Ontario: A Look At 2015 In Limitations Law

As Ontario's Limitations Act, 2002 approaches adolescence, the flow of jurisprudence interpreting its provisions has slowed from a torrent to a manageable stream.

Areas of controversy remain. In 2015, two Superior Court decisions reached conflicting conclusions about the meaning of section 18(1), which determines when the limitation period runs for contribution and indemnity claims.

This section deems the date of service of a statement of claim to be the date the act or omission giving rise to the contribution and indemnity claim took place. The conflict is whether time always runs from this date, or whether the section 5 discovery provisions can postpone it. It is an issue relevant only when a defendant discovers a contribution and indemnity claim sometime after service of the statement of claim. You would think this happens rarely, but it was at issue in at least three decisions this year.

Delivered first was Miaskowski v. Persaud, 2015 ONSC 1654, in which Justice Paul Perell held that discoverability does not apply to section 18(1) because of the provision's language. It uses the word "deemed", a declarative legal concept, and a "firmer or more certain assertion of discovery" than the presumption in section 5(2) of the Act (that is, a claimant is presumed to have discovered her claim on the day the act or omission giving rise to it took place, unless she proves otherwise).

A few months later, Justice I. F. Leach reached the opposite conclusion in Demide v. Attorney General of Canada et al., 2015 ONSC 3000, In his view, approaching section 18(1) as a self-contained deeming provision ignores its opening words ("For the purposes of subsection 5(2) and section 15..."). Section 5 and 15 determine the commencement of the basic two-year and ultimate 15-year limitation periods respectively. Section 18(1) merely dictates that the date of service of the statement of claim is the presumptive commencement of the basic two-year limitation period and the commencement of the ultimate limitation period.

It would seem that the analysis in Demide should prevail. If section 18(1) is an absolute two-year limitation period beginning on a fixed date, the ultimate limitation period could never apply, and there would be no reason for section 18(1) to reference it. The issue is ripe for the Court of Appeal.

The year's other noteworthy limitations jurisprudence considered the importance and timeliness of motions for summary judgment on limitations defences.

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