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. 21.01(1)(a).
The Court referred to its decision in Kaynes v. BP, P.L.C., 2018 ONCA 337, as an example of a circumstance where the limitation issue could be determined under r. 21.01(1)(a). In that case, the limitation issue could be determined because (1) the parties were in agreement that there were no material facts in dispute, and (2) it was in the context of an event-triggered limitation period under the Securities Act, RSO 1990, c. S.5. The limitation period in that case began to run without regard to the plaintiff’s knowledge of the facts giving rise to the cause of action, in contrast to the discovery-based limitation period under the Limitations Act.
Accordingly, only in very narrow situations will motions to strike under r. 21.01(1)(a) based on a limitation issue be permitted. The Court of Appeal held that “allowing the parties to have a complete factual record before the court prior to the determination of limitation defences is a matter of procedural fairness.”