Zhang v Wehner, 2023 SKCA 22

Court of Appeal for Saskatchewan Docket: CACV3929 Citation: Zhang v Wehner , 2023 SKCA 22 Date: 2023-02-08 Between: Ningnan Zhang Appellant (Respondent/Plaintiff) And Shanyse Wehner, Deborah Wehner, and Keith Wehner Respondents (Applicants/Defendants) Before: Leurer, Tholl and Drennan JJ.A. Disposition: Appeal allowed; new evidence application dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr.

Justice Leurer The Honourable Madam Justice Drennan On appeal from: QBG 678 of 2021 (SK), Saskatoon Appeal heard: January 12, 2023 Counsel: Ningnan Zhang on his own behalf The Wehners on their own behalf Tholl J.A. I. INTRODUCTION [ 1 ] Ningnan Zhang filed a statement of claim in the Court of Queen’s Bench alleging, inter alia , that Shanyse Wehner and Deborah Wehner had restrained him while Keith Wehner physically assaulted and battered him. It was issued more than two years after the date on which the events were alleged to have occurred.

The claim was dismissed as against all three of the Wehners on the basis that the two-year general limitation period set out in s. 5 of The Limitations Act , SS 2004, c L-16.1 , had expired before it was issued: Zhang v Wehner (3 November 2021) Saskatoon, QBG 678 of 2021 (Sask) [ Chambers Decision ]. [ 2 ] Ningnan appeals from that decision, asserting that the Chambers judge erred by failing to consider s. 16 of The Limitations Act . He argues that, by operation of s. 16 , no limitation period applies to his claim in relation to the three respondents.

He further asserts that he was unfamiliar with court processes and that the COVID-19 pandemic caused delays that should have been taken into account. Ningnan has also filed an application seeking the admission of new evidence in the form of his own short affidavit. [ 3 ] For the reasons that follow, the appeal is allowed. The Chambers Decision , which dismissed the claim as against Shanyse, Deborah, and Keith, on the basis of Rule 7-9(2)(

e) of The Queen’s Bench Rules and s. 5 of The Limitations Act , must be set aside and the matter remitted to the Court of King’s Bench. The application to admit new evidence is dismissed. II. BACKGROUND [ 4 ] The following background information is taken from the allegations set out in the statement of claim and the affidavits filed by the parties. As a result, this

section of these reasons mainly contains a recitation of allegations as opposed to facts that have been proven. Given the overlap of the surnames for the three respondents, I have used the parties’ first names in this judgment, with no disrespect intended. [ 5 ] An incident took place on May 28, 2019, for which Ningnan wishes to sue several defendants. Ningnan was living with Shanyse and their two children at the time of the incident.

In general, the statement of claim alleges that Keith struck Ningnan in the face numerous times while Shanyse and Deborah held him by the arms, causing him to suffer bleeding, a broken nose, and bruising to the face and arms. [ 6 ] Ningnan attempted to have a statement of claim issued on May 27, 2021, believing that a two-year limitation period applied and knowing that this was the last day before the passage of two years after the incident.

His claim was submitted on May 27, 2021, but it was rejected by the local registrar on May 28, 2021, because it failed to name any defendants and the required fee was not included. He resubmitted his claim on June 24, 2021, and it issued. He further amended the statement of claim on August 31, 2021. In it, he seeks numerous remedies, including damages from each of the three respondents for injuries allegedly caused to him. [ 7 ] Ningnan also sued the Saskatoon Police Service and an individual officer who responded to the incident, but that portion of the claim is not relevant to this appeal. III.

DECISION IN THE COURT OF QUEEN’S BENCH [ 8 ] The three respondents jointly applied under Rule 7-9 of The Queen’s Bench Rules to strike the claim in its entirety. The

relevant portions of that Rule are as follows: Striking out a pleading or other document, etc. in certain circumstances 7-9

(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; … (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; … (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [ 9 ] In the respondents’ amended Queen’s Bench application, one of the grounds listed for striking the claim was the fact that the statement of claim was issued beyond the limitation period set out in The Limitations Act .

