Even for a lay-person, the limitation period seems easy to understand on the surface. Section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B states in plain language that: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Much litigation occurs over the opening 5 words of that section as well as when a claim was “discovered.”
In Toussaint v Canada (Attorney General), 2023 ONCA 117, the Court of Appeal for Ontario reminded parties of an additional procedural consideration when bringing limitation period motions: Whether to bring the motion under Rule 20 or 21 of the Rules of Civil Procedure, RRO 1990, Reg 194.
Background
The plaintiff, Ms. Toussaint, pursued an unsuccessful judicial review and subsequent appeals of the federal government’s denial of healthcare coverage between 2009 and 2013 when she was not a Canadian resident. During this time, Ms. Toussaint suffered serious health consequences.
In 2013, Ms. Toussaint made a submission to the United Nations Human Rights Committee (“UNHRC”). In 2018, the UNHRC found that Canada had violated Ms. Toussaint’s rights under the International Covenant on Civil and Political Rights and that Canada was required to provide an effective remedy including compensation. After Canada stated that it would not be following the UNHRC’s recommendations, Ms. Toussaint commenced an action against Canada on October 14, 2020. Canada brought a motion under Rule 21.01(1)(b) to dismiss the action on the basis that it was plain and obvious that the limitation period had expired.
The motion judge dismissed Canada’s motion because, in his view, it was not plain and obvious that the claim was statute-barred. However, he went further and specifically held that the claim was not statute barred and ordered that Canada could not raise a limitations defence at trial.
The Appeal Decision
The Court of Appeal allowed Canada’s appeal on this serious issue. The court began by explaining that no evidence is admissible on motions brought under Rules 21.01(1)(a) or (b) and that limitations issues should rarely be decided under either subrule. Dealing with limitations issues on pleadings motions is only appropriate “where pleadings are closed and the facts relevant to the limitation period are undisputed.”[1] Due to the doctrine of discoverability under section 5 of the Limitations Act, this will seldom be the case.
In this case, Canada had not filed a statement of defence and there was no evidence before the court. The nature of Ms. Toussaint’s claims and her legal theory were complex and there were factual issues disputed between the parties with respect to the claims’ discoverability. In these circumstances, while it was open to the motion judge to dismiss Canada’s motion seeking a finding that Ms. Toussaint’s claim was statute barred, it was improper to go further and order that the claim was not statute barred and prevent that defence from being raised at trial. By making this finding, the motion judge went beyond the relief sought on the motion and the Court of Appeal noted that it would be “difficult to conceive of a case where it would ever be appropriate to make such a finding against a moving party on a r. 21 motion.”[2]
Conclusion
The Court of Appeal’s decision in Toussaint is a clear warning to parties and counsel to carefully consider whether to bring motions to determine limitations issues under Rule 21. This should only be done when pleadings are closed and the facts related to discoverability of the claim are undisputed, which will rarely occur. Otherwise, parties are better off playing it safe and bringing such motions under the summary judgment procedure under Rule 20.
The decision is also a direction to judges to generally avoid making a “boomerang” order (an order against a moving party that was not sought by the responding party by cross-motion) that an action is not barred by the limitation period, particularly when there are disputed facts as “factfinding is required to assess whether a claim is discovered… but factfinding is not contemplated on a pleadings motion.”[3]
[1] Toussaint v Canada (Attorney General), 2023 ONCA 117 at para 11.
[2] Ibid at para 12.
[3] Ibid at para 11.
