Legal Blog

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 The cases on limitations keep coming. Chimienti v. City of Windsor 330 D.L.R. (4^th) 148 (Ont. C.A.), the latest, is interesting because it synthesises other cases.

 Action

 The plaintiff sued the police for false arrest and malicious investigation after the case against him collapsed at the end of a 17-day preliminary inquiry process regarding a charge of assault causing bodily harm.

 The charges were dropped on January 30, 2003 and the plaintiff commenced his action on July 31, 2003. The then limitation period was set out in the Public Authorities Protection Act (“PAPA”) and was 6 months.

 Count

 Was the action commenced within 6 months? Under section 89(6) of the Legislation Act, if a period of time is expressed in months, the number of months is counted from the specified day, excluding the month in which that day falls, and the period includes the day in the last month counted that has the same calendar number as the specified day.

 The “specified day”, for purposes of the PAPA was January 30, 2003. The number of months therefore starts with February and goes to the 30^th day of the 6^th month thereafter (i.e. July 30). The statement of claim was issued one day too late.

 Relief

 Could the plaintiff obtain the court’s assistance to extend the limitation period under the special circumstances doctrine, which allows a court to extend the period if there are special circumstances and no prejudice to the defendant? Yes and no.

 The Limitations Act, 2002 (the “Act”) eliminated the special circumstances doctrine. However, if the Act does not apply, the special circumstances doctrine may still be considered.

 Since the limitation period under the PAPA expired before the Act came into force, the transition provisions of the Act stipulate that the PAPA governs, not the Act. Accordingly, the special circumstances provisions were potentially applicable.

 However, the scope of the doctrine only allows the court to add or substitute a party or add a cause of action after the expiry of a limitation period. The doctrine does not allow a party to commence a new action following the expiry of a limitation period.

 Since that is exactly what the plaintiff was requesting, the court declined to relieve against the strict enforcement of the limitation period.

 Delay

 The defendant brought its limitations motion to attack the action in April 2009, over five years after the plaintiff commenced his action and after production and discovery. Rule 2.02 states that a party must obtain leave of the court to bring a motion to attack a proceeding for irregularity if the motion is not made within a reasonable time after the moving party knew or ought to have known of the irregularity or if the moving party took any future step in the proceeding after it knew or ought to have known of the irregularity.

 There is no doubt that the defendant delayed in bringing its motion. The question was whether a limitations motion is a motion attacking an action for an irregularity. The court said no. It interpreted “irregularity”, in light of the provisions of the Rules and the jurisprudence, as a failure to accord with the Rules, not as a failure to accord with any legislation whatever.

 Result

 The plaintiff’s action was out of time and was not saved by the special circumstances doctrine. The defendants were able to bring their motion without leave. However, because the defendants waited so long to bring their motion, the motions judge dismissed the action without costs and the parties agreed that there would be no costs awarded on the appeal.

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