The other two grounds alleged that the claim disclosed no reasonable cause of action and was scandalous, frivolous, or vexatious. [ 10 ] The Chambers judge set out the background to the matter and then indicated that, because the statement of claim had been issued more than two years after Ningnan’s cause of action arose, it was plain and obvious that it would fail, and, therefore, the claim should be dismissed under Rule 7-9(2)(

b) as against the three respondents. She also held that, because the limitations issue was dispositive, she would not consider the other grounds upon which the claim was sought to be struck. The core of her reasons for ordering that the claim be dismissed are as follows: [10] As stated in Yashcheshen v Canada (Attorney General) , 2020 SKQB 188 : [29] It is accepted that Rule 7-9(2)(

b) may be invoked to strike an impugned statement of claim issued after the expiry of the relevant limitation period. See especially: GHC Swift Current Realty Inc. v BACZ Engineering

(2004) Ltd. , 2020 SKQB 161 at para 17 [ BACZ Engineering ]; and Jardine v Saskatoon Police Service , 2017 SKQB 217 at para 43 [ Jardine ]. [ 11 ] In my view, the plaintiff must bear the responsibility for knowingly choosing to wait until the last day before the expiry of the limitation period on which to attempt to file his deficient statement of claim. This seems exceptionally so when considered in the context of the uncertainty of a pandemic although I take judicial notice that this court remained open with modified options for filing of documents.

Further, the deficiencies in not listing the defendants on the face of the statement of claim or paying the required fee are solely attributable to the plaintiff. [ 12 ] The plaintiffs own pleadings confirm that the two-year limitation period expired prior to issuance of the statement of claim. Consequently, it is plain, obvious, and beyond reasonable doubt the claims advanced in the pleadings cannot and would not succeed at trial. The impugned pleading is unquestionably doomed to fail for this reason. IV.

ANALYSIS [11] The standard of review applicable to this appeal was set out by Whitmore J.A. in Walker v Mitchell , 2020 SKCA 127 , [2021] 4 WWR 555: [16] While the decision of the Chambers judge striking the appellant’s statement of claim is a discretionary decision, the question of whether the Chambers judge erred in interpreting Rule 7-9(2)(

e) in a way that allowed him to strike the appellant’s statement of claim as an abuse of process is a question of law and attracts a correctness standard of review: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235. [12] The statement of claim alleges that Shanyse and Deborah restrained Ningnan to assist Keith in injuring Ningnan and, additionally, that the restraint itself caused bruises. If proven, these actions would constitute an assault and battery, subject to any defences that might be raised.

In most circumstances, an action for damages on this basis must be commenced within two years from the day on which the claim is discovered ( vis s. 5 of The Limitations Act ). Since, by his own account, Ningnan was aware of the alleged assault and battery on the day it occurred, this means that, unless an exception to the operation of the usual rule applies, his claim is out of time. This was the essence of the Chambers judge’s ruling. [ 13 ] Ningnan asserts, however, the Chambers judge failed to recognize that an exception to the usual rule was at play in this case.

Specifically, he alleges that she erred by failing to take s. 16 of The Limitations Act into account. The relevant portions of that

section are as follows: Assaults and sexual assaults

(1) There is no limitation period with respect to a claim in the nature of trespass to the person, assault or battery if: (

a) the claim is based on misconduct of a sexual nature; or (

b) at the time of the injury on which the claim is based: (

i) one of the parties who caused the injury was living with the claimant in an intimate and personal relationship; or (ii) the claimant was in a relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. [ 14 ] Section 16(1)(

b) describes two separate situations when no limitation period applies: one where “one of the parties who caused the injury was living with the claimant in an intimate and personal relationship” (s. 16(1)(b)(i)), the other when “the claimant was in a relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury” (s. 16(1)(b)(ii)). Ningnan says that both exceptions are applicable to his case.

