Case: Toussaint v. Canada (Attorney General), 2023 ONCA 117
Keywords: healthcare; United Nations Human Rights Committee; Limitations Act, 2002, S.O. 2002, c. 24, Sched B; Rule 21 of the Rules of Civil Procedure
The Respondent alleges that between 2009 and 2013, “at a time when she was not legally a Canadian resident, she was unlawfully excluded from health care”. (See Toussaint v. Canada (Attorney General), 2022 ONSC 4747 (CanLII) at para. 1). The Federal Court dismisses her application for judicial review; she appeals unsuccessfully to the Federal Court of Appeal, and is refused leave to appeal by the Supreme Court of Canada. (See Court of Appeal decision at para. 4).
The Respondent concurrently makes a submission to the United Nations Human Rights Committee (“UNHRC”). The UNHRC concludes Canada violated the Respondent’s rights to life and equality; directs that Canada provide “an effective remedy, including compensation and taking all steps necessary to prevent similar violations in the future” (i.e. “by taking positive steps to fix its health care legislation”). (See Court of Appeal decision at para. 5; Toussaint v. Canada (Attorney General), 2022 ONSC 4747 (CanLII) at para. 2).
Canada disagrees. The Respondent then commences an action against the federal government, seeking general and special damages in the amount of $1.2M. (See Court of Appeal decision at para. 6). Canada brings a motion to strike under Rule. 21.01 of the Rules of Civil Procedure. As noted by the Motion Judge, the Respondent’s case raises “novel questions”, including with respect to the enforcement of Canada’s international obligations, and domestic ramification for health care in Canada. (See Toussaint v. Canada (Attorney General), 2022 ONSC 4747 (CanLII) at paras. 3-4).
The Motion Judge dismisses Canada’s motion; finding it is not “plain and obvious” that the Respondent’s action is doomed to fail; that it is not statute barred as per the Limitations Act, 2002, S.O. 2002, c. 24, Sched B, and that it falls within the jurisdiction of the Ontario courts. (See Court of Appeal decision at para. 1). Canada appeals. The Court of Appeal agrees that the Motion Judge erred by declaring the Respondent’s claim was “timely, rather than simply dismissing the…motion to strike”. (See Court of Appeal decision at para. 2).
Throughout the legal process, the Respondent suffers serious and irreversible health consequences; prior to the release of the Court of Appeal decision herein, she passes away. (See Court of Appeal decision at paras. 4, 23).
The Court of Appeal determined the Motion Judge’s comments, including that Canada’s position was a “a dog whistle argument that reeks of…prejudicial stereotype” and “pejorative arguments” that he did “not propose to dignify further”, were “gratuitous”. (See Court of Appeal decision at para. 7).
With respect to the limitations issue, the Court of Appeal found the Motion Judge erred by going further than simply dismissing Canada’s motion to strike. (See Court of Appeal decision at para. 15). Importantly, the Court of Appeal decision affirms that a court should refrain from making an affirmative finding that a matter is “timely” in the context of a pre-trial motion to strike, under Rule 21.01. The reason is that “[f]actfinding is required to assess whether a claim is discovered…but factfinding is not contemplated on a pleadings motion”. (See Court of Appeal decision at para. 11).
The Court of Appeal cited several decisions in which it had previously “discouraged” the use of Rule 21.01(1)(a) to determine limitations issues. (See Court of Appeal decision at para. 11; Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 at para. 31; Kaynes v. BP p.l.c., 2021 ONCA 36 at para. 81; Clark v. Ontario (Attorney General), 2019 ONCA 311, at paras. 42-48; Brozmanova v. Tarshis, 2018 ONCA 523 at paras. 19-21; Salewski v. Lalonde, 2017 ONCA 515, at paras. 45-46, 50; and Ridel v. Goldberg, 2017 ONCA 739, at paras. 11-12).
For the Court of Appeal, the decision under appeal was “more problematic” than these prior decisions because the Motion Judge “went beyond the confines of the relief sought on the motion and made a finding against Canada that the action was not statute barred” and “[i]t is difficult to conceive of a case where it would ever be appropriate to make such a finding”. (See Court of Appeal decision at para. 12).
As noted by the Court of Appeal, the facts surrounding the limitations question are disputed – meaning the Motion Judge was simply not in a position to make “binding determinations of fact” in the context of a pleadings motion. (See Court of Appeal decision at para. 13).
Accordingly, the Court of Appeal allowed Canada’s appeal in part, which permits Canada to resume its limitations period defence. (See para. 23).
Counsel for the Appellant: David Tyndale and Asha Gafar (Justice Canada, Toronto)
Counsel for the Respondent: Andrew Dekany and James Yap (Legal Aid Ontario, Toronto)