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Limitations - Nunc Pro Tunc

The law of nunc pro tunc means just what the english translation from the latin means: 'then as now'. It is a way to re-commence the tolling of the limitation period outside of the law of discoverability, normally where a technical barrier exists to it otherwise running.

. Canadian Imperial Bank of Commerce v. Green

In Canadian Imperial Bank of Commerce v. Green (SCC, 2015) the Supreme Court of Canada considered the doctrine of nunc pro tunc:
(1) Doctrine of Nunc Pro Tunc

[85] The courts have inherent jurisdiction to issue orders nunc pro tunc. In common parlance, it would simply be said that a court has the power to backdate its orders. This power is implied by rule 59.01 of the Rules of Civil Procedure: “An order is effective from the date on which it is made, unless it provides otherwise”.

[86] The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.

[87] One of the oldest and most often cited cases, Turner v. London and South-Western Railway Co. (1874), L.R. 17 Eq. 561, dealt with this very circumstance: the plaintiff had died after the hearing but before the court rendered its judgment. The court ordered that its judgment be entered nunc pro tunc, as of the day when the argument terminated, noting that this would not cause an injustice to the other party and that such a result was appropriate in a case in which the delay had resulted from an act of the court. A long line of Canadian cases has followed Turner, as courts have granted nunc pro tunc orders where parties have died after hearings: Gunn v. Harper (1902), 3 O.L.R. 693 (C.A.); Young v. Town of Gravenhurst (1911), 24 O.L.R. 467 (C.A); Hubert v. DeCamillis (1963), 41 D.L.R. (2d) 495 (B.C.S.C.); Monahan v. Nelson, 2000 BCCA 297 (CanLII), 76 B.C.L.R. (3d) 109; Medina v. Bravo, 2008 BCSC 1307 (CanLII), 87 B.C.L.R. (4th) 369.

[88] LeBel and Rothstein JJ. drew upon this line of cases in Canada (Attorney General) v. Hislop, 2007 SCC 10 (CanLII), [2007] 1 S.C.R. 429, affirming “the correctness of this approach” and concluding that the estate of any class member in a class proceeding who was alive on the date that argument concluded was entitled to the benefit of the judgment: para. 77.

[89] In CIBC, Strathy J. suggested that a court has inherent jurisdiction to issue an order nunc pro tunc, but only in the case of a slip or oversight. In my opinion, the occurrence of a slip or oversight is not the only circumstance in which a court may exercise its inherent jurisdiction, but is instead one example of a situation in which it may do so. To hold otherwise would run counter to the historical basis for the development of the doctrine.

[90] In fact, beyond cases involving the death of a party or a slip, the courts have identified the following non-exhaustive factors in determining whether to exercise their inherent jurisdiction to grant such an order: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice (Re New Alger Mines Ltd. (1986), 1986 CanLII 2530 (ON CA), 54 O.R. (2d) 562 (C.A.), at pp. 570-71; Gallo v. Beber (1998), 1998 CanLII 907 (ON CA), 116 O.A.C. 340, at paras. 7 and 10; Krueger v. Raccah (1981), 1981 CanLII 2106 (SK QB), 12 Sask. R. 130 (Q.B.), at paras. 11-15; Parker v. Atkinson (1993), 104 D.L.R. (4th) 279 (Ont. Unif. Fam. Ct.), at p. 286; Hogarth v. Hogarth, [1945] 3 D.L.R. 78 (Ont. H.C.), at pp. 78-79; Montego Forest Products Ltd. (Re) (1998), 1998 CanLII 2640 (ON CA), 37 O.R. (3d) 651 (C.A.), at p. 654; Couture v. Bouchard (1892), 1892 CanLII 73 (SCC), 21 S.C.R. 281, at p. 285; Westman v. Gyselinck, 2014 MBQB 174 (CanLII), 308 Man. R. (2d) 306, at para. 40, citing Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, at para. 28; McKenna Estate v. Marshall (2005), 37 R.P.R. (4th) 222 (Ont. S.C.J.), at paras. 23-24). None of these factors is determinative.