However, it is only necessary for one of them to exist for there to be “no limitation period with respect to a claim in the nature of trespass to the person, assault or battery” (s. 16(1)). [ 15 ] Turning first to the claim against Shanyse, I note that while certain facts of this matter are heavily in dispute, several key ones are not. The respondents describe the May 28, 2019, incident very differently than Ningnan does. However, an application to strike a claim under Rule 7-9(2)(

e) as an abuse of process based on the expiry of a limitation period is not the place to resolve controversy as to the facts. Rather, it must be plain and obvious that a claim is destined to fail before it can be struck or dismissed at the pleadings stage as an abuse of process: Merchant Law Group LLP v Slusar , 2022 SKCA 75 at para 42 , leave to appeal to SCC requested, 40377. [ 16 ] Here, Ningnan averred in his affidavit that he was living with Shanyse, along with their two children, at the time of the incident. He also asserted that he was in a relationship of emotional and financial dependency.

In their September 22, 2021, statement of defence, the respondents admitted the following: “On May 28, 2019, the Plaintiff, Ningnan Zhang, was at home while Shanyse Wehner was at work. They were in a relationship at this time and lived together. They have two children together who were in his care that day while Shanyse was at work”. [ 17 ] Based on the statement of claim, and the respondents’ admissions, it is not plain and obvious that the claim was out of time as against Shanyse.

To the contrary, as already noted, she admits to having lived with Ningnan in an intimate and personal relationship at the time of the incident, rendering s. 16(1)(b)(

i) applicable. Based on Ningnan’s evidence, it also cannot be said that it is plain and obvious that he and Shanyse were not in a relationship of financial and emotional dependency, rendering s. 16(1)(b)(ii) applicable. If these facts are proven, there is no limitation period for the assault and battery alleged to have been perpetrated by Shanyse on Ningnan, any more than there would be in connection with the allegations that Shanyse brought forward in the context of this appeal.

Shanyse’s allegations, even if true, might be fuel for a claim or counterclaim by her, but they do not bear on the issue of whether Ningnan’s claim should be struck or dismissed as being out of time. [ 18 ] Bringing all of this together, the Chambers judge erred by failing to consider the application of s. 16(1) (

b) of The Limitations Act . As a result, the dismissal of the claim as against Shanyse must be set aside. To be clear about this, once all the facts are ascertained, the claim might still be dismissed at a later stage in the litigation based on a limitation period; however, at this point, it is not plain and obvious that it can be dismissed or struck under s. 5 and s. 19 of The Limitations Act and Rule 7-9(2)(e). [ 19 ] The more difficult interpretive exercise arises in the context of whether s. 16(1) (

b) of The Limitations Act has the effect of removing the limitation period in relation to Deborah and Keith. In this regard, while Ningnan attempted to introduce as evidence into this appeal an affidavit intending to demonstrate that, for one brief period in 2016, he and Shanyse lived with Deborah and Keith, there is no allegation or evidence that at the time of the alleged assault and battery he was living with them in an intimate and personal relationship ( s. 16(1) (b)(i)) or in a relationship of financial, emotional, physical, or other dependency with them ( s. 16(1) (b)(ii)). [ 20 ] However, s. 16(1)(

b) goes further than simply eliminating limitation periods for claims against persons who were in the described relationships with the plaintiff at the time of the injury. Each of the subsections contains the phrase one of the parties who caused the injury when it describes the relationships. On the surface, the plain and ordinary meaning of this phrase appears to only require that a single defendant who is alleged to have caused the injury to have been in such a prescribed relationship for the s. 5 general limitation period not to apply to a claim against any other defendant who also caused the injury.

This issue requires further analysis. [ 21 ] In B.H. v Dattani , 2010 SKCA 1 , 315 DLR (4th) 705 [ Dattani ], Richards J.A., as he then was, noted that s. 16 of The Limitations Act applies in two different types of situations: [43] … It is important to recognize that s. 16 applies in two separate circumstances: (

a) if there is a claim based on misconduct of a sexual nature, and (

b) if, at the time of the injury in question, one of the parties who caused the injury was living with the claimant in an intimate personal relationship or, alternatively, if the claimant was in a relationship of dependency with one of the parties who caused the injury. The latter situation need not involve misconduct of a sexual nature.

