limitation period may be suspended: see e.g., Carmichael, at para. 88. Section 15(4) provides for certain limited exceptions when the 15-year limitation period established by s. 15(2) does not run: when a person is under a disability because of his or her physical, mental or psychological condition, or is a minor, and is not represented by a litigation guardian, or where the claim has been wilfully concealed or the person with the claim has been wilfully misled about the appropriateness of a proceeding as a means of remedying the injury, loss or damage. Importantly, underlying each exception is the inability of the person with the claim to commence a proceeding, whether because of disability or fraud or misrepresentation.
[35] Moreover, the motion judge’s narrow approach to s. 15(4)(b) undermines not only the historical and legislative purpose of this provision, but also the balancing objective of the ultimate 15-year limitation period set out in s. 15(2) of the Act. The motion judge correctly stated that the purpose of the ultimate limitation period is to “provide certainty and finality to a defendant’s potential liability without unduly restricting a claimant’s access to justice”. However, the motion judge’s approach defeats this purpose because it defines a limitation period entirely by the plaintiff’s age without regard to when the claim actually arises. This is inconsistent with s. 15(2) that provides for the commencement of the ultimate limitation period from “the day on which the act or omission on which the claim is based took place”. It is not subject to discoverability principles: York Condominium, at para. 2.
[36] The motion judge failed to apply a contextual and purposive approach to s. 15(4)(b). Importantly, she failed to give effect to all the words in s. 15(4)(b), as well as to its meaning and purpose in relation to s. 15(2) and the entirety of the Act. As a result, the analysis must be undertaken afresh.
(d) Contextual and purposive interpretation of s. 15(4)(b) of the Act
[37] I start with the plain language of s. 15(4)(b) of the Act. First, “the person with the claim is a minor”. This phrase, written in the present tense, links the person with the claim to the present state of being a minor. If it were meant to include persons who were minors at any time during the running of the ultimate limitation period, the text would have included the past tense, namely, “the person with the claim who was or is a minor”. It did not do so.
[38] Moreover, the phrase, “is not represented by a litigation guardian in relation to the claim”, is conjunctive with the words, “the person with the claim”. Again, the use of the present tense indicates the present time when the person who has the claim is a minor. The only reason for the person with a claim to have a litigation guardian is because the person with a claim is under a legal disability and cannot advance a claim on his or her own behalf: see rr. 1.03 and 7.01(1) of the Rules of Civil Procedure. This harkens back to the historical public policy behind the tolling of limitation periods for minors who are unable to commence actions on their own.
[39] This interpretation of s. 15(4)(b) with respect to the ultimate 15-year limitation period is consistent with this court’s interpretation of ss. 6 and 7 of the current Act with respect to the two-year limitation period under s. 4 of the Act. This court’s interpretation of these similarly worded provisions assists in the interpretation of s. 15(4)(b). The relevant provisions of ss. 6 and 7 of the Act are as follows:Minors
6 The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is a minor; and
(b) is not represented by a litigation guardian in relation to the claim.
Incapable persons
7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim. [40] In Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, leave to appeal refused, [2017] S.C.C.A. No. 289, this court interpreted s. 6(1)(b) and the question of when a minor “is not represented by a litigation guardian in relation to the claim”. At para. 30, Weiler J.A. interpreted the overall purpose of the Act: “The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made”. Her interpretation clearly links the temporal connection between the “person with the claim” and the period of time the person was incapable of starting an action because of their minority. That the section speaks to the contemporaneity between the incapacity and the claim repeats in Weiler J.A.’s description of the function of a litigation guardian. She stated that “[w]here the person with a claim is a minor, the Act requires that the minor be ‘represented by a litigation guardian in relation to the claim’” (emphasis added) and that “[t]he word ‘represented’ signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do”: at para. 30.
[41] Carmichael involved the interpretation of s. 7(1)(a) of the Act and the incapacity of a claimant to start an action during the claimant’s period of incapacity because of disability. This court clearly interpreted the provisions to mean that the tolling of the limitation period was intended to operate only during the period that the claimant had the claim and, during the same period, was incapable of commencing a proceeding with respect to that claim. The court stated that s. 7(1)(a) was focussed only on “the person’s incapacity to pursue the particular claim at issue”: at paras. 88-89; and that s. 7(1) “suspends the running of the limitation period in s. 4 only ‘during any time’ in which the person is incapable, and thus begins to run again once the incapacity ceases”: at para. 103. This again points to the temporal nature of the limitation period exceptions for age and incapacity, as the emphasis is on the incapacity that occurs while the person has a legal claim to pursue.
[42] Limitation periods only apply to claims; they do not apply to persons who do not have claims. Moreover, an adult with a claim who is not under a disability has no need of the kind of accommodation and protection that the postponement of limitation periods was historically designed to achieve.
[43] Applying the requisite contextual and purposive approach, the only interpretation on a plain reading of s. 15(4)(b) that is consonant with the other provisions of the Act, the fundamental purpose behind limitations statutes, and the centuries-old policy objectives of the legislation with respect to minors is that it only postpones the running of the ultimate limitation period for minors who have claims that arose when they were minors.
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[47] Section 15(5) of the Act places the onus squarely on the person with the claim to prove that paragraph (4) applies. Ms. Wong has failed to do so.
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