The law of limitations considers the time in which a legal proceeding must be brought. Failure to bring a claim within a required limitation period, may prevent an individual from commencing legal action altogether.
Limitation periods are created by government through the enactment of legislation. Every province and territory in Canada has enacted a general statue of limitations. In Ontario, the Limitations Act governs the relevant limitation periods that apply to civil disputes within the province.
Basic Two-Year Limitation Period
As a starting point, in Ontario, there is a basic two-year limitation period which sets out that a lawsuit must be commenced within two years of the date on which the claim is said to have been discovered.
Discovered is defined in section 5 of the Limitations Act. The Limitations Act states that a claim is discovered the earlier of:
(a) the day on which the person with the claim first knew,
- that the injury, loss or damage had occurred,
- that the injury, loss or damage was caused by or contributed to by an act or omission,
- that the act or omission was that of the person against whom the claim is made, and
- that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
In law, the concept of discoverability has been the subject of much judicial analysis and commentary.
Most recently, the Supreme Court of Canada clarified the law with respect to discoverability. In Grant Thornton LLP v New Brunswick, 2021 SCC 31, Justice Moldaver held that a claim is discovered when the Plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the Defendant’s part can be drawn.
If you think you have a claim, it is important to consult legal counsel to ensure that all relevant limitation periods are preserved.
Can you sue someone for something that happened many years ago?
In addition to the two year basic limitation period, section 15 of the Limitations Act establishes an ultimate limitation period of 15 years, which runs from the day the act or omission on which the claim was based took place.
The Limitations Act further states that “no proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place”.
The terms act and omission are further defined in section 15(6) of the Limitations Act. In the case of a continuous act or omission, the 15-year limitation period applies on the day on which the act or omissions stops.
If a potential action arises from a series of acts or omissions, the 15-year limitation period comes into effect on the day in which the last act or omission in the series occurred. And finally, if the action arises out of a failure to perform an obligation, the 15-year limitation period is applied from the first day in which there was a failure to perform the required obligation.
Once the 15-year limitation period has passed, Ontario’s Limitations Act is clear - no proceeding or claim can be commenced.
It is important to note that the ultimate limitation period does not run during periods in which the claimant is a minor or lacks legal capacity to bring a claim. In the case of a minor plaintiff, the limitation period begins to run when either the minor reaches the age of majority, or a litigation guardian is appointed.
No Limitations Periods
The Limitations Act sets out several exceptions to the two-year basic limitation period and the ultimate 15-year limitation period.
Neither the basic nor ultimate limitation period will apply with respect to the following claims:
- proceedings to enforce a court order;
- claims for support under the Family Law Act;
- sexual assaults;
- sexual assaults against minors;
- proceedings to recover money owing to the Crown;
- recovery of social assistance payments, student loans, awards, grants, contributions and economic development loans; and
- reimbursement of money paid in connection with social, health or economic programs or policies as a result of fraud, misrepresentation, error or inadvertence.
These exceptions are found in section 16 of the Limitations Act.
The Role of Limitation Periods
Limitation periods may appear unfair, but there is rationale for imposing limitation periods.
Firstly, limitation periods encourage diligence in commencing claims and encourage litigants to commence legal action in a timely manner.
With the passage of time, there is a concern that the quality and availability of the evidence related to the claim will diminish. By commencing a claim in a timely manner, all relevant evidence is more likely to be preserved. Limitation periods also help ensure that claims are brought without significant delay. As time passes there is a real risk that memories will fade, witnesses will die or move away, and other documents or relevant records maybe destroyed.
Secondly, limitation periods bring certainty to potential defendants and an assurance that after the relevant limitation period has passed, they will not be subject to a historical claim.
This certainty serves an important economic function in our society as the costs associated with maintaining records for many years and guarding against historical claims through obtaining adequate insurance coverage, is ultimately passed onto the consumer.
Impact of COVID-19 on Limitation Periods
As a result of the COVID-19 pandemic, limitation periods for civil matters were temporarily suspended from March 16, 2020, to September 13, 2020, as per O. Reg. 73/20. The suspension lasted for a period of 26 weeks and limitation periods began to run again on September 14, 2020.
Other Legislative Sources of Limitation Periods
Aside from the Limitations Act, other legislation for limitation periods and notice periods are found within the Occupiers’ Liability Act, the Municipal Act, the City of Toronto Act, the Trustee Act, the Construction Act, the Crown Liability and Proceedings Act, and the Libel and Slander Act.
While a discussion of all relevant limitation periods is beyond the scope of this blog post, if you intend to commence legal action, it is very important to speak with a lawyer early to ensure that all relevant limitation periods are preserved, as a limitation defence can be fatal to an otherwise meritorious claim.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.
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