It is sufficient if the claim in question is in the nature of trespass to the person, assault or battery. [ 22 ] Other than general commentary, such as that found in Dattani , I am unaware of any cases that have interpreted the aspect of s. 16 of The Limitations Act that is engaged in this appeal.

Likewise, I am unaware of any interpretative jurisprudence on this point from British Columbia, Nova Scotia, or the Northwest Territories, which have similar sections in their limitations legislation. [ 23 ] The abolition of limitation periods for claims involving sexual misconduct and on claims for other physical abuse by a person in a prescribed relationship was introduced in Saskatchewan in 1993 through The Limitation of Actions Amendment Act, 1993 , SS 1993, c 9 , s 2(3).

This amendment inserted, among other things, s. 3.1 and s. 3.2 into The Limitations of Actions Act , RSS 1978, c L-15 , as repealed by The Limitations Act on May 1, 2005. These amendments contained substantially the same wording as s. 16 of The Limitations Act . I am similarly unaware of any case law interpreting the implicated feature of the identical wording in this now repealed Act. As such, the meaning of the language in question from s. 16(1)(

b) must be determined in a fresh analysis. [ 24 ] When interpreting legislation, the starting point is the principles of statutory

interpretation codified in s. 2 - 10 of The Legislation

Act, SS 2019, c L-10.2. The words of

an Act are to be “read in their entire context, and in their grammatical and ordinary sense,harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature” (s. 2-10(1)). The Court is to construeevery enactment as being remedial and to give it “the fair, large and liberal

interpretation that best ensures the attainment of its objects”(s. 2-10(2)). [25] The method to be used in statutory

interpretation was summarized in Regina Bypass Design Builders v Supreme Steel LP, 2021SKCA 82. I quote from the majority decision in that judgment at length because it fully captures the interpretative issues to be consideredin the matter at hand: [23] The proper approach to any issue of statutory

interpretation is the so called modern principle articulated in Rizzo & Rizzo Shoes Ltd.,(Re), (SCC), [1998] 1 SCR 27 [Rizzo Shoes], which “recognizes that statutory

interpretation cannot be founded on thewording of the legislation alone” (at para 21). … … [25] The language of the statutory provision in question is always the starting point, but not the end point, of an exercise in

interpretation.As noted in Hess v Thomas Estate, 2019 SKCA 26, 433 DLR (4th) 60 [Hess]: [50] The modern principle and s. 10 [now s. 2-10 of The Legislation Act] demand a contextual and purposive approach. However, thatdoes not mean the court can ignore the ordinary meaning of the words chosen by the legislature. As noted in Ruth Sullivan, Sullivan onthe Construction of Statutes, 6th ed, (Markham, Ont: LexisNexis, 2014) at 29 [Sullivan]: [I]nterpretation properly begins with the ordinary meaning — with reading words in their grammatical and ordinary sense — but does notstop there.

Interpreters are obliged to consider the total context of the words to be interpreted in every case, no matter how plain thosewords may seem upon initial reading. [51] The ordinary meaning prevails unless there is a reason to reject it based on contextual considerations. Such considerations – one ofwhich is the avoidance of absurdities – may result in the adoption of an

interpretation that differs from the ordinary meaning, but only ifthat

interpretation is plausible (Sullivan at 28–29). The plausible meaning rule requires that the

interpretation is one that the words of thetext can reasonably bear (Sullivan at 191). As LeBel J. said in Re: Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38,[2012] 2 SCR 376: “Although statutes may be interpreted purposively, the

interpretation must nevertheless be consistent with the wordschosen by Parliament” (at para 33). [26] In Ballantyne [2015 SKCA 38], Ryan-Froslie J.A., also citing Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed,(Markham, Ont: LexisNexis, 2014) [Sullivan], wrote: [20] … … 2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations includingpurpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities tobe avoided and the like. 3. … the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided the

interpretation adopted isplausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [27] The modern principle emphasizes the importance of purposive analysis in statutory

