In Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2012 ONSC 6083, Perell J. considered the availability of the doctrine of special circumstances for limitation periods under the OntarioSecurities Act and other statutes listed in the Schedule to the Limitations Act, 2002.
After reviewing the relevant case law, he held, as a general principle, that the common law doctrine of special circumstances is available in relation to limitation periods contained in statutes listed in the Schedule to the Act. As a result, Perell J. concluded that the doctrine of special circumstances applies to the limitation periods under section138.14 of the Securities Act as it is listed in the Schedule to the Act.
It should be noted that the doctrine of special circumstances does not provide the Court with the general authority to extend a limitation period. Justice Perell explained that in applying the doctrine there is no “formulaic test” to follow, but that it must adapt to myriad factual circumstances, and that ultimately each case must be considered in light of its own facts. However, he nonetheless summarized at paragraphs 135 to 138, various factors and themes in the jurisprudence’s historical application of the doctrine:
One factual theme is whether or not the defendant knew or anticipated that the plaintiff’s claim would be coming. Another theme is whether or onto the defendant had lost evidence or in some other way had suffered a diminished ability to defend himself or herself because of the late arriving claim.
Another related theme is the extent to which the newly arriving claim has the same factual footprint as the claim already before the court. In this regard, it is important to remember that the special circumstances doctrine is tethered to amending an existing claim, and it is not available to commence an action after the expiry of a limitation period. […]
Another theme is the extent to which the purposes of the limitation periods would be frustrated if the special purposes doctrine were applied to extend the running of the limitation period. In other words, was the plaintiff diligent in giving notice and in prosecuting his or her claim, and, on the other side of the coin, was the defendant unaware of the claim and compromised in his or her ability to make full answer and defence.
Yet another theme is that the onus is on the claimant to establish special circumstances.
In cases involving limitation periods outside the ambit of the Act, counsel should have regard to whether the special circumstances doctrine may impact the claim at issue.