This recent Ontario Court of Appeal decision delved into whether a judge has the power to back-date the issuance date of a Statement of Claim. In legal parlance, this is referred to as granting an order nunc pro tunc: latin for “now for then.”
Nunc pro tunc orders are made all the time, typically to deal with some procedural or administrative irregularity, in an effort to effectively restore matters to the way things should have been, had the defect or irregularity not occurred.
Often little turns on these curative measures, but sometimes it can have a profound impact, such as backdating the issuance of a Statement of Claim that effectively eliminates a defendant’s limitation period defence.
Recall that most civil cases are governed by a two (2) year limitation period, such that if a claim is issued after two (2) years, the defendant can ask the court to dismiss the claim solely on the basis that it was brought too late (even if it was a strong claim against them). As such, backdating a claim that was issued beyond the limitation period, to an earlier point in time before the limitation period expired, can deprive the defendant of a potentially strong defence.
It was this very circumstance that was under review by the Ontario Court of Appeal in this recent decision. Through a series of oversights, a claim that was served on the defendant before the expiration of the limitation period was not actually issued until after the limitation period expired. The motion judge took into account all the circumstances, including how the mishap was innocent given that the parties were working rather collaboratively with exchanges of claims and counterclaims, waiving the timelines for delivery of pleadings, etc, and concluded that this was an appropriate circumstance to back-date the issuance of the impugned claim to the date it was delivered to the opposing party (ie: a date the preceded the expiration of the limitation period).
The defendant appealed, taking the position that it was not open to the motion judge to grant the nunc pro tunc order. The appellate court disagreed, and held that the motion judge had the power, under Rule 2.01, to make such an order. Rule 2.01 provides that failure to comply with the Rules is an irregularity and does not render a proceeding nullity, and furthermore, it provides that a court may grant relief to secure the just determination of the real matters in issue.
In the present case, since the impugned claim was served before the limitation period, and there had been an healthy dialogue between counsel over the issues well before the limitation period expired, the purpose behind the limitation period were well-preserved in this instance: namely “(1) to promote accuracy and certainty in the adjudication of claims; (2) to provide fairness to persons who might be required to defend against claims based on stale evidence; and (3) to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion” (from Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801 at page 123).
Obviously it is best to issue claims prior to the limitation period because it will always remain risky whether a court will back-date the issuance date of a Statement of Claim: but it is nonetheless good to know that the power to do so does exist, in the right circumstances, as endorsed by the Ontario Court of Appeal.
Norman Towing (7344508 Canada Inc.) v. Riordan Leasing Inc., 2024 ONCA 518
https://www.canlii.org/en/on/onca/doc/2024/2024onca518/2024onca518.html