Court File and Parties

COURT FILE NO.: CV-12-463623 DATE: 20170112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Vancise, Plaintiff/Responding Party AND: Attorney General of Canada and The Minister of Agriculture and Agri-Food, Defendants/Moving Party

BEFORE: Madam Justice Kristjanson

COUNSEL: Brad Teplitsky, for the Plaintiff/Responding Party Wendy Wright, for the Defendants/Moving Party

HEARD: January 11, 2017

Endorsement

[1] This motion for summary judgment is brought by the defendants. I am directing that the matter be adjourned to be brought back before me in accordance with my directions.

[2] The defendants brought a motion for summary judgment based on the two year limitation period set out in section 45(1)(h) of the Limitations Act, R.S.O. 1990, c. L.15 (Former Limitations Act), as set out in the Notice of Motion and pleaded in para. 53 of the Statement of Defence. The defendants filed a substantially revised factum December 19, 2016. Plaintiff’s counsel states he did not receive the factum until December 24, 2016.

[3] The plaintiff filed no affidavit evidence on the motion. He handed up his factum on the return date of the motion. He did not file a brief of authorities. He submitted in oral argument that the applicable limitation period was the six year period set out in s. 45(1)(g) of the Former Limitations Act, as an “action upon a case….”, and the defendants could not succeed under s. 45(1)(h) as that was restricted to cases involving a penalty. He based this on the plain meaning of the Former Limitations Act. He did not raise the s. 45(1)(g) argument in his factum.

[4] Having now conducted my own legal research, in the absence of any legal authority on the point provided by the parties, it appears to me that the applicable limitation period is indeed s. 45(1)(g) of the Former Limitations Act. Thus, in Zurich Indemnity Co. of Canada v. Matthews, 2005 ONCA 14130, 2005 CarswellOnt 1629, [2005] O.J. No. 1687, 198 O.A.C. 304, Gillese J.A. held for the Court:

Section 45(1)(h) Applies Only to Penal Actions

29 The English Court of Appeal considered the antecedents of s. 45(1)(h) in Thomson v. Lord Clanmorris (1900), [1900-03] All E.R. Rep. 804 (Eng. C.A.). Lindley M.R. stated that s. 3 of the Civil Procedure Act, 1833, 3 & 4 Geo. IV, c. 42, — the statutory equivalent and predecessor to s. 45(1)(h) of the Limitations Act — was intended to apply to penal actions. He held that an action brought under s. 3 of the Directors' Liability Act, 1890, to recover damages from a director for loss sustained by reason of an untrue statement in a prospectus, was compensatory, not penal, and that consequently s. 3 of the Civil Procedure Act, 1833, did not apply. In coming to this conclusion, Lindley M.R. stated at pp. 806- 07:

The first thing that I will deal with is s. 3 of the Civil Procedure Act, 1833, which has been so much relied upon. In construing that enactment, as in construing any other enactment, you must look, not only at the words used, but at the history of the Act, and consider what were the reasons which led to its being passed. You must look at the mischief which had to be cured as well as the cure afforded. And when you have looked at the state of the law previous to the Civil Procedure Act, 1833, you see pretty well what it was that had to be dealt with. There were certain causes of action as to which there was no defined time of limitation. Some of them were alluded to in the earlier part of the section — actions for debt on specialties and other things which are there enumerated. They were not provided for by the existing statutes of limitations, and they are brought in. That was defect number one. There was another class of actions as to which there was no definite time for suing. Those were actions for penalties and damages and sums of money given by various Acts of Parliament by way of penalty or punishment and not by way of compensation. But as was pointed out by LORD ESHER, M.R., when commenting in Saunders v. Wiel, [1892] 2 Q.B. 321 upon Adams v. Batley, 18 Q.B.D. 625, the punishment was there an object. And, whether you call it penalty, damages, or sum of money, it was not assessed with a view to compensate the plaintiff, although he might put some of it in his own pocket. That is the class of action. In other words, they were what are popularly called "penal actions." You get at that from the history of the legislation, and from knowing what the state of the law was and what the defect was.

30 In Tabar v. Scott (1989), 1989 ONCA 4088, 70 O.R. (2d) 133 (Ont. C.A.), Finlayson J.A., on behalf of the court, quoted at length from the judgment of Lindley M.R. and noted that the decision in Clanmorris had been followed by the Federal Court of Canada and the Alberta Court of Appeal. He held that a complaint under the Human Rights Code was not an action and that therefore s. 45(1)(h) could not apply. Nonetheless, while he found it unnecessary to determine whether s. 45(1)(h) was limited to penal actions, he expressly approved the reasoning of Lindley M.R. in Clanmorris saying, at p. 144:

If I was obliged to consider the matter from this perspective, I do not think I could ignore the reasons of Lindley M.R. in Clanmorris. When a judge of his experience and reputation stated so baldly that the genesis of s. 45(1)(h) referred to "penal actions" and based that assertion on "the history of the Act, and from a knowledge of the then state of the law and the defect which was to be cured", it hardly lies in my mouth to contradict him. Certainly no one else has. Despite Robinson v. Essex, I do not think that s. 45(1)(h) has any application to the remedies sought under the Code. Even if the complaint of Tabar can be construed as an "action", it is not a penal action and s. 45(1)(h) does not apply.

