Beyond “Exceptional Circumstances”: Raising Limitations Defences At Certification

Overview

Limitation defences are increasingly in play at certification. Recent case law shows that certification judges will engage with limitations defences where they expose fundamental deficiencies in the proposed proceeding—while reserving fact-intensive disputes for summary judgment or trial.

Many defendants have successfully raised limitations defences to limit the scope of a class action or even to defeat certification, including:

• under the cause of action criterion;
• to narrow the class definition or suitability of the class representative;
• to show that a class action is not the preferable procedure; and
• by way of summary judgment application.

Applying Limitations Defences to the Cause of Action and Class Representative Criteria