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Civil and Administrative
Litigation Opinions
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Limitations - Charter Remedies

. Prete v. The Queen in right of Ontario et al.

In Prete v. The Queen in right of Ontario et al. (Ont CA, 1993) the Court of Appeal the issue was the dismissal of a Charter action as it exceeded the six-month limitation under the (then) Public Authorities Protection Act s.11(1):
11(1) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.
The majority of the court held that this statutory limitation period could not operate against granting a s.24(1) Charter remedy, as it amounted to the legislature selectively exempting itself from Charter protections:
In M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 at pp. 29-30, 96 D.L.R. (4th) 289, La Forest J. describes the historic purposes of limitation periods as providing a time when prospective defendants can be secure that they will not be held to account for ancient obligations, foreclosing claims based on stale evidence, permitting destruction of documents, and assuring that plaintiffs do not sleep on their rights. Those purposes are best served, when Charter remedies are sought, by the court refusing relief on the basis of laches, in appropriate cases. The purpose of the Charter, in so far as it controls excesses by governments, is not at all served by permitting those same governments to decide when they would like to be free of those controls and put their houses in order without further threat of complaint.

Put in this Charter context, I see no valid comparison between procedural rules of court and statutory limitation periods. I do see identity between statutes granting immunity and those imposing limitation periods after the time when the limitation arises. Having found that immunity is not available under the Proceedings Against the Crown Act from a claim for Charter remedy, it therefore follows that in my opinion s. 11 of the Public Authorities Protection Act should be read as not applying to relief claimed under s. 24(1) of the Charter.


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Last modified: 20-01-21
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