31 In Abraham v. Canadian Admiral Corp. (Receiver of) (1998), 1998 ONCA 2081, 39 O.R. (3d) 176 (Ont. C.A.), McKinlay J.A., writing for the majority, approved of the comments of Finlayson J.A. in Tabar v. Scott.

35 For these reasons, in my view, the weight of authority is to the effect that s. 45(1)(h) of the Limitations Act applies only to penal actions. A factor that further militates in favour of interpreting s. 45(1)(h) as applying only to penal actions is the passage of new limitations legislation. The comments of Feldman J.A. in Lax v. Lax (Ont. C.A.) at para. 35, although made in the context of enforcement of foreign judgments, are equally apt in the circumstances of the within appeal:

[T]he legislature has now passed a new Limitations Act that radically changes the approach to limitations generally, imposing a standard two-year limitation for most actions and eliminating any limitation on the enforcement of court orders. ... [T]he existence of the new Act is another factor that militates in favour of leaving the original meaning of the sections of the former Act as they have been interpreted historically.

[5] I also conducted my own research with respect to section 45(1)(g), and it appears that the applicable provision relates to “actions upon the case” (from which the tort of negligence is derived), and that limitation period provides the action must be brought within six years after the cause of action arose: Robert Simpson Co. v. Foundation Co. of Canada, 1982 ONCA 1750, 1982 CarswellOnt 383, 36 O.R. (2d) 97 (C.A.). I did not review discoverability under the Former Limitations Act, although this would be an issue to be canvassed on the motion.

[6] In light of this, I am of the view that the limitation period summary judgment brought under s. 45(1)(h) must fail, subject to any arguments that the parties wish to make with respect to the two cases I refer to above. I make this determination without prejudice to the defendants to amend their claim, and to bring back the summary judgment motion as amended.

[7] I am concerned that the factual and legal arguments made before me with respect to the two year limitation period in s. 45(1)(h) are equally applicable to the six year limitation period in s. 45(1)(g). The defendants’ argument was that the events giving rise to the claim were essentially all known to the plaintiff in 1996, or were discoverable, but the claim was not commenced until 2012. I have heard arguments and reviewed the materials filed on the two year limitation period issue which would appear to be equally applicable to the six year limitation period argument.

[8] Plaintiff’s counsel indicated that if the summary judgment motion and defence were based on s. 45(1)(g), he would have filed different material, including affidavit evidence in response.

[9] The purpose of the summary judgment motion rule is to determine cases on the merits where this fair, just and proportional. The limitation period motion may finally dispose of all issues, in an efficient and proportional manner. As such, I will grant the defendants another opportunity to present the limitation period case, and I have identified the additional steps that will be required to do so to enable the court to decide the remaining issues, as suggested in para. 33(3)(b) of Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200.

[10] I am seized of the remaining steps directed in this endorsement, as per the Supreme Court of Canada’s statement in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, para. 78.

[11] In light of this, I direct as follows:

1. If the defendants have any submissions to make that s. 45(1)(h) is the applicable limitation period notwithstanding the cases I refer to above, they are to make those submissions to me by January 17; the plaintiff may respond by January 23.
2. If the defendants instead wish to amend the Statement of Defence pursuant to Rule 26.01 of the Rules of Civil Procedure, and amend the existing Notice of Motion to plead s. 45(1)(g), they may make such a motion in writing to me pursuant to Rule 37.12 of the Rules of Civil Procedure, by no later than January 18, and the plaintiff will indicate no later than January 24th if it intends to oppose the amendment; if so, the plaintiff must file responding written materials on the amendment by January 30.
3. If the defendants amend their Notice of Motion and Statement of Defence, and intend to bring summary judgment on the s. 45(1)(g) limitation period issue, they are to serve and file with me the amended Notice of Motion and Statement of Defence no later than ten days after my decision on the proposed amendments.
4. If a limitation period summary judgment motion is brought under s. 45(1)(g), all parties may rely on the materials filed to date, but are at liberty to file additional materials.
5. If the plaintiff intends to file evidence on the s. 45(1)(g) limitation period summary judgment motion, all evidence pursuant to Rule 20.02(2) of the Rules of Civil Procedure must be filed within 15 days of receipt of the amended Statement of Defence and Amended Notice of Motion set out in para. (3) above.
6. Cross-examinations on affidavits to be completed within twenty days of the filing of the plaintiff’s evidence, if required.
7. Defendants’ Amended Factum due within 20 days of the completion of cross-examinations or if no cross-examination, within 20 days of step 5.
8. Plaintiff’s Amended Factum due within a further 20 days.
9. Reply factum, if any, due within a further 8 days.
10. The defendants may schedule the motion for summary judgment before me at any time after step 3 is completed, for determination of the balance of the summary judgment. Scheduling of a two hour summary judgment motion may take months, and counsel are advised to seek a date as early as possible.
11. Costs of today’s attendance will be dealt with at the summary judgment motion.
12. Any party may obtain further directions with respect to the motion for summary judgment or any other aspect of this order at a 9:00 a.m. case conference to be arranged through my judicial assistant.
13. Counsel for the defendants to conform whether or not plaintiff’s counsel was served with the Amended Factum on December 19, 2016, and provide proof of e-mail service to me.

Kristjanson J. Date: January 12, 2017