By Zachary Sherman and Linette King
In Wyatt v. Mirabelli, the Court of Appeal has demonstrated the Court’s ongoing reluctance to strike out statute-barred claims under r. 21.01 of the Rules of Civil Procedure.
In Davidoff v. Sobeys Ontario, the Court noted that it would only be in rare circumstances that a limitations issue could be properly decided on a r. 21.01 motion to strike.[1] Subsequently, in Kaynes v. BP p.l.c., the Court addressed the issue in the context of r. 21.01(1)(a) specifically, reasoning that:
A claim should not normally be struck out as statute barred using r. 21.01(1)(a)… discoverability issues are factual and that rule is intended for legal issues only where the facts are undisputed.”[2]
The Court affirmed its reasoning from Davidoff and Kaynes when it rendered its decision in Toussaint v. Canada (Attorney General). There, the Court reiterated that:
Limitations issues can rarely be decided on pre-trial motions to strike under r. 21.01… Factfinding is required to assess whether a claim is discovered under s. 5 of the Limitations Act, but factfinding is not contemplated on a pleadings motion…. It is appropriate to address limitations issues on a pleadings motion only ‘where pleadings are closed and the facts relevant to the limitation period are undisputed’… this is true whether the motion is brought under r. 21.01(1)(a) or (b).”[3]
Accordingly, the principles set down by the Court of Appeal have generally served to rebuke attempts to strike claims where issues of discoverability are at play. This line of reasoning was most recently affirmed by the Court of Appeal in Wyatt v. Mirabelli.
In Wyatt, the Court overturned the motion judge’s decision to grant the defendants’ motion to strike for breaching the limitation period.[4] Echoing principles from the prevailing authorities, the Court determined that the circumstances before it were not conducive to striking the claim on the basis of a limitations defence. In doing so, the Court reaffirmed the proposition that it will only be in rare circumstances that limitations defences are properly brought under r. 21.01. For greater insight, details of the decision in Wyatt are discussed below.
The Facts
The underlying dispute in Wyatt stems from water infiltrating onto the Appellant’s land from the properties of the neighbouring Respondents.[5] The Appellant alleged that in spring of 2016, he consented to the Respondents conducting “slight” grading of a path to clear some surface water from their property.[6] Instead, the Respondents allegedly graded a trench, damaging an existing tile drainage system which flooded the appellant’s property.[7] After discovering the damage some two months later, the Appellant asked the Respondents to make repairs, but the Respondents refused.[8]
The Appellant further alleged that in December of 2020, he discovered heavy water flows coming onto his property from an installed drainage ditch and other locations adjacent to his property.[9] The Appellant also alleged that in April of 2022, he discovered heavy water flows entering his property through a culvert that the Respondents were using for water drainage.[10]
The Statement of Claim was issued on November 7, 2022.[11] The Respondents, relying on the Limitations Act, 2002, did not serve and file a defence but brought a motion for the determination of a question of law pursuant to r. 21.01(1)(a).[12]
The Decision Under Appeal
Finding that, on the pleadings, the Plaintiff (Appellant) discovered his claim when he discovered the damage to the drainage system in 2016, the motion judge accepted the limitations defence and struck the claim.[13] The motion judge also rejected any basis for a continuing cause of action.[14]
The Appeal
Applicable Principles
The appeal concerned the motion judge’s determination of a question of law. As such, the applicable standard of review was correctness.[15] After setting out the principles applicable to discoverability under s. 5(1)(a) of the Limitations Act, Justice Pepall, writing for a panel of judges including Justice Paciocco and Justice Sossin, relied on the Court’s prior reasoning from Kaynes and held that:
Generally, a claim should not be struck out as statute barred as a result of a limitation period pursuant to r. 21.01(1)(a). Discoverability issues, which are engaged by a limitation period defence, are factual and r. 21.01(1)(a) is intended for legal issues only where the facts are undisputed…[16]
