Court Allows Backdating of Statement of Claim

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As you probably know, in order to sue someone, there is a limitation period, or deadline for filing a claim. What happens when you miss the deadline? The usual response is that your action will be dismissed. However, in a recent case, Dupuis v. W.O. Stinson & Sons Ltd., 2014 ONSC 4317,   the court permitted a plaintiff to backdate the issuance of a statement of claim, which was issued six days after the expiry of the limitation period. The plaintiff’s counsel had attempted to have the claim issued on the last day of the limitation period. Unfortunately, counsel did not file the materials in the manner required by the Rules of Civil Procedure, resulting in the court returning the materials back to counsel by mail. The claim was ultimately issued a few days after the limitation period had expired. What is the fair thing to do? Should the court allow the statement of claim to be backdated to the day when counsel first attempted to have the claim issued, in order to preserve the plaintiff’s right to have his day in court? Or should the court uphold the principles behind the Limitations Act of timeliness and finality?


Brief facts

This case is related to an oil spill on a residential property. The plaintiff had purchased a home, which was inspected by one defendants. In addition, the oil tank filled by another defendant. The homeowner discovered an oil spill on November 1, 2010.  See . There is no dispute that the limitation period expired on November 1, 2012.

Plaintiff’s counsel attempted to have the statement of claim issued on the last day of the limitation period. An overnight courier was used for this purpose.  It was rejected by the registrar on technical grounds:


[2]…. On October 31, 2012, the plaintiff’s counsel sent the statement of claim by overnight courier from Toronto to the Ottawa Court.  Attached to the statement of claim was a letter from the plaintiff’s counsel addressed to the Local Registrar at the Ottawa Court which advised that three copies of the claim were enclosed along with a cheque in the amount of $181.00 for filing fees.  Plaintiff’s counsel asked to be provided with a copy of the issued claim, “once same has been done”, and enclosed a stamped, self-addressed envelope for the Registrar to return the claim.  Also attached to the letter was a sticky note which stated:

The limitation period for filing these is today, November 1, 2012.       I would really appreciate if you could call me once these are issued to let me know it’s been done.


[3]               The documents were received by the Ottawa Court on November 1, 2012, at 9:06 a.m. and were opened and date stamped by the Court on November 1, 2012.  However, the Registrar did not issue the statement of claim or contact counsel.  Instead, it was mailed back to plaintiff’s counsel, along with a photocopy of Rule 4.05(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”).  Rule 4.05(1) provides that an issuing document may be issued on personal attendance in the court office by the party seeking to issue it or by someone on the party’s behalf.


Counsel did not receive the registrar’s letter until six days later. She immediately tried to rectify the situation by retaining a process server to have the claim issued. However, the claim was now issued on November 7, 2012, six days past the limitation deadline.


Court’s Decision-Plaintiff’s claim is saved

Plaintiff’s counsel brought a motion to have the claim backdated to November 1, 2012. Master McLeod granted the motion. The defendant appealed to a judge at the Superior Court. The judge dismissed the appeal.

Justice Polowin affirmed Master McLeod’s reasoning (para. 22). He acknowledged the two competing principles at play. One was the principle “that cases should be decided on their merits rather than on technical compliance with procedural rules.” (paragraph 5). Indeed, the purpose of the Rules is clearly stated in Rule 1.04, which is to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”   In other words, a plaintiff’s right to have his day in court should not be defeated by mere technicalities. On the other hand, defendants’ rights must also be considered. The purpose of the Limitations Act is protect defendants by ensuring plaintiffs pursue their action in a timely manner, and provide certainty and finality for defendants.

Justice Polowin noted that the court had jurisdiction to cure procedural errors. He acknowledged that although counsel was in error, she made good faith efforts in issuing the claim within the limitation period.   As to balancing the rights of the plaintiff with those of the defendant in this case, “Under the circumstances the plaintiff should not be put out of court and the defendant granted a windfall that it could not have known about or relied upon.” (paragraph 11)

Also of interest is the court’s comment on the obligations of court staff. It was held that court staff was not in error in this case by choosing to mail  the materials back to Plaintiff’s counsel, rather than telephoning her as she specifically requested. The court stated that “courts administration should not be expected to assume the responsibility of ensuring that documents simply delivered or left at the court house get to the right office and are issued on the right day.” (paragraph 16).

**Note** This blog post is not intended as legal advice.  For advice on how to apply court decisions to your case, please consult a lawyer.



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