[91] Returning to the issue in the cases at bar, there are two schools of thought in the jurisprudence on whether a failure to obtain leave within a specified limitation period results in the nullity of the action or is merely a procedural irregularity. According to one view, a failure to do so results in the nullity of the action, which cannot be remedied by a nunc pro tunc order, and is therefore an “insurmountable obstacle”: Holst v. Grenier (1987), 1987 CanLII 4512 (SK QB), 65 Sask. R. 257 (Q.B.), at para. 10. According to the second view, such a failure is merely a procedural irregularity that can be corrected by a nunc pro tunc order: see e.g., CIBC Mortgage Corp. v. Manson (1984), 1984 CanLII 2587 (SK CA), 32 Sask. R. 303 (C.A.), at paras. 8-11 and 33; McKenna, at para. 22.

[92] In my opinion, van Rensburg J. correctly stated the law on this point in IMAX. She noted that the courts have been willing to grant nunc pro tunc orders where leave is sought within the limitation period but not obtained until after the period expires (as in Montego Forest Products Ltd.). She also noted that, in the cases suggesting that an action commenced without leave was a nullity, the applicable limitation periods had expired before the application for leave was brought. A nunc pro tunc order in such cases would be of no use to the plaintiff, as it would be retroactive to a date after the expiry of the limitation period.

[93] Thus, subject to the equitable factors mentioned above, an order granting leave to proceed with an action can theoretically be made nunc pro tunc where leave is sought prior to the expiry of the limitation period. One very important caveat, identified by Strathy J., is that a court should not exercise its inherent jurisdiction where this would undermine the purpose of the limitation period or the legislation at issue.

[94] This is because, as with all common law doctrines and rules, the inherent jurisdiction to grant nunc pro tunc orders is circumscribed by legislative intent. Given the long pedigree of the doctrine and of rule 59.01, to which I have referred, it has been held that the legislature is presumed to have contemplated the possibility of a nunc pro tunc order: McKenna, at para. 27; Parker, at pp. 286-87; New Alger Mines, at pp. 570‑71. However, nunc pro tunc orders will not be available if they are precluded by either the language or the purpose of a statute. None of the other equitable factors listed above, including the delay being caused by an act of the court, can be relied on to effectively circumvent or defeat the express will of the legislature.
. Thistle v. Schumilas

In Thistle v. Schumilas (Ont CA, 2020) the Court of Appeal comments on the nature and availability of nunc pro tunc:
(b) Availability of the Nunc Pro Tunc Order

[22] To answer this question, regard must be had to the Supreme Court’s decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801 (“Green”). That case considered three appeals (CIBC, IMAX and Celestica) where the respondent plaintiffs claimed damages under the common law tort of negligent misrepresentation and pleaded an intention to claim damages under the statutory cause of action in s. 138.3 of the Securities Act, R.S.O. 1990, c. S.5.

[23] None of the plaintiffs obtained leave to commence the statutory action, required under the Securities Act, before commencing the class proceeding based on the common law cause of action. In all the cases, the limitation period for the statutory action, if not suspended, would have run out prior to leave being obtained. In IMAX, the motion for leave was filed and argued before the expiry of the limitation period; in CIBC, the motion for leave was filed before the expiry of the limitation period; and in Celestica, the motion for leave was filed after the expiry of the limitation period.

[24] An issue arose in Green regarding whether the court had authority to make a leave order on a nunc pro tunc basis. Côté J., at para. 85, recognized that courts have a power to make nunc pro tunc orders, which she described as essentially backdated orders, noting that rule 59.01 of the Rules of Civil Procedure states: “An order is effective from the date on which it is made, unless it provides otherwise.” She reviewed a non-exhaustive list of factors courts have considered in determining whether to exercise their inherent jurisdiction to grant such an order. Côté J. then turned, at paras. 91 to 93, to the question of whether nunc pro tunc orders should be permitted where a plaintiff required leave to bring an action but failed to seek leave within the applicable limitation period:
Returning to the issue in the cases at bar, there are two schools of thought in the jurisprudence on whether a failure to obtain leave within a specified limitation period results in the nullity of the action or is merely a procedural irregularity. According to one view, a failure to do so results in the nullity of the action, which cannot be remedied by a nunc pro tunc order, and is therefore an “insurmountable obstacle”. According to the second view, such a failure is merely a procedural irregularity that can be corrected by a nunc pro tunc order.

In my opinion, van Rensburg J. correctly stated the law on this point in IMAX. She noted that the courts have been willing to grant nunc pro tunc orders where leave is sought within the limitation period but not obtained until after the period expires (as in Montego Forest Products). She also noted that, in the cases suggesting that an action commenced without leave was a nullity, the applicable limitation periods had expired before the application for leave was brought. A nunc pro tunc order in such cases would be of no use to the plaintiff, as it would be retroactive to a date after the expiry of the limitation period.