The Court iterated the principles applicable to r. 21.01(1)(a) motions, which are:
1. the test is whether the determination of the issue is plain and obvious;
2. the pleaded facts in the statement of claim are assumed to be true unless patently ridiculous or manifestly incapable of proof; and
3. the statement of claim should be read as generously as possible.[17]
Justice Pepall endorsed the reasoning of Justice Jamal in Beaudoin Estate v. Campbellford Memorial Hospital, where he went through a long line of decisions where the court “discouraged using r. 21.01(1)(a) to determine limitation issues, except in very narrow circumstances where pleadings are closed and the facts relevant to the limitation period are undisputed.”[18] Justice Pepall went on to write that these exceptions will be unusual, considering that counsel will not typically advance a claim that is “undisputably acknowledged to be statute barred”.[19]
Application of Principles
The Appellant ultimately conceded that claims related to the 2016 water infiltration were statute-barred. However, the motion judge’s ruling with respect to the 2020 and 2022 instances of water infiltration remained at issue. The Appellant argued that the judge incorrectly treated these instances as one event.[20] The Respondents’ contended that although water infiltration emanated from multiple sites, the statement of claim only alleges one tortious act as the source of the flooding.[21]
Justice Pepall found that while the motion judge appreciated the trend in the jurisprudence to discourage using r. 21.01(1)(a) to advance limitations defences, he failed to read the Appellant’s claim as generously as possible.[22] In doing so, he treated the 2016 and 2020 allegations as interchangeable, and completely disregarded the 2022 allegation.[23] Reading the statement of claim generously, Justice Pepall held it was not plain and obvious that the Appellant had only pleaded one instance of actionable conduct, which was statute barred.[24]
Despite an acknowledgement that the statement of claim was not ideally drafted,[25] the Court applied a generous review of the claim and found that it was not plain and obvious that the 2020 and 2022 instances of water infiltration emanated from the same act that caused the flooding in 2016.[26]
In deciding to allow the appeal, the Court mentioned the desirability of waiting until pleadings are closed before bringing such a motion, or alternatively, bringing a r. 20 motion for summary judgment after the exchange of pleadings.[27]
Takeaways
The decision in Wyatt reinforces that counsel should proceed with great caution when contemplating whether to advance a limitations defence pursuant to r. 21.01. The factual nature of discoverability issues and the restriction of r. 21.01(1)(a) to questions of law makes them a difficult fit at best. While r. 21.01(1)(b) is not so constrained, the inability of the parties to adduce evidence under the rule makes it challenging to resolve issues of discoverability under this rule.
Therefore, where the narrow exceptions against using r. 21.01 to advance limitations defences do not apply, the supported course of action is to wait until pleadings have been exchanged before bringing a motion for summary judgment pursuant to r. 20.[28] Otherwise, defendants should ensure they advance their limitations defence in their pleadings in order to argue issues of discoverability on the merits.
[1] 2019 ONCA 684 at para 10.
[2] 2021 ONCA 36 at para 81.
[3] 2023 ONCA 117 at para 11.
[4] 2025 ONCA 178 [“Wyatt”] at para 27.
[5] Wyatt at para 3.
[6] Wyatt at para 5.
[7] Wyatt at para 5.
[8] Wyatt at para 6.
[9] Wyatt at para 7.
[10] Wyatt at para 9.
[11] Wyatt at para 3.
[12] Wyatt at para 11.
[13] Wyatt at para 12.
[14] Wyatt at para 12.
[15] Wyatt at para 14.
[16] Wyatt at para 19.
[17] Wyatt at para 20, citing Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 at para 14.
[18] Wyatt at para 21; see also Beaudoin Estate at para 31; Salewski v. Lalonde, 2017 ONCA 515 at para 45; and Clark v. Ontario (Attorney General), 2019 ONCA 311 at para 48.
[19] Wyatt at para 21.
[20] Wyatt at para 22.
[21] Wyatt at para 23.
[22] Wyatt at para 24.
[23] Wyatt at para 24.
[24] Wyatt at para 25.
[25] Wyatt at para 26.
[26] Wyatt at para 25.
[27] Wyatt at para 26.
[28] See, for example, Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC) where this was done successfully.
