Defense of Set-Off (Limitations)

Eftimovski v. Faris, 2014 ONSC 2476 (CanLII)

[15] The only such “conflicting decisions” suggested and relied upon by the third party, in support of its Rule 62.02(4)(a) arguments, were two decisions of the Ontario Court of Appeal; two decisions which, TSH says, were binding on Justice Rady and should have precluded at least some of her proffered reasons for dismissing the third party’s motion for summary judgment. In particular:

i. Insofar as Justice Rady felt that application of the relevant limitation period to counterclaims was an open and unsettled question, (based on her use of the definition of “originating process” set forth in the Rules of Civil Procedure to assist with interpretation of the word “proceeding” used in the Limitations Act, 2002, supra), this was said to conflict with the Court of Appeal’s decision in Giglio v. Peters, 2009 ONCA 681 (CanLII), (2009) O.J. No. 3945 (C.A.); and

ii. Justice Rady’s reference to certain circumstances of the case was said to reflect her application of the common law doctrine of “special circumstances”, which in turn was said to conflict with the Court of Appeal’s decision in Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 (CanLII), (2008) O.J. No. 2339 (C.A.), confirming that the doctrine did not survive enactment of the Limitations Act, 2002, supra.

[16] I will return to the substantive merit of those suggestions below, when considering whether the third party has satisfied the second branch of the test for granting leave to appeal, set forth in Rule 62.02(4)(b).

[37] In that regard, paragraphs 19-22 of the Court of Appeal’s Giglio decision read, in part, as follows:

The meaning of “proceeding” in s.4 of the Limitations Act, 2002, is a question of statutory interpretation. As with any question of statutory interpretation, context and legislative purpose are paramount considerations. …

Here the word “proceeding” appears in a statute that … seeks to bar stale claims. …

In the light of this context and the statute’s purpose, and in the absence of any definition of “proceeding” in the statute itself, successive panels of this court have turned to the definition of “proceeding” in the Rules of Civil Procedure. Both Feldman J.A. in Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468 (CanLII), 90 O.R. (3d) 774 (C.A.), and later Simmons J.A. in Placzek v. Green (2009), 2009 ONCA 83 (CanLII), 245 O.A.C. 220 (C.A.), have held that the word “proceeding” in s.4 of the Limitations Act has the same meaning as “proceeding” in r.1.03 of the Rules of Civil Procedure.

“Proceeding” under r.1.03 refers to the commencement of litigation either by action or application. … Thus, under r.1.03(1):

o “Proceeding” means an action or application; [and]

o “Action” means a proceeding that is not an application and includes a proceeding commenced by statement of claim, notice of action, counterclaim, cross-claim, or third or subsequent party claim. …

[Emphasis added.]

[44] First, as noted above, Justice Rady cross-referenced and incorporated, as a further independent reason for dismissing the motion for summary dismissal of the defendant’s counterclaim, her reasons and decision in relation to the pleading amendment issue. In that regard:

• As a limitation period could not bar assertion of a defence, as confirmed by authorities such as Pierce v. Canada Trustco Mortgage Co. (2005), 2005 CanLII 15706 (ON CA), 197 O.A.C. 369 (C.A.), Justice Rady properly granted leave permitting amendment of the defendant’s pleading to advance a defence of equitable set-off, and the corresponding request for an accounting to determine the merits and extent of that defence.

• No steps were taken to appeal Justice Rady’s decision permitting that amendment. Nor has there been any suggestion, (let alone a formal motion), that the defence of equitable set off is amenable to determination by way of summary judgment. The defence of equitable set off and the issues it raises, (i.e., the merits of the defendant’s claims vis-à-vis the plaintiffs), therefore now will form part of the issues for trial. To use the wording of Rule 20.04(1)(a), there apparently is no dispute that they effectively constitute “genuine issues requiring a trial with respect to a … defence”.

• The defendant’s counterclaim involves and reflects the same issues raised by the defence of equitable set off, and to me it seems somewhat axiomatic that matters already forming genuine issues requiring a trial cannot simultaneously be characterized as issues not requiring a trial. As emphasized by our Court of Appeal in Pipeline Mechanical Services Ltd. v. Metro Capital Management Inc., (2006) O.J. No. 4582 (C.A.), where there is a triable issue in relation to the matters underlying both the claims in a counterclaim and a defence of equitable set off, both should proceed to trial as far as summary judgment is concerned.

[45] Having regard to such considerations, I am far from persuaded that there is room for “very serious debate” as to the correctness of Justice Rady’s decision permitting the defendant’s counterclaim to proceed to trial on that alternate basis.