COURT OF APPEAL FOR ONTARIO
Roberts, Thorburn and Coroza JJ.A.
BETWEEN
Never Forgotten National Memorial Foundation
Plaintiff/Responding Party (Appellant)
and
His Majesty the King (Parks Canada)
Defendant/Moving Party (Respondent)
David Fogel and Joel Vale, for the appellant
James Schneider, for the respondent
Heard and rendered orally: June 30, 2026
On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated August 19, 2025, with reasons reported at 2025 ONSC 4785.
REASONS FOR DECISION
1The appellant appeals from the dismissal of its action against Canada. The appellant argues that the motion judge erred in finding that its action was statute-barred and in granting summary judgment.
2In its action, the appellant sought damages and other remedies against Canada, including declaratory relief, because of Canada’s termination of the parties’ Memorandum of Understanding (“MOU”), in accordance with its terms, in relation to the appellant’s proposed construction of a memorial honouring Canada’s deceased soldiers. Canada terminated the MOU in 2016; the appellant commenced the action in 2024.
3Discoverability of the appellant’s claim is not in issue. The appellant also concedes that its damages claim is statute-barred. The appellant submits that the declaratory relief sought in its action is exempt under s. 16 (1)(a) from the operation of the applicable two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“the Act”). The appellant repeats the arguments made on the motion that its declaratory relief has practical effect: it will preserve the appellant’s reputation and clarify that its efforts are in the public interest and are of public importance.
4Having applied the correct governing principles, the motion judge rejected that the appellant’s action fit within any exemption from the two-year limitation period under s. 4 of the Act, or that the declaratory relief will have any practical effect. He summarized his reasons for dismissing the appellant’s action as follows:
In short, I find that the claim for declaratory relief will serve no practical purpose and is simply sought to circumvent the limitation period in s. 4. I am also satisfied that this is not a proceeding exempted under s. 2 of the Act. The plaintiff is not an “aboriginal person” nor does it act on behalf of “aboriginal peoples.” The action is for breach of contract; it is not “based on existing aboriginal and treaty rights”, nor does it involve “equitable claims by aboriginal peoples against the Crown.”
5We see no basis to interfere with the motion judge’s decision, with which we agree for the reasons of the motion judge. As the motion judge succinctly put it: “Granting the declaratory relief will have no practical utility. The dispute between the parties is over”.
6The appeal is therefore dismissed.
7The respondent is entitled to its costs from the appellant in the all-inclusive amount of $5,500.
“L.B. Roberts J.A.”
“Thorburn J.A.”
“S. Coroza J.A.”