The dreaded limitation period! Lawyers everywhere know one of the biggest considerations in commencing legal action is ensuring that it is done within the limitation period. In Ontario, the basic limitation period is 2 years from the date the claim is discovered. When exactly the clock starts ticking on that 2 year period can be contentious.
When is a claim discovered?
Section 5 of the Ontario Limitations Act, 2002 provides that:
(1) A claim is discovered on the earlier of,
- (a) the day on which the person with the claim first knew,
- (i) that the injury, loss or damage had occurred,
- (ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
- (iii) that the act or omission was that of the person against whom the claim is made, and
- (iv) 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).
A person with a claim is, however, presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
There are numerous exceptions for when a claim is discovered though, and a thorough review of the Limitations Act, 2002 should be conducted before any claim is started.
When is a proceeding appropriate?
Recent case law has focused on section 5(1)(a)(iv) and when a plaintiff discovered when a proceeding would be an appropriate means to seek to remedy their injury, loss or damage. The purpose of section 5(1)(a)(iv) is to dissuade parties from rushing to litigation, while also ensuring that delay for tactical reasons does not suspend the running of the limitation period.
In Fercan Developments Inc. v Canada (Attorney General), 2021 ONCA 251, the Court held that determination of when a plaintiff discovered or ought to have discovered that a proceeding was appropriate is a fact-specific exercise. While previous cases can assist in identifying certain general principles, whether a proceeding would have been an appropriate means to seek to remedy a claimant’s damage, injury or loss will turn on the facts of each case and the abilities and circumstances of the particular claimant.
In Fercan Developments Inc., the question for the Court was not whether an action could have been commenced, but when it was appropriate to do so. In that circumstance, the Court held that it was appropriate for the plaintiff to wait to commence an action against the Crown for inter alia malicious prosecution until after the civil forfeiture proceedings, which had been commenced by the Crown, had concluded.
In RNC Corp v Johnstone et al., 2020 ONSC 7751, the Court was asked to consider whether the Tarion warranty process could toll a limitation period under a construction contract for unpaid invoices. Ultimately, the Court declined to make such a determination on a motion for summary judgment.
There are numerous cases regarding limitation periods. Ensure you don’t miss your limitation period. Contact one of our civil litigators at RichardsonHall LLP to start your claim now.
This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations.