Is Time on Your Mind? Part One

Are there items yet to be checked off your daily, monthly, or yearly to-do list? With the end of the year fast approaching, this blog kicks off a series on the importance of timely action when pursuing lawsuits in Ontario. In legal matters, time is always of the essence.

Section 4 of the Ontario Limitations Act, 2002 establishes a general two-year time limit (a limitation period) to make a claim from the date the claim is discovered. While exceptions to this limitation period exist, it is the focus of this blog. Section 1 defines claim as a “claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” In Kaynes v BP p.l.c., the Ontario Court of Appeal stated that a claim is pursued in a court proceeding to obtain a remedy for a loss caused by another. Section 5 of the Limitations Act, 2002 dictates that claims are discovered when the person with the claim, or a reasonable person in the circumstances, first knew, or would have known each of the following:

i) the injury, loss or damage occurred;

ii) the injury, loss or damage was caused by or contributed to by an act or omission;

iii) the act or omission was that of the person the claim is made against, and

iv) a proceeding would be an appropriate way to seek to remedy the injury, loss, or damage.

The two-year limitation clock starts ticking on the earlier date of either when the person with the claim discovered it or when a reasonable person would have discovered it. In other words, if the person with the claim is the person who discovered it, that individual cannot extend the limitation period because a reasonable person in similar circumstances would have discovered the claim on a later date. The opposite is also true: the person with the claim does not get to extend the limitation period because they discovered the claim on a date later than a reasonable person would have discovered it.

It is important to be aware of the time constraints to commencing lawsuits in Ontario. A successful limitations defence is a complete bar to a claim. People being sued should consider if the claim was brought too late. People planning to sue should avoid delays.

While year end is often a race to complete tasks before the year is up, the New Year can be a time for discovery. The next blog in this series on limitation periods will be devoted to the complicated and nuanced issue of discoverability, specifically the factors used to determine when a claim was, or should have been, discovered. The concept of discoverability can, in certain circumstances, extend a limitation period beyond two years from the date of injury or loss. Stay tuned.