It has been held that limitation period questions are typically not appropriate for determination under Rule 21.01. Unless there are no material facts in dispute, a limitation period issue should normally be determined after the close of pleadings (as a limitation period is a defence which should be pleaded) and by way of motion for summary judgment or trial. In Salewski v. Lalonde , 2017 ONCA 5115, the Court of Appeal for Ontario observed that as the discoverability issue is one of mixed fact and law, there may well be no circumstance “in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear that the facts are undisputed. Absent such circumstances, we are skeptical that any proposed limitation defence under the Act will involve ‘a question of law raised by a pleading’ as required under rule 21.01(1)(a).”
In , the Court of Appeal for Ontario casts doubt on whether there is any circusmtance where Rule 21.01(1)(a) is appropriate for determining a limtiations issue, except where (1) pleadings have closed and (2) the facts are undisputed:
[45] However, the basic limitation period established by the Limitations Act, 2002 is now premised on the discoverability rule. The discoverability rule raises issues of mixed fact and law: Longo v. MacLaren Art Centre, 2014 ONCA 526 … at para. 38. We therefore question whether there is now any circumstance in which a limitation issue under the Act can properly be determined under rule 21.01(1)(a) unless pleadings are closed and it is clear that facts are undisputed. Absent such circumstances, we are sceptical that any proposed limitation defence under the Act will involve “a question of law raised by a pleading” as required under rule 21.01(1)(a).
