Tag: Limitation Periods
A question that is often asked by plaintiffs is, “when does the clock start ticking to bring my claim?”
In Ontario, there are with certain exceptions, two limitation periods for plaintiffs to bring their claim and the rule of discoverability. First, pursuant to section 4 of the Limitations Act, 2002, no claim shall be brought after two years from the day on which the claim was discovered.
The second limitation period, which is known as the ultimate limitation period, as per s. 15(1) bars claims from being made after the 15th anniversary of the day on which the act or omission took place.
In New Brunswick there are statutory limitations for bringing claims along with the doctrine of discoverability. First, pursuant to section 5(1)(a) of the New Brunswick Limitation of Actions Act (“LAA”), no claim shall be brought after two years from the day on which the claim was discovered. Second, according to section 5(1)(b), no claim shall be brought after fifteen years from the day on which the act or omission on which the claim is based occurred. Section 5(2) further states that a claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss, or damage had occurred, (b) that the injury, loss, or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.
In the decision of Province of New Brunswick v. Grant Thornton, 2020 NBCA 18, the Court of Appeal of New Brunswick established the test for when a limitation period is triggered. They focused on the view that s. 5(1)(a) does not begin to tick until the plaintiff has discovered their claim. In their view, “the two-year limitation period begins to run the day after the plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy” (Para 7).
A year later, the Supreme Court of Canada came to a different conclusion in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Here, the Court enforced a new standard for when a plaintiff has the requisite degree of knowledge to discover a claim under section 5(2) of the LAA, which in turn affects the two-year limitation period under s. 5(1)(a). Going forward the standard to be enforced is whether “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn” (Para 42).
Although Grant Thornton arose from legislation in New Brunswick, it is plausible the Court’s decision will have implications for how Ontario’s Limitations Act, 2002 and the discoverability doctrine will be interpreted going forward.
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A baby in a swimming pool reaching for a $1 bill. Music lovers would instantly recognize this description as the album cover of Nirvana’s 1991 album “Nevermind.”
Until recently, Spencer Elden – the baby in question – embraced the fame that came with being on the cover of one of the most recognizable albums of all time. Elden even recreated the notorious photo several times over the last 30 years to mark the album’s 10th, 20th, and 25th anniversaries. In those photos, Elden is wearing swimming trunks.
Earlier this week, Elden made headlines when the media learned that he was suing the parties involved for sexual exploitation. Elden argues that his parents never authorized the use of his photograph for the Nirvana album, and that the band used the image to promote their music at his expense. Elden is seeking $150,000.00 USD in damages from each of the 15 defendants, which include the photographer Kirk Weddle, the surviving band members, and Kurt Cobain’s Estate.
Elden’s lawsuit has many people wondering: can an Estate be sued 30 years after an incident took place?
In California, where Elden began his lawsuit, victims of sexual abuse crimes who were children at the time of the alleged incident have until their 40th birthday or 5 years from the date that they discovered their abuse to file a civil action.
What if this claim had been commenced in Ontario? On March 9, 2016, the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B was amended to remove all limitation periods for civil claims based on sexual assault. Therefore, assuming that a judge would find that Elden’s lawsuit can be properly classified as sexual abuse, Elden would be well-within his rights in bringing this claim.
However, if a judge ultimately found that Elden’s claim is not a civil claim based on sexual assault, different limitation periods would apply. Generally, the Limitations Act, 2002, provides an individual with two years from the date on which a claim is “discovered” to commence a claim before it is statute barred. However, individuals intending to commence a claim against someone who has died, such as Kurt Cobain, must also consider the much stricter limitation period imposed by section 38 of the Trustee Act, R.S.O. 1990, c. T.23.
Section 38 of the Trustee Act imposes a strict two year limitation period from the date of death for any individual to commence a claim against a deceased individual in tort. This limitation period is much more strict, as it is not subject to the same “discoverability” principle as the limitation period imposed by the Limitations Act. We have previously blogged about the limitation period imposed by section 38 of the Trustee Act here.
It remains to be seen whether Elden will be successful in his claim. However, this case should serve as a reminder to Estate Trustees and solicitors that Estates may be held accountable for events that took place well before the Deceased’s death, depending on the nature of the claim.
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As we all know, claims must be commenced in a timely fashion. If too much time passes, a claimant may be precluded from commencing their claim. That is referred to as a limitation period.
In Ontario, the Limitations Act, 2002, SO 2002, c. 24 governs the question of limitation periods. In accordance with section 4 of this Act, the basic limitation period for commencing proceedings is two years from the time the claim was discoverable.
The specific wording of section 4 is as follows:
“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”
When reading this, an interesting question comes to mind, in that, when does the limitation period expire, exactly?
