Skip to content

Brought to you by

Dentons logo

Limitations Law Blog

Updates on key developments on laws involving limitation periods in Ontario.

open menu close menu

Limitations Law Blog

  • Home
  • About us

Interlocutory Motions: When is a Finding of Fact on a limitations issue Final?

By Dentons Limitations Law Group
November 22, 2018
  • Adding a Party
  • Discoverability
Share on Facebook Share on Twitter Share via email Share on LinkedIn

In Prescott & Russell (United Counties) v David S. Laflamme, 2018 ONCA 495​, the Court of Appeal for Ontario held that interlocutory motions requiring a finding in respect of a limitations issue does not, in fact, mean that the motions judge has made a final and binding finding on that limitations issue. Accordingly, the issue is still to be determined at trial.

The plaintiff brought a motion under Rule 5.04(2) for an order adding WSP Canada Inc. (“WSP”) as a defendant in an ongoing action. WSP argued that the 2-year limitation period had already expired. The motions judge held that the plaintiff could add WSP as a defendant to the action because of the discoverability principle.

On appeal, the Court of Appeal’s analysis focused around the availability of the limitations defence at trial. The Court held that because the order was interlocutory, WSP retained the right to raise the limitations issue at trial. The Court of Appeal identified four factors relevant to the analysis: the terms of the original order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and any other contextual factors that inform the nature of the order.

Despite the fact that the motions judge’s reasons focused primarily on the discoverability issue, the Court of Appeal noted that the underlying Order did not reference the Limitations Act, 2002. Further, and despite the motions judge making numerous references to, and clear findings of fact regarding discoverability in the context of analyzing the applicability of the limitations issue, the Court of Appeal held that the motions judge’s reasons did not contain any language suggesting that the findings regarding the applicability of the Limitations Act, 2002 applied beyond the motion itself. In other words, a trial judge would not be bound by the motions judge’s findings regarding discoverability.

The Court of Appeal further pointed to the fact that motions made under rule 5.04(2) of the Rules of Civil Procedure(motions to add a party to a proceeding) do not, as a rule, generate findings that are binding on the trial judge. Finally, the Court referred to the language of s. 21 of the Limitations Act, 2002, which forbids adding a party where a limitation period has expired. The Court noted that there does not necessarily need to be an affirmative finding that a limitation period has not expired in order to permit a party to be added to a proceeding.

While this decision is ultimately correct, it creates a moment for pause – if the trial judge ultimately determines that the limitation period had expired such that WSP should have never been added, WSP would have been dragged through years of needless litigation when it never should have been added in the first place. From the defendant’s perspective, in order to avoid having to argue the limitations issue twice, a defendant may consider consenting to being added as a party without prejudice to its right to maintain its limitation defence at trial. If the defendant feels they have a very strong limitations defence, then the defendant may consider immediately moving for summary judgment under Rule 20, as the Court recently determined that a Rule 21 motion is no longer appropriate where a limitations question is at issue (see Brozmanova v. Tarshis, 2018 ONCA 523).

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Dentons Limitations Law Group

About Dentons Limitations Law Group

The Limitations Law Blog contains summaries of the latest developments arising from appellate and lower court decisions on limitations law in Ontario. Subscribe today and be one of the first to receive our insights on recent limitations law developments in Ontario.

All posts

RELATED POSTS

  • Adding a Party

OCA addresses evidentiary burden of proving that plaintiff did not act with due diligence in order to rely on a limitations defence

By Dentons Limitations Law Group
  • Discoverability

Welch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611 (discoverability and adding a party after the expiration of a limitation period)

By Dentons Limitations Law Group
  • Discoverability

Continuing Breaches of Contract and Discoverability

By Dentons Limitations Law Group

About Dentons

Dentons is designed to be different. As the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries, we can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you. www.dentons.com

Dentons boilerplate image

Twitter

Categories

  • Acknowledgment
  • Adding a Party
  • Amending Pleadings
  • Attempted Resolution
  • Contribution and Indemnity
  • COVID-19
  • Demand Obligations
  • Discoverability
  • Enforcement of Foreign Judgments
  • General
  • Limitation Periods contained in "Other Acts"
  • Limitation Periods in Federal Court
  • Misnomer
  • Motions to Strike
  • Notable cases in other provinces
  • Special Circumstances
  • Statutory Variation of Time Limits
  • Successors
  • Tolling/Varying Agreements
  • Transitional Provisions
  • Ultimate Limitation Periods

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2023 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site