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

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.

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Court of Appeal continues to discourage motions to strike brought under r. 21.01(1)(a) on a limitation issue, except in narrow circumstances

In Clark v. Ontario (Attorney General), 2019 ONCA 311, the defendant attempted to bring a motion under rule 21.01(1)(a) on a limitation issue before it had filed its defence. The motion judge dismissed the motion to strike on the basis that the claim was time-barred, which was upheld on appeal. The Court of Appeal for Ontario reiterated its position that commencing a motion under r. 21.01(1)(a) on limitations matters is discouraged, except for very limited situations where pleadings are closed and the facts are not in dispute. Because the basic limitation period is premised on the discoverability rule, the application of which raises mixed questions of fact and law, there are very few circumstances in which a limitation issue under the Limitations Act, 2002, can properly be determined under r.

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