with the Old:
The Doctrine of Special Circumstances and the Limitations Act,
By: Linda Rondinelli, B.A., LL.B.
Project Manager, TVA | The Legal Outsourcing Network
Until the Ontario Court of Appeal’s recent decision in Joseph
v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d)
401 (C.A.), many lawyers in Ontario thought they could still rely
on the common law doctrine of special circumstances, which gave
the Court the discretion to extend a limitation period after its
expiration, if special circumstances existed.
The doctrine, which originated with the Supreme Court of Canada’s
1972 decision in Basarsky v. Quinlan,  S.C.R. 380
came to be increasingly applied to motions to add parties (Rule
5.04) and to amend pleadings (Rule 26.01). This allowed parties
to argue on a motion that special circumstances existed which should
allow the Courts to allow the amendments, add a party, or add a
cause of action after the expiry of a limitation period where special
circumstances existed, unless prejudice would result that could
not be compensated for by costs or an adjournment.
The Court of Appeal in Joseph has unequivocally pronounced
that the doctrine no longer applies under the new Limitations
Act, 2002 S.O. 2002, c. 24, Sch. B.
The facts in Joseph are enough to send chills down the
spine of any civil litigator. The plaintiff, Innez Joseph was injured
at Canada’s Wonderland on September 5, 2004. There was no
question that the limitation period began to run on that date, and
there was also no question that the two year limitation period prescribed
by the Limitations Act, 2002 applied. The defendant was
notified of the claim less than 3 weeks after the incident, and
also received several medical documents regarding the plaintiff’s
injuries well within the two year period.
Mr. Joseph’s lawyer properly entered the matter in a “tickler”
system, drafted the claim, and instructed his assistant to have
the claim issued before September 5, 2006. The assistant was scheduled
for vacation the week of September 4, 2006 and, believing the six-year
period still applied, left for her vacation without issuing the
When the plaintiff’s lawyer learned of the error, he sent
the draft claim to the defendant on October 31, 2006, and issued
the claim the same day. He sent a copy of the issued claim on November
28, 2006 and formally served it on January 30, 2007.
All told, the limitation period was missed by less then 2 months.
The defendant moved under Rule 21.01 for a ruling on whether the
action was statute-barred. The motions judge held that he had the
discretion under the doctrine of special circumstances to extend
the time to commence the action. The motions judge held that special
circumstances existed, as there was inadvertence on the part of
the lawyer and no prejudice to the defendant.
The defendant successfully appealed to the Court of Appeal, which
held that the action was statute-barred.
The Court of Appeal interpreted the new Limitations Act
strictly, and held that there no longer exists the common law discretion
to extend limitation periods by applying the doctrine of special
circumstances. Section 4 of the Act makes it clear that there is
a two-year limitation period unless the Act provides otherwise.
Thus, the Court held, it is bound strictly by the wording of the
Act. The legislation could have incorporated the common law doctrine
of special circumstances in the same way that it codified the discoverability
principle, but it did not.
In a concurrent decision released the same day, the Court of Appeal
held in Meady v. Greyhound Canada Transportation Corp.
(2008), 90 O.R. (3d) 774 (C.A.) that the Courts do retain
discretion under the transition provisions of the new Act
to extend the former limitation period by applying the common law
doctrine of special circumstances.
Master Glustein was the first to apply and follow the Joseph
and Meady decisions in Thompson v. Zeldin 
O.J. No. 3591, a judgment released on September 17, 2008. In Thompson,
the plaintiff’s counsel sought leave to amend the Claim to
plead that the defendant failed to obtain informed consent prior
to performing surgery, and as such committed battery.
Counsel for the plaintiff submitted that the court did not have
to follow Joseph because in Joseph, the claim
was brought after the expiry of the two-year limitation period under
section 4 of the Limitations Act, whereas in the present
case, Thompson sought to add a new claim to an existing action.
Secondly, Thompson's counsel submitted that the Court of Appeal
in Joseph suggested that the doctrine of special circumstances
could apply when a party seeks to amend an existing claim.
Master Glustein rejected both arguments, holding that Joseph stands
for the proposition that a new cause of action is to be governed
by its own limitation period, and if that new cause of action is
subject to the new Limitations Act, the doctrine of special
circumstances cannot apply. Thus, the first question that must be
answered when an amendment is sought is whether that amendment in
fact raises a new cause of action. If it does, then the two-year
limitation applies and, following Joseph, the doctrine
of special circumstances cannot apply.
These decisions (Joseph in particular) are important for
two reasons. Firstly, and most obvious, they are important because
they have eliminated in most circumstances the application of a
long-recognized and often crucial common law doctrine that has been
applied consistently for over 30 years. Secondly, they remind us
of the importance of communicating with all members of
the firm, including non-lawyers, regarding important limitation
periods and other changes in the law that could have an effect on
how files are managed internally.
Created: October, 2008