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

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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.

The third party claim was commenced more than two years after the clients death, and therefore, was statute barred.  However, the appellant argued, inter alia, that the doctrine of special circumstances applied so as to enable the claim to proceed.  The appellant argued that because the applicable limitation period was prescribed under the Trustee Act, the doctrine of special circumstances continues to be available and permitted the court to add parties to an existing action after the expiration of the limitation period.  The Court of Appeal noted that notwithstanding that the applicable limitation period is prescribed by the Trustees Act, the third party claim itself was an action under the Rules of Civil Procedure.  Thus even if the doctrine of special circumstances applies to a claim under the Rule of Civil Procedure (a point which the Court of Appeal did not decide), the scope of the doctrine does not permit a party to commence a third party claim after the expiration of a limitation period.  Rather, the doctrine permits an amendment to an existing claim, including the addition of parties, after the expiry of a limitation period.    

On the facts before them, the Court of Appeal did not rule definitively on this issue and held ”The doctrine of special circumstances, if it applies [to actions under the Rules of Civil Procedure], does not allow a party to commence a third party claim after the expiration of a limitation period …” 

The Court held that the doctrine of special circumstances had no application because this was not a case where the appellant sought to add a new party or amend an existing claim.  Instead, the appellant sought to commence an entirely new action beyond the applicable limitation period.  This conclusion is consistent with the ONCA’s earlier ruling in Joseph v. Paramount Canada’s Wonderland, where it was noted that the special circumstances doctrine “contemplate[s] only the power to amend or add a claim or party to an existing action” and does “not give the court the authority to allow an action to be commenced after the expiry of a limitation period” [emphasis added].

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