Court Agrees to Backdate Claim That Was Issued Outside Limitation Period

In a recent case, the Superior Court upheld the Master’s decision to backdate a Statement of Claim that was issued after the expiry of the limitation period.

The limitation period for the plaintiff’s claim was to expire on November 1, 2012.

On October 31st the plaintiff’s lawyer sent the Statement of Claim along with the necessary filing fees by overnight courier from Toronto to the Ottawa Court. Enclosed was a note for the Registrar which advised that the limitation period for filing the claim was November 1st and stating “I would really appreciate if you could call me once these are issued to let me know it’s been done.”

The documents arrived at the court house the morning of November 1st. However, the Registrar did not issue the claim or call the plaintiff’s lawyer. Instead, they mailed the claim back and advised that the claim had to be issued in person, not via courier.

Upon receiving the Registrar’s letter, the plaintiff’s lawyer immediately had the claim issued in person, on November 7, 2012.

The plaintiff brought a motion to have the date of the claim back-dated to November 1st. The court adjourned the motion so that it could be brought on notice to the defendant and full argument could be made.

Master MacLeod granted the order to back-date the claim. In short, he found that the claim and the fee were delivered to the court office in time and that the failure to attend in person to issue the claim was an irregularity under the Rules of Civil Procedure which was capable of being cured by the court. Master MacLeod also noted that the interests of justice clearly favours having a dispute heard on its merits, and cited the lack of prejudice that the defendants would suffer.

The Superior Court dismissed the defendant’s appeal and allowed the Master’s order to stand.

For those who are interested in a discussion between the intersection of the Limitations Act, 2002 and the Rules of Civil Procedure the short decision is worth a read.

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