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If you have suffered an injury or loss due to the actions of another party and are considering initiating a civil claim, it is important to understand the limitations imposed by the Limitations Act, 2002 (the “Act”). The Act imposes limitations on how long a plaintiff can wait before initiating their claim. If a claim is not brought within the time limits established by the Act, the claim can be defeated.
While it may seem unjust in some circumstances to bar claims strictly because of the time that has elapsed since the events, the Act provides some significant benefits, such as providing security to potential defendants and promoting the efficient use of court resources. The Act provides finality to potential claims and ensures that potential defendants are not at risk of being sued for an open-ended period of time. Additionally, longer periods of time can cause evidence to be lost or misplaced, making it more challenging to determine the facts of the case and resulting in prejudice to the defendants.
The Basic Limitation Period
Unless otherwise provided by the Act, a civil claim must be commenced within two years of the day on which the claimant discovered, or should have discovered, the claim.
A claim is “discovered” on the day on which the claimant knew, or ought reasonably to have known that:
- The injury, loss or damage had occurred;
- The injury, loss or damage was caused by or contributed by an act or omission;
- That the act or omission was that of the person the claim is against; and
- That a proceeding would be an appropriate means to seek remedy.
A claim is presumed to have been discovered on the day the action or omission occurred. If the claimant wishes to dispute this presumption, they must prove that the claim was discovered at a later date. If successful, the limitation period will run from the date of discovery.
There are many cases focusing on the technical discoverability doctrine. For example, in The Corporation of the United Counties of Prescott & Russell v David S. Laflamme Construction Inc. and Waterproof Concrete (Canada) Ltd, the plaintiff sought to add an additional defendant, the consulting engineer retained for a bridge reconstruction project, based on consulting recommendations made in 2004 that led to deficiencies in the project. The consultant argued that the claim was discoverable when these deficiencies started to appear in 2006, however the court determined that the claim was not discoverable until the plaintiff received expert reports in 2014 revealing that the deficiencies were caused by the consulting recommendations rather than the workmanship.
The basic limitation period does not run while the claimant is a minor or is incapable of commencing a claim due to their physical, mental or psychological condition and is not represented by a litigation guardian.
The Ultimate Limitation Period
The ultimate limitation period is fifteen years from the date the act or omission takes place, regardless of whether the claim has been discovered.
This ultimate limitation period does not run during any time in which the claimant is a minor, is incapable of commencing a claim because of their physical, mental or psychological condition, the defendant willfully conceals the damage or injury that has occurred or the defendant misleads the claimant with respect to the appropriateness of a proceeding as a means to remedy the situation.
Other specialized statutes in Ontario can impose longer or shorter limitation periods. For example, the Construction Lien Act imposes a forty-five day limitation period (to be amended on July 1, 2018 to a sixty day limitation period) to register a lien, the Libel and Slander Act imposes a three month limitation period and the Real Property Limitations Act establishes specific limitation periods for various real estate remedies. These are just a few of the existing statutes that impose special limitation periods.
Claims with no Limitation Period
Certain claims are not subject to any limitation period, such as:
- Declarations where no consequential relief is sought;
- Enforcement of a court order;
- Notice of injurious affection claims under the Expropriations Act;
- Claims by the Crown to recover money owed for fines, taxes and penalties; or
- Undiscovered environmental claims.
It is imperative to act quickly if you think you have suffered an injury or loss. Waiting too long to initiate litigation can cause the claim to be defeated. Considering the vast number of exclusions, exceptions and specific limitation periods, it is necessary to contact a legal professional as soon as possible to review your case, determine the applicable limitation period, and determine the appropriate course of action to pursue your claim.
Please contact Michael Paiva for more information about limitation periods, or if you require assistance with a civil dispute.
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