Simon's Legal Resources

Limitations - No Limitations (3)

. Never Forgotten National Memorial Foundation v. Canada (Parks)

In Never Forgotten National Memorial Foundation v. Canada (Parks) (Ont CA, 2026) the Ontario Court of Appeal considered the limitations exemption for declarations [LA s.16(1)(a)]:

[3] Discoverability of the appellant’s claim is not in issue. The appellant also concedes that its damages claim is statute-barred. The appellant submits that the declaratory relief sought in its action is exempt under s. 16 (1)(a) from the operation of the applicable two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act”). The appellant repeats the arguments made on the motion that its declaratory relief has practical effect: it will preserve the appellant’s reputation and clarify that its efforts are in the public interest and are of public importance.

[4] Having applied the correct governing principles, the motion judge rejected that the appellant’s action fit within any exemption from the two-year limitation period under s. 4 of the Act, or that the declaratory relief will have any practical effect. He summarized his reasons for dismissing the appellant’s action as follows:

In short, I find that the claim for declaratory relief will serve no practical purpose and is simply sought to circumvent the limitation period in s. 4. I am also satisfied that this is not a proceeding exempted under s. 2 of the Act. The plaintiff is not an “aboriginal person” nor does it act on behalf of “aboriginal peoples.” The action is for breach of contract; it is not “based on existing aboriginal and treaty rights”, nor does it involve “equitable claims by aboriginal peoples against the Crown.”

[5] We see no basis to interfere with the motion judge’s decision, with which we agree for the reasons of the motion judge. As the motion judge succinctly put it: “Granting the declaratory relief will have no practical utility. The dispute between the parties is over”.

.X.H. v. Cota

In X.H. v. Cota (Ont CA, 2022) the Court of Appeal held that the abolition of limitations for sexual misconduct claims [Limitations Act s.16(1)(h-h.1)] did not only apply to third parties:

[5] .... First, he argues that s. 16(1.3) applies only to claims against third parties. We disagree.

[6] This argument proceeds from a misreading of the decision in Jane Doe v. Weinstein, 2018 ONSC 1126 and of s. 16(1.3), which provides:

(1.3) For greater certainty, clauses (1)(h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability.

[7] This section makes plain that no limitation period applies to any claim in relation to the sexual misconduct. Jane Doe applied but did not limit the application of the s. 16(1.3) to third parties. It applies to claims against the perpetrator of the sexual misconduct as well as third parties.