Canada: The Limitations Act, Section 7: Are The Floodgates Opening? Landrie v. Congregation Of The Most Holy Redeemer, 2014 ONSC 4008

Last Updated: August 21 2014
Article by Kevin L. Ross

Co-author: Cale R. Sutherland (Student-at-law)

It has been said that hard facts are apt to introduce bad law. This may occur when judges are asked to exercise their discretion to provide relief to a party facing severe consequences. An example of this might be a plaintiff who faces a motion for summary judgement dismissing the claim as statute-barred. Such was the fate of Ms. Landrie[1] who sustained injuries in a slip and fall on November 19, 2008. Ms. Landrie retained counsel who commenced an action on November 22, 2010. Unfortunately, she mistakenly provided her counsel with the incorrect date of the incident.

The Action was commenced two years and 3 days after the occurrence. Ms. Landrie had therefore missed the two-year limitation period within section 4 of the Limitations Act, 20022] ("Act"), which expressly provides that no action shall be commenced after the second anniversary of the day on which the claim was discovered. Having realized their mistake, counsel amended their pleadings to include a claim that, while she was in hospital, Ms. Landrie was an "incapable person" pursuant to section 7(1) of the Act. Section 7(1) states that the limitation period does not run when the claiming party "is incapable of commencing a proceeding... because of his or her physical, mental or psychological condition."

Importantly, the operation of section 7(1) is contingent upon the reverse-onus provision within section 7(2), which requires that, "A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved (emphasis added)." Therefore, Ms. Landrie faced the burden of proving that she was entitled to have the two-year limitation period tolled by three days because she had been in hospital for roughly 15 days immediately following her fall.

Ms. Landrie's claim appeared to be in jeopardy as it was clearly brought out of time. Authorities such as the Ontario Court of Appeal's decision in Deck International Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309 indicate that the parties are expected to provide some form of medical evidence to prove incapability. However, what constitutes "proof" is within the courts' discretion, and Ms. Landrie would ultimately benefit from that discretion.

In his decision, Justice Perell stated that despite the reverse onus on the plaintiff, the burden in section 7 is, in fact, "more liberal and generous" than the repealed section 47 of the Limitation Act.[3] Section 47 required the plaintiff to be a "minor, mental defective, mental incompetent or of unsound mind" in order to toll the limitation period.  With this relaxed onus in mind, Justice Perell found that Ms. Landrie had proven that she was incapable of commencing the proceeding on time because of her physical and mental state while in the hospital.

Justice Perell then employed the recent decision in Hryniuk, (2014 SCC 7) to decide in Ms. Landrie's favour, by summary judgement. Importantly, the decision was based primarily on affidavit evidence of Ms. Landrie and neither side presented expert medical evidence. The decision is remarkable for the paucity of objective and corroborative evidence. What is prominently featured in the decision is that Ms. Landrie did require medical attention during the weeks immediately following the incident and her claim was only 3 days out of time. These facts appear to have motivated Justice Perell to exercise his discretion in her favour. Despite being the moving party, the Defence not only lost the motion for summary judgement, but is now unable to address the limitation at trial on the full evidentiary record.

It is possible that Landrie could signal a movement towards a relaxed interpretation of section 7(1)'s requirements. It is also possible that Landrie is part of a larger movement towards the utilization of summary judgement as a gatekeeping adjudicative option. However, it is more likely that the decision in Landrie was specific to its facts and their amenability to a form of "common sense justice". Regardless, defendants in personal injury cases should be aware of the potential impact of Landrie. Prudent defence counsel should ensure that they bring their best case forward when moving for summary judgement of a statute-barred claim or risk losing the ability to argue the issue at trial.


[1] Landrie v Congregation of the Most Holy Redeemer, 2014 ONSC 4008 [Landrie].

[2] S.O. 2002, c. 24, Schedule B.

[3] R.S.O. 1990, c. P.27.

Lerners Insurance Defence Reference Library

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kevin L. Ross
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions