Beyond “Exceptional Circumstances”: Raising Limitations Defences At Certification

Overview

Limitation defences are increasingly in play at certification. Recent case law shows that certification judges will engage with limitations defences where they expose fundamental deficiencies in the proposed proceeding—while reserving fact-intensive disputes for summary judgment or trial.

Many defendants have successfully raised limitations defences to limit the scope of a class action or even to defeat certification, including:

• under the cause of action criterion;
• to narrow the class definition or suitability of the class representative;
• to show that a class action is not the preferable procedure; and
• by way of summary judgment application.

Applying Limitations Defences to the Cause of Action and Class Representative Criteria

Grozelle v Corby Spirit and Wine Limited, 2023 ONSC 7212 (“Corby”) confirms that limitations defences can play a meaningful role at certification where the deficiency is apparent on the pleadings and certification record.

Corby involved a proposed class action alleging that emissions from whisky‑aging warehouses caused the growth of “whiskey fungus”, damaging nearby properties. The defendant raised a limitations defence in its statement of defence.

A central issue was discoverability. The Court confirmed that, when a plaintiff relies on the discoverability principle to argue that a limitations period has not yet expired, it must be pleaded, with supporting facts.¹

The plaintiffs did not plead discoverability, but argued at certification that they did not know about their claims until the recent publication of a scientific paper. However, the evidence confirmed that, for at least a decade prior to the issuance of the statement of claim, the plaintiffs believed there was a connection between the warehouse’s emissions and the black mold-like substance. ²

The Court denied certification on various grounds, including because: (a) the pleading did not disclose a cause of action; and (b) the proposed representative plaintiffs did not have an interest in the class proceeding because their claims were statute-barred. The limitations defence informed both conclusions. 

Applying Limitations Defences to the Identifiable Class Criterion

Fantl v Transamerica Life Canada, 2013 ONSC 2298 (“Fantl”), rev’d on other grounds 2016 ONCA 633, shows that certification judges will narrow the class when it is clear that certain claims are statute-barred.

In Fantl, the proposed class action concerned an investment option offered through Transamerica insurance contracts. Certain claims were governed by provincial insurance statutes with specific limitations periods.

Justice Perell addressed the limitations issue in the context of the identifiable class requirement. The evidence demonstrated that the proposed class definition swept in thousands of policyholders whose claims were already out of time under the statutory schemes.

Justice Perell granted certification, but narrowed the class definition to exclude policyholders whose claims were clearly statute-barred. He confirmed, however, that where the limitations assessment depends on a factual inquiry into when the class members knew or ought to have known of their claims, limitations should not be resolved at certification.³

Applying Limitations Defences to the Preferable Procedure Criterion

In Reichert v Canada (Attorney General), 2026 BCCA 9 (“Reichert”), the Court of Appeal for British Columbia confirmed that courts can consider the applicable limitation period in deciding whether a class action is the preferable procedure. See our previous blog post.

The plaintiffs argued on appeal that limitations issues could only be considered at certification in “exceptional circumstances.” The Court acknowledged that previous appellate decisions had endorsed such a principle.⁴ In those cases, however, the limitations defence was raised with respect to the cause of action criterion and the limitations defence was “bound up in the facts.”

Those factors were not present in Reichert. The Court confirmed that the “exceptional circumstances” requirement did not apply with equal force to all certification criteria. Under the comparative preferability analysis, the certification judge may consider whether limitations issues make a class proceeding more or less advantageous than the alternatives.⁵ There was precedent for this approach.⁶

Applying that approach, the Court concluded that a class proceeding was not the preferable procedure in light of, among other things, the potential limitations defence and the availability of alternative procedures. The Court upheld the order dismissing certification.

Determining Limitations Defences by Summary Judgement Before Certification

In WP v Alberta, 2014 ABCA 404, the Court of Appeal of Alberta confirmed that class proceedings do not insulate claims from early disposition on limitations grounds. The Court upheld a summary judgment decision dismissing the proposed class action as statute‑barredbefore certification.

On appeal, the plaintiffs argued that the certification motion should have been decided first and that limitations issues should be determined at trial. The Court rejected that position. It confirmed that nothing in class proceedings legislation prevents a court from hearing a dispositive motion, such as summary judgment, before certification where it may resolve the litigation efficiently.⁷

The Court emphasized that a class proceeding is a procedural vehicle, not a source of substantive rights. Where a proposed representative plaintiff’s claim is clearly time‑barred, there is no justification for consuming scarce judicial resources.⁸

Key Takeaways

• Limitation issues are no longer categorically off-limits at certification. However, certification is not a merits determination, and courts remain hesitant to determine limitations defences at certification where factual disputes predominate.
• Depending on the context, limitations defences may be relevant to the cause of action, class definition, preferable procedure, or representative plaintiff criteria.
• Defendants should consider raising limitations defences strategically by filing a statement of defence and pleading limitations before certification, or bringing a summary dismissal before or after certification.

Footnotes

1 Grozelle v Corby Spirit and Wine Limited, 2023 ONSC 7212 at para 42 (“Corby”).

2 Corby at para 96.

3 Fantl v Transamerica Life Canada, 2013 ONSC 2298 at para 168, rev’d on other grounds 2016 ONCA 633.

4 See e.g. Godfrey v Sony Corporation,2017 BCCA 302 at para 67, aff’d 2019 SCC 42; Bruno v Samson Cree Nation, 2021 ABCA 381 at paras 75-76.

5 Reichert v Canada (Attorney General), 2026 BCCA 9 at para 50.

6 See e.g. Lewis v West Jet, 2022 BCCA 145 at para 129; Ross v Canada (Attorney General), 2018 SKCA 12 at para 74.

7 WP v Alberta, 2014 ABCA 404 at para 20 (“WP”), leave to appeal to SCC dismissed (No. 36285).

8 WP at para 22

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