In Guay v. BHD Financial Group, Master R. Dash considered whether a limitation period could be extended on account of “special circumstances”. On the facts of the case, the motion to extend the limitation period was dismissed. But the Master seemed to think that the power to extend a limitation period on account of special circumstances has survived the enactment of the Limitations Act, 2002. As has been discussed in various posts on our site, other cases have held that s. 21(1) of the Act has altered the former law.
It does not appear from Master Dash’s reasons, that s. 21 of the Act was cited to the court, so the assumption that the “special circumstances” power still exists might have been part of a ruling made, in part, per incuriam.
The case involved an action arising out of the plaintiff’s fall while on a vacation in the Dominican Republic. The accident happened on February 4, 2004, about a month after the new Limitations Act came into force. The plaintiff sued on May 13, 2005, well within the two-year limitation period. On this motion, she sought to add the tour operator as a defendant. Of course, by now, the limitation period has long since expired.
The Master considered whether the limitation period had been postponed by the “discoverability” principle and held that it had not. The Master then turned to the second issue:
A defendant may still be added if the limitation period has expired if the plaintiff satisfies a two-part test: the plaintiff must establish that there would be no incompensable prejudice to the proposed defendants and that special circumstances exist.
After citing Robertson v. O’Rourke and Wong v. Adler, Master Dash held that special circumstances had not been established here. The motion was dismissed.
However, s. 21(1) of the Limitations Act, 2002 specifically provides for the type of situation that arose in this case:
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.
Other cases have held that this section has changed the law with respect to “special circumstances” (see, for example, our post about Meady v. Greyhound Canada Transportation Corp.). However, a number of other cases have proceeded on the basis that the former power to extend the limitation period continues to exist, unchanged. For the most part though, the judges and masters who have decided those cases do not appear to have had s. 21(1) cited to them. It is curious that this legal lacuna seems to have persisted for more than three years.