As Ontario’s Limitations Act, 2002 approaches adolescence, the flow of jurisprudence interpreting its provisions has slowed from a torrent to a manageable stream.
Areas of controversy remain. In 2015, two Superior Court decisions reached conflicting conclusions about the meaning of section 18(1), which determines when the limitation period runs for contribution and indemnity claims.
This section deems the date of service of a statement of claim to be the date the act or omission giving rise to the contribution and indemnity claim took place. The conflict is whether time always runs from this date, or whether the section 5 discovery provisions can postpone it. It is an issue relevant only when a defendant discovers a contribution and indemnity claim sometime after service of the statement of claim. You would think this happens rarely, but it was at issue in at least three decisions this year.
Delivered first was Miaskowski v. Persaud, 2015 ONSC 1654, in which Justice Paul Perell held that discoverability does not apply to section 18(1) because of the provision's language. It uses the word “deemed”, a declarative legal concept, and a “firmer or more certain assertion of discovery” than the presumption in section 5(2) of the Act (that is, a claimant is presumed to have discovered her claim on the day the act or omission giving rise to it took place, unless she proves otherwise).
A few months later, Justice I. F. Leach reached the opposite conclusion in Demide v. Attorney General of Canada et al., 2015 ONSC 3000, In his view, approaching section 18(1) as a self-contained deeming provision ignores its opening words ("For the purposes of subsection 5(2) and section 15..."). Section 5 and 15 determine the commencement of the basic two-year and ultimate 15-year limitation periods respectively. Section 18(1) merely dictates that the date of service of the statement of claim is the presumptive commencement of the basic two-year limitation period and the commencement of the ultimate limitation period.
It would seem that the analysis in Demide should prevail. If section 18(1) is an absolute two-year limitation period beginning on a fixed date, the ultimate limitation period could never apply, and there would be no reason for section 18(1) to reference it. The issue is ripe for the Court of Appeal.
The year's other noteworthy limitations jurisprudence considered the importance and timeliness of motions for summary judgment on limitations defences.
Those concerned that a timorous court is declining to determine limitations defences should find Justice Sean F. Dunphy's decision in Sutton v. Balinsky, 2015 ONSC 3081, encouraging. Justice Dunphy emphasised that summary judgment on limitations defences advances the policy goals underlying the Limitations Act, 2002: statute-barred claims should not receive unnecessary enquiry. Reserving judgment on limitations defences until after a full trial defeats this policy, and the court may consider this when deciding whether the interests of justice require a full trial.
Justice Graeme Mew warned against unreasonable delay in moving for summary judgment on limitations defences. In Farmers Oil v. Her Majesty the Queen et al., 2015 ONSC 223, Justice Mew found the defendant's 12-year delay dubious, and nearly dismissed its motion on that basis. If the defendant genuinely believed that determining the limitations defence required no findings of fact, it ought to have brought the motion sooner, and before incurring significant costs and use of court resources.
Justice Mew acknowledged the conventional wisdom post-Hryniak that the court must grant summary judgment whenever there is no genuine issue requiring trial, but noted that there may be cases where it is appropriate to dismiss a summary judgment motion on the basis of timing. The court can decline to hear a motion brought when trial readiness is imminent, and there are no or weak excuses for not bringing it earlier.
However appropriate and timely a summary judgment motion may be, a limitations argument is doomed if raised for the first time in the Court of Appeal. In Whiteman v. Iamkhong, 2015 ONCA 564, (one of the few notable Court of Appeal limitations decisions this year), the plaintiff appealed from the summary dismissal of his action as statute-barred. He argued that certain sections of the Limitations Act, 2002 nullified the limitations defence, but he did not plead this law or raise it in response to the motion. The Court held that it would be contrary to the interests of justice to permit him to make the argument for the first time on appeal.
Finally, perhaps the most significant development in limitations law last year was the introduction of Bill 132 to amend the Limitations Act, 2002 to remove the limitation periods for claims based on sexual assault. The proposed amendments would also remove the limitation period for claims based on non-sexual assault if, at the time of the assault, the claimant was in an intimate relationship with the person who committed, contributed to, consented to, or acquiesced in it, and the claimant was financially, emotionally, physically, or otherwise dependent on this person.
Unless “dependent” has a narrow meaning, it could allow a person to claim against a romantic partner (former or otherwise) based on assault without limitation. The Bill has cleared first reading, and it will be interesting to follow its progress.