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Limitations Act - Ultimate Limitation Period [s.15] (2). Paterson v. Royal Bank of Canada
In Paterson v. Royal Bank of Canada (Ont CA, 2026) the Ontario Court of Appeal dismissed a plaintiff's liability appeal, here brought against an order "striking out his Statement of Claim[1] on a motion under r. 21 [SS: "from a determination of a question of law under r. 21.01(1)"] of the Rules of Civil Procedure".
Here the court considers the Limitations Act s.15(2) ['Ultimate limitation period'] - and the potential operation of the s.15(4)(c) ['Period not to run'] 'wilfully conceived' exception:The Limitation Period Issue
1. The Ultimate Limitation Period
[33] Section 15 of the Limitations Act provides for an “ultimate” limitation period of 15 years that runs from the day on which the act or omission on which the claim is based took place, subject to certain exceptions. One exception is for the period during which there was wilful concealment by the person against whom the claim is made. The relevant parts of s. 15 are as follows:15. (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
[....]
(4) The limitation period established by subsection (2) does not run during any time in which,
[…]
(c) the person against whom the claim is made,
(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or
(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.
(5) The burden of proving that subsection (4) applies is on the person with the claim. [34] Because of the transition provisions in the Limitations Act, the starting date for the running of the ultimate limitation period is the later of the date when the act or omission on which the claim is based took place and January 1, 2004 (the date when the Limitations Act came into effect): York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, at para. 2, leave to appeal refused, [2007] S.C.C.A. No. 154. This means that, since the Statement of Claim contains no allegations of acts or omissions by the respondents after 2002 (a fact that is not contested by the appellant), absent wilful concealment, the ultimate limitation period would have expired on January 1, 2019 (and not, as the motion judge stated, and the respondents on appeal reiterate, in 2017). In any event, there is no question that, except for the potential operation of s. 15(4)(c), the claims asserted in the Statement of Claim, which was commenced in 2022, would be barred by s. 15.
....
[39] The appellant suggests that the operation of s. 15(2) is suspended for any period during which there was wilful concealment by the respondents, irrespective of whether he knew of the acts or omissions on which his claims are based. I disagree. Properly interpreted, the exception in s. 15(4)(c) provides for the interruption of the ultimate limitation period only where the concealment and/or misleading by a defendant have prevented the plaintiff’s discovery of the claim. Because the appellant knew of sufficient facts to initiate a claim, a pleading of wilful concealment cannot assist in avoiding the limitation period.
[40] The ultimate limitation period of 15 years begins to run on “the day on which the act or omission on which the claim is based took place.” While the ultimate limitation period does not depend on the discoverability of the claim, the factors outlined in s. 15(4)(c) for the operation of wilful concealment mirror the discoverability criteria in s. 5 of the Limitations Act.
[41] The rationale for the interruption of the ultimate limitation period during a period of wilful concealment or wilful misleading is to prevent unfairness to a plaintiff that would result if such conduct by a defendant prevented them from knowing they had a claim. There would be no unfairness if, notwithstanding such conduct, the claim was known or discoverable. Accordingly, the ultimate limitation period is tolled under s. 15(4) only for the duration of any period when the actions of the defendants prevented the claimant from meeting the discoverability criteria. If the claimant has sufficient knowledge of the facts in relation to the discoverability criteria listed in s. 5 and reflected in s. 15(4)(c)(i) and (ii), the limitation period is no longer tolled regardless of the defendant’s efforts at concealment.
[42] In other words, there is a “causative element” to wilful concealment: “the plaintiff must be ignorant of the cause of action because of the misconduct of the defendant”: Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 62, leave to appeal refused, [2019] S.C.C.A. No. 91, at para. 62, quoting Colin v. Tan, 2016 ONSC 1187, 81 C.P.C. (7th) 130, at paras. 44-47. If, notwithstanding the defendant’s best efforts, the plaintiff knows of the cause of action and the appropriateness of bringing a proceeding, the causal link is absent and wilful concealment no longer operates to suspend the ultimate limitation period. As Feldman J.A., dissenting, but not on this point, stated in Zeppa, at para. 109, “[a]s outlined in s. 15(4) of the Act, the effect of a defendant's fraudulent concealment of essential facts is to toll the limitation period until the plaintiff learns about the concealed facts (either from the defendant or in some other way).”
....
[55] Finally, as an argument in this appeal, the appellant takes issue with the motion judge’s comments, in passing, that “wilful concealment” and “wilful misleading” as used in s. 15(4)(c) require active conduct by defendants and that passive nondisclosure does not suffice. The appellant relies on case authority to suggest that this is an incorrect statement of the law because concealment “may arise from the manner in which the act which gives rise to the right of action is performed”: M(K) v. M(H), 1992 CanLII 31 (SCC), [1992] 3 SCR 6, at p. 57; King v. Victor Parsons & Co., [1973] 1 All E.R. 206 (C.A.), at p. 209. The respondents disagree, and rely on case law suggesting that there must be some sort of active or deliberate conduct on the part of the defendant to conceal facts from the plaintiff: Johnson v. Studley, 2014 ONSC 1732, at para. 83; Bhoola v. Vaughan (City), 2024 ONSC 103, 41 C.L.R. (5th) 84, at paras. 89-102; Taylor v. David, 2021 ONSC 3264, at para. 46, aff’d 2022 ONCA 200; Johnston v. Griffiths, 2025 ONSC 2048, 176 O.R. (3d) 463, at paras. 63-64. The extent to which active conduct on the part of the defendant is required in order to toll the ultimate limitation period under s. 15(4)(c) is an important issue that has not yet been determined by our court. It is unnecessary to address this question in the present case, and its resolution should await a case where its determination may affect the outcome of the appeal.
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