Important limitations case released today by OCA

St. Jean v. Cheung, 2008 ONCA 815:

[43]          While the new Limitations Act may have retrospective application in respect of purely procedural matters, extinguishing the right to pursue a claim is not purely procedural as it would alter substantive rights.  In Martin v. Perrie, [1986] 1 S.C.R. 41, at para. 17, the Supreme Court of Canada quoted with approval the following extract from the decision of the High Court of Australia in Maxwell v. Murphy (1957), 96 C.L.R. 261, at pp. 277-78:

Statutes of limitation are often classed as procedural statutes.  But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation.  Two classes of case can be considered.  An existing statute of limitation may be altered by enlarging or abridging the time within which the proceedings may be instituted.  If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute may well be classed as procedural.  Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural.  But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise.  A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by the lapse of time.  Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural.  They would affect substantive rights.  [Emphasis added.]
[44]          At p. 700 of Sullivan, these notions are succinctly summarised in the following terms:
When a new limitation of action provision comes into force, it may extend or shorten the period within which an action must be commenced.  If the provision comes into force before the period has lapsed, and if applying it would not have the effect of extinguishing the right of action, then its application to those facts is said to be purely procedural.  In such a case, for both parties, the only thing that is lost or gained is time.  However, when the effect of applying the new provision is either to extinguish an action that was still viable when the provision came into force, or to revive an action that was barred, more than time is at stake. In such a case, the provision affects the substantive rights of the parties and cannot be considered purely procedural.

James Morton
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