Joseph v. Paramount Can.'s Wonderland

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Feldman, MacFarland and Watt, JJ.A.
• Neutral Citation: 2008 ONCA 469
• Citation: 2008 ONCA 469,(2008), 241 O.A.C. 29 (CA),90 OR (3d) 401,294 DLR (4th) 141,[2008] CarswellOnt 349,[2008] OJ No 2339 (QL),166 ACWS (3d) 762,241 OAC 29,56 CPC (6th) 14,241 O.A.C. 29,(2008), 241 OAC 29 (CA),90 O.R. (3d) 401,[2008] O.J. No 2339 (QL),294 D.L.R. (4th) 141
• Date: 07 February 2008

Joseph v. Paramount Can.'s Wonderland (2008), 241 O.A.C. 29 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.064

Innez Joseph (plaintiff/respondent) v. Paramount Canada's Wonderland (defendant/appellant)

(C47671; 2008 ONCA 469)

Indexed As: Joseph v. Paramount Canada's Wonderland

Ontario Court of Appeal

Feldman, MacFarland and Watt, JJ.A.

June 12, 2008.

Summary:

The plaintiff was injured at the defendant's amusement park. Through inadvertence, the plaintiff's statement of claim against the defendant was not issued until after the expiry of the applicable two-year limitation provided by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The defendant moved, under rule 21.01(1) of the Rules of Civil Procedure (Ont.), to determine, as a question of law, whether the action was statute barred.

The Ontario Superior Court, in a decision reported [2007] O.T.C. Uned..K50, ruled that it had discretion under the doctrine of special circumstances to extend the time to commence an action where no action had commenced within the limitation period. The defendant appealed.

The Ontario Court of Appeal allowed the appeal. The doctrine of special circumstances did not apply. The action was statute barred.

Limitation of Actions - Topic 9616

Enlargement of time period - Application for - Special circumstances - The plaintiff was injured at the defendant's amusement park - Through inadvertence, the plaintiff's statement of claim against the defendant was not issued until after the expiry of the applicable two-year limitation provided by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B - This raised the issue of whether the doctrine of special circumstances applied to authorize an extension of the time to commence an action - Section 20 of the Act provided as follows: "This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act" - The Ontario Court of Appeal held that the doctrine of special circumstances did not apply - The requirement in s. 20 that the extension must be "by or under another Act" clearly precluded any extension that could be granted at common law as opposed to statute - See paragraphs 1 to 29.

Cases Noticed:

Meady et al. v. Greyhound Canada Transportation Corp. et al. (2008), 240 O.A.C. 188 (C.A.), refd to. [para. 1].

St. Denis v. TD Insurance Home and Auto Liberty Insurance Co. of Canada, [2005] O.T.C. 924; 80 O.R.(3d) 76 (Sup. Ct.), refd to. [para. 6, footnote 1].

Doyley v. York Condominium Corp. No. 478 et al., [2006] O.T.C. 828; 82 O.R.(3d) 629 (Sup. Ct.), refd to. [para. 6, footnote 1].

Munshaw v. Economical Mutual Insurance Co. et al., [2007] O.T.C. Uned. 265; 84 O.R.(3d) 785 (Sup. Ct.), refd to. [para. 6, footnote 1].

York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al. (2007), 220 O.A.C. 311; 84 O.R.(3d) 414 (C.A.), consd. [para. 8].

Basarsky v. Quinlan, [1972] S.C.R. 380, consd. [para. 10].

Weldon v. Neal (1887), 19 Q.B.D. 394, refd to. [para. 10].

Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 152 O.A.C. 201; 56 O.R.(3d) 768 (C.A.), refd to. [para. 12].

Guillemette v. Doucet (2007), 230 O.A.C. 202; 88 O.R.(3d) 90 (C.A.), consd. [para. 18].

Iroquois Falls Power Corp. v. Jacobs Canada Inc. et al. (2008), 235 O.A.C. 260; 2008 ONCA 320, consd. [para. 20, footnote 2].

Statutes Noticed:

Limitations Act, S.O. 2002, c. 24, Schedule B, sect. 4 [para. 8]; sect. 20 [para. 9].

Counsel:

Todd J. McCarthy and Colleen E. Arsenault, for the appellant;

Tony Afecto, for the respondent.

This appeal was heard on February 7, 2008, by Feldman, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Feldman, J.A., and released on June 12, 2008.