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Limitations Act - Burden of Proof. Maxwell v. Altberg
In Maxwell v. Altberg (Ont CA, 2023) the Court of Appeal considered the onus in a limitations matter, here in the context of an appeal from a dismissed summary judgment:[15] Second, she argues that the motion judge made a legal error that resulted in a reversal of the onus of proof. She submits that the motion judge erroneously relied on Findlay v. Holmes, (1998), 1998 CanLII 5488 (ON CA), 111 O.A.C. 319 (C.A.), at para. 25, for the proposition that where a limitation defence is pleaded the person seeking to enforce a right has the onus of showing that the action was brought within the limitation period. According to Ms. Altberg, that proposition applies at trial. She argues that on a motion for summary judgment, the moving party (here Mr. Maxwell) bore the onus of showing there is no genuine issue for trial regarding a limitation period defence: Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, at para. 58.
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[17] As this court stated in Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.), at p. 742, if the person relying on the limitation period moves for summary judgment and satisfies the court that there is no issue of fact requiring a trial for its resolution, the limitation defence will have been made out, and summary judgment will be appropriate. . Nguyen v Economical Mutual Insurance Company
In Nguyen v Economical Mutual Insurance Company (Div Court, 2023) the Divisional Court held that the burden (onus) of proving the expiration of a limitation period lay on the party advancing it as a defence:[16] Whose onus was it provide when Ms. Nguyen received the denial letter? In its original decision the LAT recognized that the onus was on Economical to prove on a balance of probabilities that the limitation period had expired pursuant to s. 56 of the SABS. An essential fact that must be proved to satisfy this onus is when Ms. Nguyen actually received the March 13 denial letter as the two-year limitation period only begins to run on the date Ms. Nguyen was aware of the denial. Economical provided no evidence that Ms. Nguyen actually received the March 13 denial letter prior to the deemed date of receipt if it was mailed (March 20, 2018).
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[18] Secondly, the LAT faulted Ms. Nguyen for providing no evidence to support her assertion that the March 13 denial letter was mailed to her. In doing so it committed a second error of law by reversing the onus of proof for establishing that the limitation period had expired. The onus was not on Ms. Nguyen to prove when she received the denial letter and the limitation period started to run. It was on Economical. . Visic v. Elia Associates Professional Corporation
In Visic v. Elia Associates Professional Corporation (Ont CA, 2022) the Court of Appeal held that the burden (on a summary judgment motion) of showing an extension (well-)past the two-year limitation period lay on the plaintiff:[6] Given the appellant did not commence the action until 2018 – well outside the 2-year limitation period – the onus was on the appellant to adduce sufficient evidence to demonstrate that there was a genuine issue requiring a trial with respect to whether any of the factors listed in s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, postponed the commencement of the limitation period. ....
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