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Limitations - Generally. Wong v. Lui
In Wong v. Lui (Ont CA, 2023) the Court of Appeal usefully reviews some history of limitation periods:(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). . Carmichael v. GlaxoSmithKline Inc.
In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal considered the general purposes of limitation periods:[80] Traditionally, limitation periods were seen as having three purposes, known as the certainty, evidentiary, and diligence rationales: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at paras. 64-67; Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801, at para. 57; and Frohlick v. Pinkerton Canada Limited, 2008 ONCA 3, 88 O.R. (3d) 401, at para. 18. The certainty rationale seeks “to promote accuracy and certainty in the adjudication of claims”; the evidentiary rationale seeks “to provide fairness to persons who might be required to defend against claims based on stale evidence”; and the diligence rationale seeks “to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”: Green, at para. 57, citing Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis, 2014), at p. 123.[81] In Novak, McLachlin J. (as she then was) observed that the three traditional rationales for limitation periods generally reflect the interests of potential defendants, based on the idea that they should not have to respond to stale claims brought by persons who have not asserted their rights diligently: at para. 64. But as legislatures have modernized their limitations statutes, they have increasingly focussed on the need to treat plaintiffs fairly and to account for their interests as well: at paras. 65-66. Today, therefore, a limitations statute “must attempt to balance the interests of both sides”: Murphy v. Welsh, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1080; see also Frohlick, at para. 19; Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401, at para. 8. . Canadian Imperial Bank of Commerce v. Green
In Canadian Imperial Bank of Commerce v. Green (SCC, 2015) the Supreme Court of Canada considered basic principles underpinning the existence of limitation periods:[57] This Court has generally recognized that limitation periods have three purposes known as the certainty, evidentiary and diligence rationales: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at paras. 64-67, per McLachlin J.; M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at pp. 29-31, per La Forest J. Limitation periods serve “(1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion”: P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at p. 123.
[58] Clearly, it is desirable that litigation be accurate and certain, given that the passage of time dims memories and erodes evidence, and also that the risk of error grows as an adjudicator is further removed from the cause of action. Furthermore, after a certain time, possible defendants may be unaware of the need to preserve potentially enlightening or even exonerating pieces of evidence. Finally, it is appropriate to expect plaintiffs to assert their claims diligently and to be cognizant of their circumstances and of the extent of their control over them. Modern limitations legislation is therefore based on a recognition that limitation periods, in order to be effective, need to be final. This is the other side of the coin, the practical consequence of limitation periods that can make the application of a limitations statute seem harsh: Novak, at para. 8, per Iacobucci and Major JJ, dissenting.
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