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Limitation Periods

July 20th, 2013 — Litigation

Anyone who thinks that they may have a claim should be wary of the relevant limitation period in bringing that claim. The Limitations Act imposes restrictions on the period of time after which a claim cannot be advanced. This legislation has undergone significant changes over time and has a number of exceptions that go beyond the scope of a simple blog posting. If you believe you have a claim, you should seek legal advice as soon as possible in order to avoid running afoul of the appropriate limitation period.

The following are some general guidelines only and not to be construed or interpreted as a limitation period in your case without consulting a lawyer first. Generally speaking the basic limitation period in Ontario is two years for things like torts and simple contracts. The two years begins to run when the potential claim is discovered or ought to be discovered. This is somewhat vague and can confuse a number of people. Particularly, the time when a claim ought to have been discovered can be difficult to determine. The court will look at the facts through an objective perspective to determine what is reasonable under the circumstances. That is to say, discoverability can be debatable.

In Family actions/applications, the equalization of net family property is 2 years after divorce, 6 years after separation and 6 months after death of a spouse (see Family Law Act, s. 7(3).  When it comes to spousal support, there is no limitation period,Family Law Act, s. 50.   In estate matters, the limitation period is 2 years for executors and administrators, Trustee Act, s. 38.

There is also the “Ultimate Limitation Period” which is the 15 year limitation period in Ontario. This is a catch all that prevents claims from being advanced 15 years after the act or omission (subject to certain exceptions which include age of minority and incapacity), Limitations Act, 2002, s.15. This ultimate limitation does not depend on whether the claim was discoverable or not. It is as simple as counting 15 years from the date of the act or omission in order to see if a claim can still be advanced.

There are a number of exceptions to the limitation periods that can extend the period in which a person can advance a claim. Certain claims have no limitation period, such as family law claims for support or for the Crown to recover taxes and penalties. There are also specific statutory limitation periods that are not under the Limitations Act. These include construction lien claims, Securities Act claims and many more.

Limitation periods are important considerations when a person is considering making a claim. There are a number of statutes that overlap and impose limitations above and beyond what the Limitations Act itself imposes. The act has multiple rules that must be considered. These issues are complex and involve significant legal expertise.

If you feel that you have a possible claim, you should be aware that there may be limits on when you can bring a claim. The sooner you seek legal advice the sooner you can determine the best course of action. By consulting a lawyer, you can get the appropriate advice in order to preserve and possibly advance you claims before time runs out.