
Legal Blog
2nd Chance Revisited
On occasion, we correctly analyse a case and, after an appeal, announce our correct analysis with great fanfare. On other occasions, our analysis may be a touch deficient and, after an appeal, we slink off in silence. In the case of Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 401 (C.A.), the trumpets are sounding.
On Motion
The plaintiff was suing for damages for personal injury. The limitation expiry date was September 5, 2006. The plaintiff’s solicitor did not issue the claim until October 31, 2006. Why? He had instructed his assistant to issue the claim before September 5, 2006 and thought that she had complied. However, she thought that the limitation period was 6 and not 2 years. Accordingly, she went on vacation during the week of September 4, 2006 without issuing the claim. The solicitor later reviewed the file and found that she had not followed his instructions. After the solicitor commenced the action, the defendant moved for summary judgment to dismiss the action as statute barred.
The motions judge decided that the limitation period could be extended as the result of special circumstances and applied cases that were decided before the new Limitations Act. He ignored section 21 of the Act, a section that precluded the addition of parties to an existing action at the expiry of the limitation period.
We said in our June 2008 newsletter, “If a person cannot be joined to an existing action after the limitation period has expired, it is nonsensical to allow the same plaintiff to commence a new action against the same person that the plaintiff was not allowed to join in the old action. For section 21(1) of the new Act to make any sense, then there cannot be room for the court’s discretion to permit the commencement of a new action.”
On Appeal
Section 20 of the Limitations Act provides that nothing in it prevents the extension of a limitation period “by or under another Act“.
The Court of Appeal acknowledged that there was a line of cases, commencing with a Supreme Court of Canada decision in 1972, that allowed limitation periods to be extended because of special circumstances. However, these were common law decisions and, therefore, did not fall within the exception set out in section 20.
The Court also noted that other judges had taken jurisdiction to amend pleadings and add parties, pursuant to Rules 5.04 and 26.01. These judges reasoned that the Rules were akin to Regulations and, therefore, extensions were being allowed “under another Act“. This, the Court stated, was incorrect. The Rules only allowed parties to amend their pleadings; it was the common law that allowed a limitation period to be extended.
The Court stated also, “I am reinforced in my view by s. 21 of the new Act, which specifically prohibits the addition of parties to an existing action after the expiry of the limitation period. Section 20 would conflict with s. 21 if it were interpreted to extend it to the incorporation of the common law special circumstances doctrine, thereby allowing the possible addition of parties after the expiry of the limitation period where special circumstances exist, in conflict with s. 21.” Does this reasoning sound familiar?
Finally, the Court noted that the special circumstances rule applied only to amend or add a claim to an existing action. It did not give a court authority to allow an action to be commenced after the expiry of the limitation period.
For both reasons, the Court allowed the appeal and dismissed the action.
Moral
We lawyers no longer have a second chance to make a first impression. In essence, either we commence our action and get our parties right within the two-year limitation period or we memorise the telephone number of LawPro.