In Brozmanova v Tarshis, 2018 ONCA 523, the plaintiff sought damages of $1.1M from the defendants, a plastic surgeon and an employee of the surgeon’s medical practice. The plaintiff alleged that Dr. Tarshis performed surgical procedures on her, for which she paid him directly as the services fell outside of those covered by OHIP. She further alleged that in 2009 she learned that Dr. Tarshis had submitted to OHIP charges for treating her for two conditions; however, she claimed that she never suffered from those conditions and the claims submitted were fraudulent. In 2009, she was informed by OHIP that entries for those conditions would be removed from her medical record. She learned in April 2015 that the two entries hadn’t been removed and as a result, she was not able to obtain health insurance to travel outside of Canada. She sought damages for pain and suffering and punitive damages. The defendants moved under rules 21.01(1)(a) and (b) to strike the statement of claim on the basis that she had discovered the claim in 2009 and the 2-year limitation period had since expired. No evidence was filed on the motion.
Rule 21.01(1)(a) permits a pre-trial motion for the determination of a “question of law.” The motion judge struck the appellant’s statement of claim in part on this basis, finding the 2 year limitation period began to run in 2009, and had expired. The plaintiff appealed.
The Court of Appeal acknowledged that prior jurisprudence has allowed a defendant to use rule 21.01(1)(a) to determine its limitations defense “where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired.” However, Brown J.A., writing for the Court, clarified that the determination of a limitation period under section 5(1) of the Limitations Act is a question of fact, and not a question of law. It requires the motion judge to make two findings of fact: (1) the day on which the person first knew of the four elements identified by s. 5(1)(a)(i)-(iv) of the Limitations Act; and (2) under s. 5(1)(b), “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in” s. 5(1)(a). The earliest of the two dates is the date on which the claim is discovered. Thus, the Court held that relying on rule 21.01(1)(a) to advance a limitation period defence is a problematic use of the rule.
The Court discussed the shortcomings of allowing such motions for limitation period defenses. In doing so, it instructed that courts must recognize permitting limitations defenses under rule 21.01(1)(a) could prove unfair to a plaintiff because they cannot, as of right, file evidence to explain when the claim was discovered for the purposes of the Limitations Act. A plaintiff risking dismissal of their action on the basis of a limitations defence should not have to request permission to file evidence on the issue of when they discovered the claim. The Court held it is unfair for a defendant to attempt, tactically, to deprive the defendant of the right to file such evidence, and to impose the unnecessary expense and risk of asking permission to do so. On this basis, Brown J.A. held that requiring a defendant to move under an evidence-based rule – either rule 20 (summary judgement) or rule 51.06 (concerning the admissions of the truth of facts in a pleading – avoids such potential unfairness and is to be preferred.