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Limitations - Civil Procedure. Toussaint v. Canada (Attorney General)
In Toussaint v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal held that deciding limitation issues on preliminary R21 motion was generally unwise:[11] We begin by reiterating that limitations issues can rarely be decided on pre-trial motions to strike under r. 21.01 of the Rules of Civil Procedure. Factfinding is required to assess whether a claim is discovered under s. 5 of the Limitations Act, but factfinding is not contemplated on a pleadings motion. Thus, this court has in several cases discouraged the use of r. 21.01(1)(a) to determine limitation issues: see e.g., Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at para. 31; Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 81; Clark v. Ontario (Attorney General), 2019 ONCA 311, at paras. 42-48, rev’d on other grounds 2021 SCC 18, 456 D.L.R. (4th) 361; Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at paras. 19-21; Salewski v. Lalonde, 2017 ONCA 515, 137 O.R. (3d) 750, at paras. 45-46, 50; and Ridel v. Goldberg, 2017 ONCA 739, at paras. 11-12. In general, it is appropriate to address limitations issues on a pleadings motion only “where pleadings are closed and the facts relevant to the limitation period are undisputed”: Beaudoin Estate, at para. 31; see also Clark, at para. 44, Salewski, at para. 45. This is true whether the motion is brought under r. 21.01(1)(a) or (b).
[12] In this case, the motion judge’s determination that the action is not statute barred is even more problematic than in the cases referred to above because the determination was made in the context of a r. 21 motion brought by Canada. The motion raised the issue of whether it was plain and obvious based on the statement of claim that the action was statute barred. Instead of confining himself to this issue, the motion judge went beyond the confines of the relief sought on the motion and made a finding against Canada that the action was not statute barred. It is difficult to conceive of a case where it would ever be appropriate to make such a finding against a moving party on a r. 21 motion.
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[15] In summary, although it was open to the motion judge to dismiss the r. 21.01(1)(b) motion, he erred in going further by ordering that the claim was not statute barred pursuant to the Limitations Act and precluding the appellant from raising a limitations defence at the trial. The motion judge’s conclusion that it was not plain and obvious that Ms. Toussaint’s action was statute barred pursuant to the Limitations Act does not entail the further conclusion that the action is timely. . Winmill v. Woodstock (Police Services Board)
In Winmill v. Woodstock (Police Services Board) (Ont CA, 2017) the Court of Appeal makes this useful tactical point:[17] I begin with a structural point. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts: see West v. Ontario, 2015 ONCA 147 (CanLII), at paras. 2-3.
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