Overview
In Toussaint v. Canada (Attorney General), 2023 ONCA 117 (“Toussaint”), the Court of Appeal for Ontario determined that the motion judge erred in declaring that the plaintiff’s claim was not statute-barred pursuant to the Limitations Act, 2002, SO 2002, c 24, Sch B, as opposed to simply dismissing the defendant’s motion to strike the claim. The decision is a reminder that limitations issues can almost never be properly decided on a motion under Rule 21.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 because the factual background is often disputed and the motion judge is not in a position to make binding factual conclusions on a pleadings motion.
Factual and Procedural Background
Nell Toussaint was excluded from healthcare coverage between 2009 and 2013 at a time when she was not legally a Canadian resident. She commenced an application for judicial review in the Federal Court, which was dismissed. Ms. Toussaint appealed unsuccessfully to the Federal Court of Appeal and then sought, and was denied, leave to appeal to the Supreme Court of Canada. During these legal proceedings, Ms. Toussaint suffered irreversible health consequences.
In 2013, Ms. Toussaint took her case to the United Nations Human Rights Committee (“UNHRC”). In 2018, the UNHRC concluded that Canada had violated Ms. Toussaint’s right to life under the International Covenant on Civil and Political Rights, 19 December 1996, UNTS 171, arts 9-4, and that Canada was required to provide Ms. Toussaint with an appropriate remedy, including compensation. Canada refused to follow the UNHRC’s recommendations.
Ms. Toussaint commenced an action against the federal government on October 14, 2020 seeking damages in the amount of $1.2 million for, among other things, violations of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Canada brought a motion to strike the proceeding under Rule 21.01(1)(b) on the basis that it was plain and obvious that Ms. Toussaint’s action was statute barred.
In reasons for decision released on August 17, 2022, the motion judge not only dismissed Canada’s motion but expressly ordered that “it is plain and obvious that the action is timely.” This finding was important because on the basis of this finding the motion judge went on to expressly preclude Canada from raising a limitations defence at the trial. The federal government appealed from the order of the motion judge.
Rule 21.01(1) and Limitations Issues
Rule 21.01(1)(a) provides for the determination of a question of law raised by a pleading in an action where the determination of the question may substantially shorten the trial or result in a substantial saving of costs. No evidence is admissible on a motion under Rule 21.01(1)(a), except with leave of a judge or on consent of the parties.
Rule 21.01(1)(b) permits a motion to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. A pleading will be struck if it is plain and obvious that the respondent could not succeed in the claim or defence. No evidence is admissible on a motion under Rule 21.01(1)(b).
The Court of Appeal reiterated in Toussaint that “limitations issues can rarely be decided on pre-trial motions to strike under r. 21.01 of the Rules of Civil Procedure. Factfinding is required to assess whether a claim is discovered under s. 5 of the Limitations Act, but factfinding is not contemplated on a pleadings motion.” The Court of Appeal has repeatedly discouraged the use of Rule 21.01(1) to determine limitations issues unless, first, the pleadings are closed and, second, the underlying facts that are related to the limitation period are uncontested.
The Court of Appeal was critical of the motion judge who went beyond the scope of the relief sought on the motion and made a finding against the federal government that the plaintiff’s claim was timely. According to the Court of Appeal, “[i]t is difficult to conceive of a case where it would ever be appropriate to make such a finding against a moving party on a r. 21 motion.”
In this case, Canada had not delivered a statement of defence and no evidence was before the motion judge. He recognized that the plaintiff’s legal theory was “extraordinarily complex” but went on to make binding factual determinations in the context of a pleadings motion. While it was open to the motion judge to dismiss Canada’s motion, the Court of Appeal held that the motion judge erred by ordering that the claim was timely and therefore precluding Canada from relying on a limitations defence at the trial.
Comment
The Court of Appeal’s decision in Toussaint confirms that Rule 21.01(1) has narrow application in the determination of limitations issues. Unless the pleadings are closed and the underlying facts are uncontested (which is almost never the case), then a moving party would be wise to utilize the summary judgment procedure in Rule 20, which provides the motion judge with extensive factfinding powers. Toussaint is also a reminder that a motion judge must generally confine his or her decision on a Rule 21.01(1) pleadings motion based on a limitations defence to the relief sought on the motion and resist the temptation of cutting through the issues raised by the parties to make a boomerang affirmative finding against the moving party that an action is “timely” because “[f]actfinding is required to assess whether a claim is discovered […], but factfinding is not contemplated on a pleadings motion.”