Thus, subject to the equitable factors mentioned above, an order granting leave to proceed with an action can theoretically be made nunc pro tunc where leave is sought prior to the expiry of the limitation period. [Citations omitted.]
[25] In circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date of the motion, which was already beyond the expiry of the limitation period. In Celestica, the plaintiffs did not file their motion for leave prior to the limitation period expiring. Accordingly, on that basis, the Supreme Court denied the granting of a nunc pro tunc order: Green, at para. 111.

[26] This court followed Green in Douglas. Like this case, Douglas concerned a cause of action that arose when a party was an undischarged bankrupt and that was asserted at a time when the cause of action remained vested in the trustee. The party’s insurer attempted to bring the action in the party’s name, based on alleged subrogation rights. This court held that the party had no capacity to bring the action because an undischarged bankrupt lacks capacity to commence an action in his name, if his cause of action vested in the trustee on his assignment or at any time before his discharge: Douglas, at paras. 92-93.

[27] This court refused to make a nunc pro tunc order pursuant to ss. 38 or 40 of the BIA because, among other things, the insurer sought a nunc pro tunc order almost seven years after the limitation period had passed. Citing Green, this court ruled that “a court has no authority to make a nunc pro tunc order if the party did not seek an order before the relevant limitation period expired”: Douglas, at para. 104.

[28] This case is analogous to Douglas, the only difference being that at the time the action was commenced in this case, the respondent was a discharged bankrupt. The respondent sought a nunc pro tunc order in 2018, which was well after the expiry of the two-year limitation period pursuant to the Limitations Act 2002, S.O. 2002, c. 24, Sch. B. The limitation period for the respondent’s claim expired, at the latest, in 2015, which was two years after the respondent brought his action against the appellant. The motion judge thus had no authority to grant the nunc pro tunc order.

[29] The motion judge attempted to distinguish Douglas by noting that, in this case: (1) the respondent was discharged from bankruptcy when the cause of action was discovered, and the action commenced; and (2) the trustee consented to an order regularizing proceeding. Given that the nunc pro tunc order was only sought after the expiry of the limitation period, these factual differences are of no consequence in this particular case.

[30] The motion judge also cited Montego Forest Products Ltd. (Re) (1998), 1998 CanLII 2640 (ON CA), 37 O.R. (3d) 651 (C.A.), to demonstrate that “the expiry of the limitation period is not an absolute barrier to granting an order nunc pro tunc”. However, this court has noted that the nunc pro tunc order was properly granted in Montego Forest Products because the order was sought within the limitation period: Douglas, at para. 104; see also Green, at para. 92.

[31] Given the decisions in Green and Douglas, the motion judge erred in granting a nunc pro tunc order regularizing the proceeding for the respondent. She had no authority to make that order and, accordingly, it cannot stand.
. Nadeau v. Caparelli

In Nadeau v. Caparelli (Ont CA, 2016) the Court of Appeal allowed the addition of a party after the limitation had expired since the added party was not a necessary party to the action, and so no limitation issue arose with respect to them:
[24] Second, the appellants argue the addition of 111 caused them prejudice. In their submission, Nadeau could not bring suit on the Note without joining the assignor, 111, as a necessary party. Since he did not do so before the expiry of the July 21, 2015 limitation date, the subsequent joinder of 111 as a plaintiff nunc pro tunc deprived the appellants of their limitation defence, with the result the motion judge erred in granting summary judgment against them.

[25] I would not accept this submission. In my view, 111 was not a necessary party to the action, so no limitation period issue arose.

....

[33] Nor would the joinder of the assignor nunc pro tunc deprive the appellants of the substantive right of a limitation defence, as contended by them. This court rejected a similar argument in Canning v. Avigdor, [1961] O.W.N. 59, at p. 65:
[I]t was argued that it was too late at the date of the trial to have [the assignors] added, because by that time the Statute of Limitations had run against them. For this reason, it was urged they should not be added, and consequently, in the absence of the assignors as parties, there was no cause of action in the plaintiff.

In my view, however, the assignor, having no interest, the Statute of Limitations has no application and cannot, in such case, be used for the purpose of preventing the addition of an assignor as a party.



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