Legal Blog

2nd Chance

Every one deserves a second chance. Or do they? Should a person who misses a limitation period be forgiven, so that an action is not struck? In the pre-2004 era, a plaintiff could claim special circumstances and be given dispensation for the time lapse. Will a plaintiff still be given dispensation under the Limitations Act, 2002? Maybe. In this regard, we discuss two cases: Joseph v. Paramount Canada’s Wonderland (2007), 87 O.R. (3d) 473 (SCJ) and St. Jean v. Cheung [2007] O.J. No. 3562 (SCJ).

Yes

In Joseph, 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 judge first reviewed three cases that dealt with the extension of limitation periods. These cases stated that if the plaintiff could demonstrate special circumstances, then the limitation period would be extended. In effect, they indicated that if the limitation date was missed because of solicitor’s inadvertence and there was no prejudice to the defendant, particularly if the plaintiff had put the defendant (through the insurer) on notice of the claim and the accident, then this would comprise special circumstances.

The defendant had urged the judge not to follow these cases because “they are intrinsically fallacious in their premise, that they make a mockery of the intentions of the new Limitations Act and generally parties will not be able to rely on the statute to which they are entitled if the ratio of these three cases are (sic) followed.”

The judge held that he was bound to follow the cases because of the principle that decisions of the same court, though not binding, should be followed unless there are strong reasons to the contrary. The judge then dismissed the defendant’s motion.

Problems

Aside from giving the positions of the parties and discussing the facts and the three cases, the judge gave no reasons for his decision. He did not discuss the new Act compared to the old Act. He implicitly held that there were special circumstances, but did not state what they were. He did not discuss whether there was prejudice. He just made his decision.

No

In St. Jean, the plaintiff was suing a group of doctors and a hospital and wanted to join three other doctors to the party after the limitation period had expired. The new defendants opposed the motion. Surprise!

The new Act applied. The judge noted that, before the enforcement date of the new Act, the court had discretion in limited circumstances to provide relief from limitation periods. However, there was a change under the new Act. In particular, section 21(1) of the new Act states that if a claim against a person has expired due to a limitation period, then that person cannot be joined as a party to an existing action.

The judge decided that this section was mandatory and left no room for discretion. Accordingly, he decided that the new defendants could not be joined to the action.

Just in case he was wrong in that regard, the judge reviewed whether he would have exercised his discretion to allow the action regardless of the expiry of the limitation period. We will not burden you with that analysis. However, unlike in Joseph, that analysis was extensive. Ultimately, the judge decided that he would not have exercised his discretion.

Compare

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.

For example, assume that, in St. Jean, the judge had decided that if he had the discretion, he would have exercised it to allow the new defendants to be joined to the old action. If the decision in Joseph were correct, then, in St. Jean, the plaintiff would not have been allowed to join the new defendants to the old action, but could have commenced a new action against the new defendants. Then, of course, the plaintiff could have moved to join the two actions or at least to have them tried together. This would be a ridiculous result.

Accordingly, one of the two judges had to be wrong. We feel that the judge in St. Jean was correct. Under the new Act, when a limitation period is missed, it is missed. Game over.