Law Times

Law times • OctOber 6/13, 2008 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On LITIGATION Two years is two years under new act Be more vigilant, practitioners warned BY JULIUS MELNITZER For Law Times " Joseph v. Paramount Canada's Wonderland is a clear pronounce- ment that two years is two years un- der Ontario' says Todd McCarthy of Flaherty Dow Elliott & McCarthy, counsel for the defendant Paramount. Indeed, by severely restricting the applicability of the common law doctrine of special circum- stances to the Limitations Act, 2002, the June 2008 decision of the Ontario Court of Appeal comes down squarely in favour of certainty as a guiding principle behind the statute. "Depending on your perspec- s new Limitations Act," tive, a strict limitation regime can be draconian," says Greg Richards of Toronto's WeirFoulds LLP. "But from the perspective of defendants who can get on with their personal or commercial life, it makes total sense." Innez Joseph was injured at the defendant's amusement park on Sept. 5, 2004, at which point the two-year limitation prescribed by the new legislation began running. Joseph notified Paramount of the claim on Sept. 24. The defendant obtained a written statement from her as well as substantial medical documentation long before the limitation expired. Joseph's lawyer diarized the claim and left instructions for his assistant to have the claim issued before Sept. 5, 2006. The lawyer believed that the claim had been issued in time, but the assistant, believing that the former six-year limitation period applied, did not issue it before leaving on vacation during the week of Sept. 4, 2006. The lawyer learned of the error, and on Oct. 31, 2006, forwarded a draft claim to the defendant and issued it the same day. A few days later, he advised Paramount that the claim had not been issued in time through inadvertence. Para- mount received a copy of the issued claim on Nov. 28, 2006 and was formally served on Jan. 30, 2007. Paramount moved under rule 21.01 of the Rules of Civil Pro- cedure to determine whether the action was statute barred. Despite the fact that this was not a case of simply adding a cause of action or a new party to a claim that had been filed in a timely manner, Su- perior Court Justice Gerald Day ruled that he had a discretion to extend the time under the doctrine of special circumstances. Such cir- cumstances existed here, he ruled, because the plaintiff's lawyer had acted inadvertently and there was no prejudice to the defendant. But Justice Kathryn Feldman, writing for a unanimous bench composed also of Justices Janet MacFarland and David Watt, ruled that Day had erred. The special circumstances doc- trine could be found in Canadian jurisprudence since 1972, when the Supreme Court of Canada ap- proved it in Basarsky v. Quinlan. "This common law doctrine gradually came to be applied to motions brought under rule 26 and rule 5 of the Rules of Civil Pro- cedure to amend pleadings or add parties after the expiry of a limita- tion period," Feldman noted. But Feldman concluded that, as a matter of statutory interpretation, the new Limitations Act did not embrace the common law doctrine. "Because s. 4 of the new act mandates a two-year limitation period 'unless this act provides otherwise,' the court must look in the act for the authority to derogate from the application of the two-year limitation period," Feldman wrote. "These opening words compel the conclusion that the new act is intended to be comprehensive." of s. 20 in the context of the com- mon law doctrine of special cir- cumstances, the requirement in s. 20 that the extension must be 'by or under another act' clearly pre- cludes any extension that may be granted at common law as opposed to statute," Feldman concluded. But because the Rules of 'Depending on your perspective, a strict limitation regime can be draconian,' says Greg Richards. 'But from the perspective of defendants who can get on with their personal or commercial life, it makes total sense.' cific provision in the legislation referring to the doctrine of special circumstances, s. 20 did preserve the extension, suspension, or vari- ation of a limitation period "by or under another act." The issue here, then, was whether the com- mon law doctrine in conjunction with the Rules of Civil Procedure met this criterion. "Turning to the interpretation Still, while there was no spe- pretation of the rules by applica- tion of the common law that has incorporated the doctrine of special circumstances to extend limitation periods by adding parties or claims after the expiry of a limitation pe- riod," Feldman wrote. "The rules themselves do not do this." "In my view, it would be ex- tending the meaning of 'under another act' too far to interpret it as including the application of common law principles used to apply the rules, even though the rules themselves are made by regu- lation 'under another act.'" The Limitations Act's specific Civil Procedure are authorized by the Courts of Justice Act, they were arguably made "un- der" another statute. "However, it is only the inter- prohibition in s. 21 against adding parties after a limitation period's expiry reinforced this conclusion. "Section 20 would conflict with s. 21 if it were interpreted to extend to the incorporation of the com- mon law special circumstances doc- trine, thereby allowing the possible addition of parties after the expiry of the limitation period where spe- cial circumstances exist, in conflict with s. 21," Feldman wrote. A contrary interpretation would also defeat the purpose of the legislation. "Instead, we would continue with the procedure that developed under the former act where courts were asked to consider in detail the actions of solicitors who missed limitation periods by neglecting to add parties or claims, and to assess in each case whether there should be relief," Feldman wrote. "Because an extension is a mat- ter of discretion, there was always uncertainty and the perception of a degree of unfairness in the applica- tion of limitation periods." The upshot is that lawyers who mess up, even innocently, will not be able to get off the hook. "As a practitioner, you really have to watch out and be more vigilant than ever, if for no other reason than that two years is quite a change from six years," Richard says. "But certainty is important, and when everyone gets used to the new regime, we should have fewer regrettable cases." LT judge's decision not to award costs because he con- cluded that it had not been reasonable for the plain- tiff to commence or continue the action outside of the rule 76 simplified procedure regime. "Leaving the trial judge's ruling intact would he plaintiff's personal injury bar dodged a bullet when the Ontario Court of Appeal's ruling in Garisto v. Wang reversed a trial Personal injury bar dodges bullet T BY JULIUS MELNITZER For Law Times PAGE 9 have been chilling to plaintiff's counsel who would have to be very conscious of the costs consequences if their assessment of a case turned out to be on the high side and in hindsight they could have pro- ceeded under the simplified procedure," says David Schell of Toronto's Devry Smith & Frank LLP, who represented the plaintiff Pasquale Garisto. But Mark Elkin of Toronto's Thompson Tooze McLean & Elkin, counsel for the defendants Seoktai Wang and Toyota Credit Canada, says that Superior See Reasoning, page 13 WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU ACCESS DOMESTIC AND INTERNATIONAL LEGAL RESOURCES WITH A SINGLE ONLINE PASSWORD? www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-1 1 www.lawtimesnews.com YOU CAN. WestlaweCARSWELL gives you easy access to a world of unsurpassed legal information. With WestlaweCARSWELL, AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:27:46 AM

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