All About Estates

2018: The Year of the Ultimate Limitation Period

All of us at AllAboutEstates hope you had a happy new year and will have an equally happy 2018. But 2018 must also be a year of vigilance: it is the last year that most historical claims (i.e. claims arising from events that occurred before 2004) can be brought before being forever barred under the ultimate limitation period. Lawyers must advise their clients to bring such claims promptly this year (even if they are only discovered in 2018).

The standard limitation period is set out in sections 4 and 5 of the Limitations Act, 2002 (the “Act”) which hold that claims must be brought within 2 years of being discovered (i.e. when a person knew or ought to have known they had a claim). Section 15 of the Act also provides that claims expire 15 years after the underlying act or omission occurred (with certain exceptions) regardless of whether the claim is discovered or not during this period. As such, this ultimate limitation period may expire before a person even knows they were wronged. However, the transition provisions of the Act have tempered this stern doctrine: if the claim was not discovered before January 1, 2004, then the underlying act or omission is deemed to have taken place on January 1, 2004.

As such, it is not uncommon for claims to be brought regarding matters that actually occurred decades ago. For example, the Court of Appeal, in York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49 held that a claim involving negligence in 1978 could be brought in 2005, because the claim was only recently discovered.  Due to the transition provisions, the ultimate limitation period had not expired. In effect, the Court of Appeal ruled, the Act had created “a 15-year transition period for undiscovered claims.”

This “15-year transition period” expires at the end of the year.

Claims that occurred before 2004 must therefore be brought before January 1, 2019[1] or they will be barred pursuant to the ultimate limitation period.

Note that there are some exceptions. The ultimate limitation period does not apply to claims where there is no limitation period (e.g. a proceeding based on a sexual assault). The ultimate limitation period also does not run for a potential plaintiff/applicant when they are incapable or a minor and not represented by a litigation guardian. Finally, the ultimate limitation period does not run where there is wilful concealment by the potential defendant/respondent.

Lawyers must therefore be vigilant regarding limitation periods this year. For example, imagine a client comes into your office right now and advises she has just discovered a claim where the act or omission occurred in the 1990s. She is unsure, however, whether or not to commence a claim. Normally, she might be advised that she has two years to decide whether to sue. But given the transition provision, there is only one year to decide as the claim will be barred on January 1, 2019.

Good luck and happy litigating in 2018!

[1] Under the Legislation Act, time limits that would otherwise expire on a holiday are extended to include the next day which is not a holiday. As January 1, 2019 is a holiday, there is an argument that the ultimate limitation period would actually expire on January 2, 2019. For prudence’s sake, however, instead of testing this argument, bring the claim by December 31, 2018.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: jkaufman@devrieslitigation.com

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