The fact that the choice belongs to the defendant is codified in s. 22 of the Limitations Act, 2002, which allows a limitation period to be suspended or extended by agreement.
 This is a very important and useful provision that allows
parties to a potential claim to suspend the running of a limitation (toll the limitation period) to allow them to conduct investigations or settlement discussions, without pressure on the claimant
to commence the action unnecessarily. It promotes judicial economy and is cost effective for the parties.
 Obviously, this provision would be ineffective if another
party could assert the limitation period in spite of the defendant’s agreement to toll the limitation period, or if the action
became a nullity on the expiry of the limitation period. See, for
example, Schreiber v. Lavoie (2002), 59 O.R. (3d) 130,  O.J.
No. 1288 (S.C.J.), where a third party was not entitled to rely
on rule 29.05(1) (a rule which allows a third party to plead a
defence not raised by the defendant) to assert a limitations
defense that the defendant had expressly agreed it would not
 In this case, it was neither the pleading nor the position
of the defendants, at any time in this litigation, that the estate’s
claim is statute-barred. To the contrary, the defendants were the
ones who invited the estate to assert its claim in 2016, and who
initiated the motion to add the estate as a party to the action
when the respondents would not consent to add the estate.
 The defendants have also continued to collect and retain
the portion of the rents belonging to the respondents on the
basis that the acknowledgments, if valid, make part of those rents
payable to the estate. They have assured the estate trustee, Mrs.
Zimmerman, that they were holding the funds to await the outcome of the litigation. Therefore, not only has there been no pleading of a limitations defence, but the defendants have made it clear
by their actions that they do not rely on such a defence.
(3) The estate’s claim is against the defendants, not the
 While the defendants never raised any limitations
defence, it was the respondents (the plaintiffs) who took the position on the motion that the estate’s claim was statute-barred. The
respondents had no standing to do so. By giving effect to their
submission, the motion judge erred in law by treating the
respondents as if they were defendants in an action by the estate.
 The respondents sued the defendants for payment of the
full amount of their share of the rents that Megapro collected
from the Danforth property. They did not sue the estate because