Every lawsuit has a deadline. If you do not commence a legal proceeding within the time period prescribed by law, your right to make that claim is forever lost. Even the very best claim can disappear because of the expiry of the limitation period.
Currently there are two principal statues which set out limitation periods in Ontario: the Real Property Limitation Act and the Limitation Act, 2002. The Real Property Limitation Act deals with real estate and other interests in land, such as mortgages. All other limitation periods are found in the Limitation Act, 2002. As a general rule, almost all claims which deal with real estate in Ontario are subject to a general six year limitation period and almost all other claims which arise under Ontario law are subject to a general two year limitation period.
EXCEPTIONS
However with every rule there are always exceptions. For example, a person can commence a claim for any of these issues after 2 years:
• environmental claims that have not yet been discovered. The limitation period only begins to run once the environmental claim has been discovered.
• assaults or sexual assaults during any time in which the person with the claim is incapable of commencing a claim because of his or her physical, mental or psychological condition.
• a proceeding by the Crown for the collection of a fine, taxes or interest that may be added to a tax or penalty.
• the collection of student loans, awards and grants.
WHEN DOES THE LIMITATION PERIOD START TO RUN?
But the most important question to ask your lawyer is when does your limitation period begin to run? Under the Limitations Act, 2002, the general rule is that the limitation period begins to run on the earlier of:
• the day on which the person with the claim knew:
o that the injury, loss or damage occurred,
o that the injury, loss or damage was caused by or contributed to by an act or omission of the person against whom the claim is made,
o having regard to the nature of the injury, loss or damage, a legal proceeding would be an appropriate means to seek to remedy it; and
• the day on which a reasonable person with the abilities and in the circumstances of the claimant first ought to have known of these matters.
It is not always easy to determine when the limitation period starts to run because there could be intervening circumstance which might stop or start the clocking running again. For example, in the collection of an unpaid account where your invoice states that payment is due 30 days after the date of the invoice, usually the limitation period begins to run 30 days after the date of the invoice. However, if the debtor acknowledges the debt in writing and signs the acknowledgement then the limitation period can be extend and will begin to run from the date of the acknowledgment of the debt. The delivery of a post-dated cheque or partial payment of the debt has been held to constitute an acknowledgement of the debt.
Also the limitation period does not run against minors and mentally incapable persons. The Limitation Act, 2002 provides for an extension of the beginning of the limitation period until the minor reaches the age of majority or until a litigation guardian is appointed to protect the minor or mentally incapable person’s rights.
If you think you have a claim then it is very important to consult a lawyer to determine when your limitation period begins and ends. The lawyers at BrazeauSeller.LLP can help you preserve your claim.
Marcia A. Green is a lawyer at BrazeauSeller.LLP. She practices in the area of commercial litigation. To learn more about Marcia, please go to www.brazeauseller.com. Marcia can be reached at 237-4000 ext. 228 or by e-mail mgreen@brazeauseller.com
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