A Rule 21 motion is appropriate to determine a limitation issue when no material facts are in dispute, and no finding of discoverability is required

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In Davidoff v Sobeys Ontario, 2019 ONCA 684, the Court of Appeal for Ontario considered the formal requirements that must be in a Notice of Action in order to properly commence a claim within the limitation period, and whether it was appropriate to bring a Rule 21 motion to strike to determine a limitation period issue.

The plaintiff brought an action against the defendant for wrongful dismissal. Both parties agreed that the limitation period expired on October 6, 2017 – two years following the termination of employment. On September 29, 2017, the plaintiff mailed a letter entitled “Notice of Action for Wrongful Dismissal and Defamation of Alexander Davidoff” to the defendant’s Director of Human Resources and emailed the same letter to the defendant’s lawyer. However, the letter did not conform to Form 14C of the Ontario Rules of Civil Procedure, was not signed by the local registrar of the Ontario Superior Court of Justice, and did not contain the court seal.

The defendant brought a Rule 21 motion seeking to strike the claim on the basis that the September 29 letter did not conform to the requirements for a Notice of Action under Rule 14.03(2) of the Rules. The Court of Appeal held that a Notice of Action must meet the formal requirements contained in Rule 14, which requires an action commenced by a Notice of Action to conform to Form 14C. Accordingly, the Court held the letter sent by the plaintiff was not a Notice of Action pursuant to the Rules of Civil Procedure and therefore, could not have commenced the proceeding.

In deciding the issue, the Court of Appeal held that this was one of the rare cases in which it was appropriate to determine a limitation issue on a motion to strike. The parties both agreed on the date the claim became discoverable and when the limitation began. Thus, the Court concluded that there was no risk of unfairness in striking the claim as there were no material facts in dispute and there was no issue of discoverability. The Court stated that there would be no utility in requiring a defence to be filed and the additional step would serve no purpose.

Co-authored by Ilan Levy