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Limitations - Nunc Pro TuncThe 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.
. Norman Towing (7344508 Canada Inc.) v. Riordan Leasing Inc.
In Norman Towing (7344508 Canada Inc.) v. Riordan Leasing Inc. (Ont CA, 2024) the Ontario Court of Appeal considered an action where the counterclaim was filed (but not initially issued pursuant to RCP 27.03, where it adds a new party) by the court. When the error was detected the counterclaim was past a limitation period so, finding no prejudice, the motion judge issued a nunc pro tunc order back-dating the issuance to the date of counterclaim filing.
Here the court reviewed law of nunc pro tunc, and the related law of rule non-compliance [R2.01]:[16] The appellant appeals from the nunc pro tunc order. He submits that as the limitation period had expired, it was not open to the motion judge to grant the nunc pro tunc order. He particularly relies on Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801, Thistle v. Schumilas, 2020 ONCA 88, 442 D.L.R. (4th) 339, and Douglas v. Stan Fergusson Fuels Ltd., 2018 ONCA 192, 139 O.R. (3d) 721, in support of his position.
[17] The respondent takes the position that the motion judge made no error in granting the nunc pro tunc order. The respondent argues that the cases relied upon by the appellant are distinguishable as, unlike in this situation, leave of the court was required to commence the proceeding in each case. This case, the respondent argues, simply engaged a procedural irregularity. Among other cases, the respondent particularly relies on Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945, 77 C.P.C. (8th) 421. There, the plaintiffs’ process server attended at court on June 25, 2019, the last day of the limitation period, and asked that a statement of claim be issued. The court clerk declined to do so as it was at the end of the working day. As a result, the claim was issued on June 26, 2019, after the limitation period had expired. The irregularity was not intentional, and the motion judge was critical of the court clerk. He concluded that the plaintiffs did not fail to commence a proceeding within the time limit and noted that the plaintiffs had done all that was necessary to commence a proceeding within the time prescribed by the applicable statute. The legislative purpose underlying the statutory limitation period was not undermined. The motion judge accordingly declared that the claim was issued on June 25, 2019. The motion judge did not view Green as establishing a “red line” that is applicable in all cases and found Thistle was of little aid as it involved a claim brought in the bankrupt’s name that did not belong to him.
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[19] The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”), provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which it was discovered: s. 4. Accordingly, commencement of the proceeding engages the calculation of the applicable time limit. In this case, the proceeding commenced would be the counterclaim adding the appellant as a party.
[20] Under r. 14.01 of the Rules, a proceeding is commenced by the issuing of an originating process. With some exceptions, an originating process is a statement of claim. One such exception is a statement of defence and counterclaim against a person not already a party to the main action.
[21] Specifically, r. 27.03 of the Rules states:Where a person who is not already a party to the main action is made a defendant to the counterclaim, the statement of defence and counterclaim,
(a) shall be issued,
(i) within the time prescribed by rule 18.01 for delivery of the statement of defence in the main action or at any time before the defendant is noted in default, or
(ii) subsequently with leave of the court. [22] Rule 2.01 provides that a failure to comply with the Rules is an irregularity and does not render a proceeding a nullity. Furthermore, it provides that a court may grant relief to secure the just determination of the real matters in dispute.
[23] Nunc pro tunc orders were addressed by the Supreme Court in Green. This was in the context of the leave requirement contained in s. 138.3 of the Securities Act, R.S.O. 1990, c. S.5. Under that section, leave of the court must be obtained to commence a statutory action. In each of the three cases under appeal in Green, leave to commence the statutory claim had not been obtained from the court within the applicable limitation period. The majority held that courts have inherent jurisdiction to issue orders nunc pro tunc for leave to proceed with an action where leave is sought prior to the expiration of the limitation period: at paras. 85, 93. The majority did not require that leave actually be granted prior to the expiry of a limitation period, only that it be sought: at paras. 92-93. However, the majority noted that a court should not exercise its inherent jurisdiction where this “would undermine the purpose of the limitation period or the legislation at issue”: at para. 93.
[24] The majority in Green described the purposes of limitation periods. At para. 57, Côté J. wrote that the Supreme Court has generally recognized these purposes as the certainty, evidentiary, and diligence rationales. She stated: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. [25] The cases relied upon by the appellant, namely Thistle, Douglas, Sax v. Rick Aurora, 2019 ONSC 3573, and Carillion Canada Holdings Inc. et al. (Re), 2022 ONSC 66, 98 C.B.R. (6th) 138, all required leave of the court to proceed with an action. In essence, in each case, leave was required to bring the proposed action. As such, each case fell within the parameters of the dicta expressed in Green. Alternatively, they involved lack of capacity.
[26] In my view, the case under appeal is distinguishable from Green and the other cases raised by the appellant. This is because, unlike this case, in Green the Securities Act required leave to commence an action. The leave requirement served as a screening mechanism. It did not involve, as here, an administrative misstep.[2]
[27] Although a different context, Green does hold that leave need not be granted but just sought prior to the expiry of a limitation period. Even in that context, it follows that a nunc pro tunc order may be granted in the face of the expiry of a limitation period. Rule 2.01 contemplates a failure to comply with the Rules and that this amounts to an irregularity and does not render a proceeding a nullity. This makes sense as the law and justice should run in parallel, not in opposition. Reflective of that reality, r. 2.01 goes on to say that a court may grant relief to secure the just determination of the real matters in dispute.
[28] In the case under appeal, the lack of issuance was an irregularity. On June 18, 2021, when the statement of defence and counterclaim in this case was filed, as mentioned, it was not issued as required by r. 27.03. However, unquestionably, the appellant and his counsel were aware of the counterclaim well before the expiry of the limitation period. In April 2021, counsel for the appellant was advised that there would be a counterclaim and it was sent to him on May 31, 2021. The motion judge acknowledged the affidavit of service on the appellant and that the statement of defence and counterclaim were “left in the right place”. On June 21, 2021, the respondent again wrote asking whether service of the statement of defence and counterclaim would be accepted. A date for hearing of the motion for default judgment was given on October 13, 2021, and default judgment on the counterclaim was granted, all with no reference to its lack of issuance. In May 2022, counsel for the appellant sought dates for the hearing of the set aside motion. Although there is no evidence that the appellant’s counsel raised the fact that the counterclaim had only been filed and not issued, this issue was implicitly engaged at that time and well before the expiry of the limitation period on September 14, 2022.
[29] In these circumstances, it is clear that under r. 2.01, the motion judge could grant relief to secure the just determination of the real matters in dispute. It was therefore open to him to grant an order that treated the date of filing as the date of issuance. Having done so, the limitation period had not expired. Moreover, the certainty, evidentiary, and diligence purposes that animate the limitation period prescribed by the Limitations Act would not be undermined. . 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.
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[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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