Doctrine of Special Circumstances still used to add parties after the expiration of a limitation period contained in the Trustee Act

In Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 392, the Ontario Superior Court applied the doctrine of special circumstances to add a defendant to an action six years after the limitation period, as established by s.38 of the Trustee Act, expired.

Mr. Graham passed away shortly after having dental surgery where the medical professionals involved negligently failed to remove a medical sponge from his throat. Although the plaintiffs diligently brought an action within the limitation period, they moved to add the radiologist (Dr. Law) more than six years later. The plaintiffs assert that although the discoverability principle does not pertain to limitation periods under the Trustee Act, special circumstances applied because Dr.

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Rajmohan v. Norman H. Solomon Family Trust, 2014 ONCA 352, Doctrine of Special Circumstances Not Applicable to a Third Party claim commenced after the expiration of a limitation period

In Rajmohan v. Norman H. Solomon Family Trust, 2014 ONCA 352, a solicitors negligence case, the Ontario Court of Appeal considered whether the doctrine of special circumstances applied to a third party claim alleging solicitor’s negligence pursuant to the Trustees Act, RSO 1990, c. T. 23.  The Trustees Act contains an absolute two-year limitation period which falls outside of the scope of the discovery-based two year limitation period contained in the Limitations Act, 2002.  While the doctrine of special circumstances remains relevant to those limitation periods which fall outside of the Limitations Act, 2002, The Court of Appeal based on the claim alleged and the scope of the doctrine of special circumstances held that the doctrine did not apply in this case.

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Joseph v Paramount Canada’s Wonderland, 2008 ONCA 469 (Special Circumstances)

In Joseph v Paramount Canada’s Wonderland, 2008 ONCA 469, the Court of Appeal unanimously declared that the common law doctrine of special circumstances is no longer applicable under the new Limitations Act, 2002. The special circumstances doctrine gave judges discretion, where special circumstances could be proven, to extend a limitation period so long as it did not prejudice the other party.  The Court of Appeal reasoned that because limitation periods are designed to provide certainty to litigants, courts would no longer be permitted to extend limitation periods beyond the times prescribed by statute. 

For plaintiffs, this means that they must be diligent in bringing an action within two years of the date of discoverability.

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