Author: Marshall Yarmus
Date Posted: July 15 2019
How long do I have to sue? The answer to that and most questions dealing with the law is….it depends.
There are two limitation acts in Ontario. They are the Limitations Act, 2002, and the Real Property Limitations Act.
Let’s focus on the Limitations Act, 2002. This act has many sections dealing with different types of claims from claims by minors and people who are not mentally competent to claims that have no limitation period.
The basic limitation period is set out in section 4 of the Limitations Act, 2002. It states:
“Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”
Section 5(1)(2) sets out when a claim is discovered.
“5 (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).”
(2) A person with a claim shall be 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..”
In some cases pinpointing when the Plaintiff knew or when a reasonable person ought to have discovered a cause of action is complex.
A thorough review of relevant case law is required. Other types of claims found in the Limitations Act, 2002 include claims regarding acknowledgement of liability. This is set out in section 13 of the act.
Section 13(1) and 13(10) state:
“13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.”
“13 (10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent.”
If a person acknowledges a debt in writing, the limitations clock stats over. Interestingly, there is a lot of case law concerning whether an email can be an acknowledgement in writing.
There are a number of types of actions that have no limitation period at all. One such action is the enforcement of a judgment.
Section 16(1)(b) states:
“16 (1) There is no limitation period in respect of,
(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court”
That means a money judgment obtained after January 1, 2004 never expires. There are many other types of claims under section 16 that have no limitation period at all.
Section 19 has a schedule of fourth-six (46) different acts where the Limitations Act, 2002 does not apply. To find the limitation period for causes of action mentioned in section 19 you need to look to the specific acts and section numbers mentioned
Section 19 includes certain sections of the Insurance Act, Corporations Act, Creditors’ Relief Act, 2010, Business Corporations Act, Business Practices Act, and the Reciprocal Enforcement of Judgments Act to name just a few.
I have talked about Rule 12.02 of the Rules of the Small Claims Court in another blog.
A motion can be brought under rule 12.02 in the small claims court Ontario to strike out a Plaintiff’s if, as a matter of law, it is plain and obvious the limitation period for the Plaintiff to have sued expired before the litigation commenced.
Determining the proper limitation period can be difficult. A mistake can be costly. If in doubt, hire a licensed paralegal Ontario for assistance. All Ontario licensed paralegals are required to carry errors and omissions insurance. If a paralegal makes a mistake that costs you the case, you can be assured you are protected.