Whither “Special Circumstances”?

UPDATE: A number of readers have inquired about the outcome of the motion in which our firm is involved and which is referred to in this post. The motion did begin, but the judge hearing it decided that he had a conflict of interest which prevented him from ruling on it. As a result, the motion was adjourned to be heard towards the end of this year. However, our office has another motion, dealing with s. 21(1) of the Limitations Act, 2002, to be heard next month. As well, readers have advised us of several such motions proceeding in Toronto this fall. So, this issue will probably be considered in several decisions before the end of the year. We’ll keep you posted. 

Just when it looked like it was clear that s. 21(1) of the Limitations Act, 2002 had ended the court’s power to add a defendant after the expiry of a limitation period, a new decision by Justice C. Raymond Harris has raised the question again. The decision also contained a discussion of “misnomer”, an issue which is undoubtedly alive and well under the Limitations Act, 2002.

In Scott v. Driver, the plaintiff had been one link in a chain-reaction series of rear-end motor vehicle collisions. She sued “John Driver” and “Fred Owner”. After the two-year limitation had passed, the plaintiff moved to substitute a real person (“Amy Rouillard”) in place of these fictitious names.

Justice Harris had no difficulty in finding that the requested amendment did not amount to the correction of a misnomer:

The accident involved multiple vehicles and drivers and it was not clear which one(s) were to be captured by the fictitious names used. Indeed, by the affidavit evidence presented, it appears the operator of Car 2 was involved in the suit at a preliminary stage, presumably under the “John Driver” umbrella. For John Driver to now refer to Ms. Rouillard indicates that John Driver is a “moving target”. Ms. Rouillard would not necessarily know, on reading the statement of claim, that she was the intended defendant. See: Kitcher v. Queensway General Hospital, [1997] O.J. No. 3305 (C.A.); Dukoff et al. v. Toronto General Hospital et al. [1986] O.J. No. 188.

His Honour held though, that the plaintiff could still obtain leave to add Ms. Rouillard as a defendant, notwithstanding that expiry of the limitation period, if he could demonstrate an absence of prejudice and the existence of “special circumstances”.

On the facts of this case, His Honour determined that special circumstances had not been established and so, he refused the amendment. But it seems to us that there is a more fundamental question: could Justice Harris have granted the amendment even if he had found that “special circumstances” had been proved?

We recently posted a comment about Meady v. Greyhound Canada Transportation Canada Ltd., in which Justice George Smith held that s. 21(1) of the Limitations Act, 2002 no longer permits courts to add defendants to proceedings after the expiry of a limitation period, except to correct a misnomer. Section 21 reads as follows:

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

Smith J. also said that this section applies to motions to amend brought after January 1, 2004.

Inexplicably though, there have been several decisions handed down since January 1, 2004, in which courts have proceeded on the basis that they still have the power to add defendants after the expiry of a limitation period, provided “special circumstances” are present. In each such case, section 21 has not been referred to in the reasons, leading to the inference that the section’s effect was simply not argued. Scott v. Driver is another such decision.

Our office will be arguing a motion next week, in which s. 21’s applicability is a central issue. So, one way or the other, this issue should be clarified soon.

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