Invoking Rule 21 To Resolve A Limitation Issue
In Davidoff v. Sobeys Ontario, 2019 ONCA 684, the Ontario Court of Appeal formalized the requirements for a Notice of Action to bring a claim within the limitation period. The court affirmed that absent compliance with these rules, an action is improperly commenced and the defendant can bring a valid Rule 21 motion to strike the claim.
In this case, the plaintiff commenced an action against the defendant for wrongful dismissal. The parties concurred that the limitation period expired on October 6, 2017. A week prior to the expiry, the plaintiff sent a Notice of Action via mail to the defendant’s Director of Human Resources. The same letter was emailed to the defendant’s lawyer. Neither the email nor the letter were in adherence to Form 14C of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, nor was it signed and sealed by the court Registrar. The defendant brought a Rule 21 motion to strike the claim on the basis that it did not conform to the Rules. The Court of Appeal held that a Notice of Action must be compliant with the Rules, for example, a letter in place of Form 14C as required, was not amenable to the Rules. Thus, the court concluded that the Notice of Action filed by the plaintiffs did not commence the proceeding within the limitation period.
The courts have previously been hesitant to strike an action on a limitation period argument. In deliberating this issue, the court considered that the parties agreed on the date of discoverability; established the limitation period; there were no material facts in dispute and there was no risk of unfairness in striking the claim. Under the circumstances, the court decided this was an appropriate case for the limitation period to be resolved on a Rule 21 motion.