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
Upon receiving the Registrar's letter, the plaintiff's
lawyer immediately had the claim issued in person, on November 7,
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.
Originally published on Slaw.
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