December 7, 2023
It has become popular for defendants in civil litigation to bring a summary judgment motion to seek to have an action dismissed where there is an allegation that the action was commenced after the time limit (limitation period) had expired.
The Ontario Court of Appeal has reminded us that where facts are in dispute, a trial may be required. They also give the important reminders that:
- A limitation defence is an affirmative defence.
- That means that the defendant must raise the issue.
- And also, that the onus is on the defendant to prove that the action was commenced out of time.
- So, if a summary motion judge requires the Plaintiff to show the action was commenced within time, that itself is a second appealable error.
In AssessNet Inc. v. Ferro Estate the court says:
The onus was on the respondents as defendants to establish the affirmative defence that the limitation period had expired. They also had the onus, as the moving parties on a summary judgment motion seeking to dismiss the claim, to show that there was no issue requiring a trial with respect to the expiry of the applicable limitation period. The obligation of the motion judge was then to make the necessary findings of fact with respect to the limitation period defence, and to the extent that she could not do so, she ought to have concluded that discoverability was a genuine issue requiring a trial and dismissed the summary judgment motion…
The case involved an effort by one creditor of a bankrupt to recover funds. The limitations issue depended on the knowledge of up to three parties- the bankrupt; the trustee in bankruptcy and the creditor. This leads to a second general observation by the court:
Encouraging creditors to commence lawsuits and then seek nunc pro tunc orders to cure procedural irregularities is inconsistent with the BIA’s purpose of providing for the orderly administration of the bankrupt’s affairs. There is good reason for not wanting to encourage creditors, acting as inspectors, to be required to prematurely institute a proceeding because of knowledge gained in their roles as inspectors.
Is this a signal that judges ought to be more pro-Plaintiff on limitations issues? Perhaps. At the least, it complicates issues and increases the settlement value of the Plaintiff’s case.
- Limitations are not simple.
- Summary Judgment motions are still encouraged, but not in cases with complex factual disputes.
- Judges may come to be more pro-Plaintiff in their decisions on limitations.
- This will lead to higher settlements.
- This will also lead to more dubious cases being brought.
- Future Court of Appeal decisions will be needed to establish an appropriate balance.
WHAT CAN WEILERS LLP DO TO HELP YOU?
At Weilers LLP, we understand the law and, more importantly, understand the art of advocacy necessary to present your case to the court in the best possible manner.
We are not afraid of hard cases. We like a challenge. If you value efficiency and effectiveness, Weilers LLP may be the right lawyers for you.