interpretation. All legislation is presumed to havea purpose which courts should strive to discover and give effect to through the interpretive process. Legislative purpose must be taken intoaccount at every stage of the

interpretation exercise and, so far as the language of the text permits,

interpretations that are consistent withor promote legislative purpose should be adopted, while those that defeat or undermine legislative purpose should be avoided (Sullivan at§9.3; Farm Credit Canada v Gustafson, 2021 SKCA 38 at para 58). [28] Context must also be taken into account. As Sullivan observes, at §2.19, “in hard cases the contextual factors point in differentdirections” and “[i]n such cases, reading the text harmoniously with the scheme and object of the Act and the intention of the legislaturerequires a balancing act”.

All of this means that in some instances, the plain meaning of the words used will receive greater weight in theanalysis and, in other cases, less. As Sullivan describes, at §2.37: The factors that justify outcomes in statutory

interpretation are multiple, involving inferences about meaning and intention derived fromthe text, non-textual evidence of legislative intent, specialized knowledge, “common sense” and legal norms. These factors interact incomplex ways.

It is never enough to say the words made me do it. [26] The underlying purpose or rationale of limitation periods in general, and The Limitations Act specifically, is to provide forcertainty and repose for potential defendants, relieve parties from the adverse consequences of evidentiary issues that can arise as a resultof the passage of time, and to encourage diligence on the part of claimants: M.(K.) v M.(H.), (SCC), [1992] 3 SCR 6[M.K.] at 29–30, and Josvanger v Folk, 2005 SKCA 138 at paras 20–22, 275 Sask R

Section 16 of The Limitations Act creates anexclusion that stands out from this overall purpose. [27] Some understanding of the purpose of s. 16, within the broader purpose of The Limitations Act as a whole, can be found in theDebates and Proceedings of the Legislative Assembly of Saskatchewan (Hansard), commentary by the Uniform Law Conference ofCanada [ULCC], and the difficult circumstances faced by the persons that this

section is meant to benefit. As noted above, the equivalentprovisions in the former limitations legislation in Saskatchewan, s. 3.1 and s. 3.2 of The Limitations of Actions Act, contained substantiallyidentical wording to s. 16 of The Limitations Act. When the amendments that inserted s. 3.1 and s. 3.2 into the now repealed Act weredebated in the Legislature in 1993, the Minister of Justice said the following (Saskatchewan, Legislative Assembly, Debates andProceedings (Hansard), 22nd Leg, 3rd Sess (11 March 1993) at 256 (Mr. Mitchell)):

There will be no limitation period for claims for damages arising from non-sexual assaults occurring within an intimate relationship or a relationship of dependency. This will be particularly relevant to cases of child abuse, spousal abuse, elder abuse, and abuse by someone in a position of authority like a teacher, doctor, or even a member of the clergy. In a well-publicized decision in October of 1992 [i.e., M.(K . ) ], the Supreme Court of Canada dealt with the application of the general two- year limitation period to a case of incest.

It held that in cases of incest the limitation period would not start to run until the victim was reasonably capable of discovering both the wrongful nature of the assailant’s acts and the connection between those acts and the victim’s injuries or problems. They stated, that is the Supreme Court stated, that there would be a presumption that this would happen some time during the therapy. The court however urged legislators to reform this area of the law and commented favourably on proposals in Ontario and in British Columbia to abolish limitation periods in certain cases of sexual assault.

That led to our consideration of the matter and to the introduction of this Bill before this Assembly. Mr. Speaker, I’m confident that the amendments proposed today will empower many victims of sexual assault and spousal abuse in particular to take action to hold their assailants responsible for the damage inflicted on them. … Under the present law, they have to commence these actions within a period of two years from the date on which they become adult — 2 years from their 18th birthday. Which means they’ve got to start the action by the time they’re 20. Well if they haven’t taken therapy by that time, Mr.

Speaker, they don’t even know they have an action. And so they may be late in their 20’s or even in their 30’s or 40’s before therapy brings to their mind the real problem; the real cause for all the problems that they’re having.

