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Limitations - Practice. Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp. [limitation defence must be pled]
In Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp. (Ont CA, 2025) the Ontario Court of Appeal partially allowed a defendant's appeal, here brought against "an order granting summary judgment in MTCC 1067’s favour in an action over alleged condominium common expense arrears".
Here the court considers how a limitation 'defence' must be plead and argued:[16] It is well-settled that “[t]he expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21. As Laskin J.A. noted in Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, at para. 116:The rules call for a limitation defence to be pleaded in the statement of defence. A plaintiff is entitled to reply to a statement of defence and put before the court further facts, for example, on the question of the discoverability of the claim. ....
[20] We are not satisfied that this is an appropriate case to depart from the “general rule … that appellate courts will not entertain entirely new issues on appeal”: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Among other things, if BSA had pleaded a limitations defence and had squarely raised the limitations issue before the motion judge, MTCC 1067 might have responded by presenting additional evidence on the issue of discoverability, including on the question of when a reasonable person in its position would have concluded that it was appropriate to commence an action: Limitations Act, 2002, s. 5. In these circumstances it would be contrary to the interests of justice and unfair to MTCC 1067 to permit BSA to raise the limitations issue for the first time on appeal.
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