And this Bill will enable them to take a civil action against the perpetrators of the assault after it has come to their attention. [28] In 2004, when the current version of The Limitations Act was debated in the Legislature, the Minister of Justice stated the following with respect to victims of sexual and non-sexual assault and the limitation period that applies to them (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) , 25th Leg, 1st Sess (17 May 2004) at 1140 (Mr.

Quennell)): The Act maintains the current rule that there is no limitation period applicable for proceedings arising from sexual assault or for other assaults where the plaintiff and defendant were living in an intimate relationship or the parties were in a dependent relationship. Again this recognizes that vulnerable persons should be not be placed at disadvantage in pursuing their claims; indeed instead their special circumstances should be recognized. [ 29 ] The wording of s. 16(1) of The Limitations Act is very similar to that of s. 9(1) of the Uniform Limitations Act provided by the ULCC.

The phrase in question – one of the parties who caused the injury – is identical. In the commentary to that section, the ULCC observed as follows (at 7): Comment: This

section provides that there is no limitation period for claims for damages arising from sexual misconduct such as incest. Also, there is no limitation period for claims arising from non-sexual assaults occurring within an intimate relationship or a relationship of dependency. This is particularly relevant to cases of child abuse, spousal abuse, elder abuse and abuse by someone such as a teacher, doctor or member of the clergy where a relationship of dependency exists. [ 30 ] When s. 16 is read in the context of The Limitations Act as a whole, and considering these passages, it is possible to discern its purpose.

It is to provide particularly vulnerable plaintiffs with an exception to the general limitation period that would otherwise bar claims based on sexual misconduct or claims for other types of physical abuse, which occurred in certain types of relationships.

It provides relief against the harsh and arbitrary consequences of the standard limitation period for a class of plaintiffs who often face significant disadvantages and barriers to expeditiously bringing such claims. [ 31 ] As can be seen from these excerpts, none of these extrinsic interpretative aids directly discuss the issue in question or indicate that the category of persons who do not benefit from the standard limitation period has been expanded beyond that of the people who were in the described relationship with the plaintiff.

They also do not discuss limiting the class of defendants against whom a plaintiff can raise s. 16(1) (

b) of The Limitations Act . Yet, none of these external sources suggest that the exception should be interpreted in a manner narrower than the plain and ordinary meaning of the words of s. 16(1) (b). Overall, this material provides support for the proposition that the Legislature intended to craft an exception to the general limitation period for vulnerable persons who are intentionally injured in certain types of relationships. This does not support a narrow

interpretation to the phrase in question in a manner that would restrict such plaintiffs’ rights. [ 32 ] It appears to me that s. 16(1) (

b) is primarily aimed at removing the time limit in which to sue for physical abuse by a spouse or parent, although it also applies in other types of dependent relationships. The

section allows victims of domestic abuse to seek legal redress against their abusers, without reference to the passage of time.

As noted by La Forest J. in M.(K.) , in the context of a claim regarding incest, there is no societal benefit in repose for such a perpetrator (at 29): While there are instances where the public interest is served by granting repose to certain classes of defendants, for example the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions.

The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose. [ 33 ] Considering all of this, I am left to conclude that the Legislature intended that persons who participated in violence such as is alleged in the matter at hand would not benefit from limitation periods. If it had wanted to restrict the application of this exception to only the defendant who was in the described relationship with the plaintiff, it could have easily done so.

Instead, it chose to use, in both provisions, the phrase one of the parties who caused the injury . In my view, this choice of broader language, in the context of the precarious situation faced by vulnerable victims of abuse and the purpose of s. 16 of The Limitations Act , was meant to expand the class of persons to whom the exception applies and, at a minimum, to remove the benefit of a limitation period for any party who directly participated in the actual perpetration of such violence. This fits well with the overall purpose of s. 16 .

[ 34 ] It can take a significant amount of time for a victim to extricate themself from an abusive relationship and to regain the wherewithal to seek redress for the violence that was inflicted upon them. If such a person, because of their vulnerable position, is not expected to bring a claim for assault and battery against their former spouse within two years, then it makes sense that the exception would also apply to encompass other parties who directly participated in the same violent acts.

It would run counter to the purpose of s. 16 to find that a victim of domestic abuse should have unlimited time in which to sue their abusive former spouse, but must adhere to strict time limits with regard to other perpetrators who directly participated in the same acts of abuse. The barriers faced by such a plaintiff are not qualitatively different in relation to the two different types of defendants. [ 35 ] I wish to make clear the limits to the ruling in this case.

For the purposes of this judgment, it is sufficient to conclude that, when a defendant actively participates in a joint physical attack on a plaintiff, at a time when the plaintiff is in a relationship with one of the other defendants as described in s. 16(1) (b)(

i) or s. 16(1) (b)(ii), and the physical encounter causes the injuries that are the subject of the claim, there is no limitation period applicable to a claim for trespass to the person, assault, or battery as against the defendants who acted in concert. I would leave to another day any question about the application of s. 16(1) (

b) in other circumstances that might arise in future cases. [ 36 ] This brings me back to the matter at hand. On the date of the incident, Shanyse, who is one of the parties, is admitted by the respondents to have been in a relationship with Ningnan that fits into the requirements of s. 16(1) (b)(

i) of The Limitations Act . Section 16(1) (b)(ii) may also apply. The statement of claim alleges that Shanyse, Deborah, and Keith jointly assaulted and battered Ningnan and that those actions caused the injuries that form the basis of the claim. As such, it is not plain and obvious that s. 16(1) (

b) does not apply, and I accordingly must find that the Chambers judge also erred in striking the statement of claim against Deborah and Keith. When the facts of this matter are ultimately determined on the basis of evidence, it might be found that s. 16(1) (

b) does not apply in the circumstances of the claim against Deborah and Keith. However, such a determination is beyond the scope of this judgment. [ 37 ] Lastly, while it is not strictly necessary, I will address Ningnan’s assertions that delays arising out of his unfamiliarity with the process to file a statement of claim and difficulties caused by the COVID-19 pandemic should have been accounted for by the Chambers judge.

Subject only to specific exceptions, limitation periods are firm statutory bars to the successful prosecution of a claim, regardless of the level of sophistication of a plaintiff or the circumstances affecting the world at large.

The assertion that the limitation period could be extended because of Ningnan’s confusion about the process or the problems caused by the pandemic cannot be given effect. [ 38 ] Based on my conclusion on this issue, it is unnecessary for me to rule on Ningnan’s other arguments. [ 39 ] Because this appeal can be decided without reference to the new evidence that Ningnan sought to introduce, I find that evidence cannot affect its outcome.

For this reason, and because, in any event, the evidence could have been adduced in Chambers with reasonable diligence, the application to admit it must be dismissed: Barendregt v Grebliunas , 2022 SCC 22 at para 29 , 469 DLR (4th) 1. With this application dismissed, the affidavit filed by Shanyse in response to Ningnan’s new evidence application has no relevance to the narrow issues that remain in dispute in this appeal. As such, while it is accepted for filing, in order to preserve the record, her affidavit will not be further considered. V. CONCLUSION [ 40 ] The appeal is allowed.

The order dismissing the claim as against Shanyse Wehner, Deborah Wehner, and Keith Wehner is set aside.

The matter is remitted to the Court of King’s Bench to consider whether the claim as against any of the three respondents should be struck on any of the other grounds as set out in the amended notice of application, dated September 27, 2021, and filed on September 28, 2021. [ 41 ] The application to adduce new evidence is dismissed. [ 42 ] The costs in the Court of Queen’s Bench application, for the application to adduce new evidence in this Court, and for the appeal shall be in the cause. [ 43 ] Finally, given that all the parties to this appeal are self-represented, I wish to be clear that this judgment does not speak to the merits of Ningnan’s claim against the respondents nor to the ultimate success of any limitations defence to that claim.

I merely find that it is not plain and obvious that his claim can be dismissed or struck at this early stage based on the expiry of a limitation period. “Tholl J.A.” Tholl J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Drennan J.A.” Drennan J.A.