I reviewed some of the cases that interpreted this provision (and there are well over 1,000 reported decisions that address it) and found a few interesting cases:
- In the decision of Winmill v Woodstock Police Services Board, 2017 ONSC 2528, the Court addressed the question of a limitation period in the context of an altercation with the police that occurred on June 1, 2014. The Court found that the two year limitation period expired on June 1, 2016 – meaning exactly two years from the date of the incident.
- In the case of Seenergy Foods Ltd v Ready Go Transport Inc, 2019 ONSC 4562, the Court addressed the question of whether the moving party was out of time to add a defendant to an ongoing action. For context, an examination for discovery took place on January 26, 2018 and the name of the proposed defendant was provided by way of an answer to an undertaking on November 12, 2018. The Court found that the limitation period did not expire earlier than January 26, 2020 and most likely not until November 12, 2020. In this case, the Court was also of the position that the limitation period expires exactly two years from the date that the claim was discovered.
- In Prescott v Barbon, 2015 ONSC 7689, the Court addressed whether the plaintiff was out of time to pursue a claim relating to a motor vehicle accident that took place on December 28, 2008. The Court found that because December 28, 2010 was a holiday, the limitation period did not expire until the end of December 29, 2010. It is important to consider that the Court made its decision in reliance on whether or not the Court was opened so that the plaintiff could issue the claim. In light of that, I read this decision to suggest that the two year limitation period expired on December 29, 2010 at 5 p.m.
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Under the Limitations Act, 2002, most actions are subject to a two-year limitation period. However, the limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding AND not represented by a litigation guardian in relation to the claim. A person is presumed to be capable unless the contrary is proved.
What happens when a claim is commenced, but not all defendants are named? This issue arose in the recent decision of Wood v. David Mitchell et al., 2020 ONSC 4903 (CanLII). There, the plaintiff suffered a stroke. He sued a number of defendants in relation to his medical care. One doctor was referred to in the Statement of Claim, but not named as a party. Three years after the claim was started, the Public Guardian and Trustee was appointed as the plaintiff’s litigation guardian. The PGT moved to add the doctor as a defendant. The doctor moved to strike the claim on the basis of the passage of the limitation period. The plaintiff resisted, taking the position that the plaintiff did not have capacity when the claim was commenced, and did not have a litigation guardian.
The doctor raised two main points. Firstly, the doctor sought information about communications between the plaintiff and his initial lawyers going to his capacity at the time. Secondly, the doctor argued that the plaintiff was represented initially by a “de facto” litigation guardian, a Mr. McQueen.
The decision addressed these issues from the perspective of a motion to compel answers to questions and further production. The plaintiff had refused to answer questions about his and Mr. McQueen’s communications with his initial lawyers and to produce the lawyers’ file on the basis of relevance and privilege.
At first instance, the Master disallowed the questions. On appeal, the court ordered that the lawyers’ files as they relate to the plaintiff’s capacity and to Mr. McQueen’s dealings with the lawyers must be produced, even if privileged.
The court held that on the first issue, as the plaintiff put his capacity in issue, information that his lawyers had about his capacity was to be produced. The court stated that the “elephant in the room” was “what were the plaintiff’s initial lawyers thinking” when they commenced the claim? Did they believe that the plaintiff had capacity? If so, what was that belief based on?
On the second issue, the court referred to the Court of Appeal decision of Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385 for the proposition that a de facto litigation guardian could recommence the running of the limitation period. In Azzeh, the court held that a person could be considered litigation guardian, even if not formally appointed, if they held themselves out as litigation guardian. In Wood, the court held that the definition of “litigation guardian” might even by broader.
As can be seen, the issues that arise in litigation where the capacity of a party may be in issue can be complex. The courts must walk a fine line of ensuring that the right to sue is not taken away from an incapable person, while ensuring that the rights of third parties, including the right to the protection of limitation periods, are safeguarded.
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After consulting with the Chief Medical Officer of Health, the Ontario government has extended all emergency orders that are currently in effect until June 19, 2020.
For a list of the emergency orders under s. 7.0.2(4) of the Emergency Management and Civil Protection Act (“EMCPA”) that have been extended, see here.
Ontario has also announced that it is extending the suspension of limitation periods and time periods in proceedings pursuant to O. Reg 73/20 until September 11, 2020, which is the maximum renewal period allowable under the EMCPA. O. Reg. 259/20 implements the extension and can be found here.
Furthermore, to address concerns raised by the bar, the Lieutenant Governor in Council has amended O. Reg. 73/20 to provide for further clarity. O. Reg. 258/20 amends the language of O. Reg. 73/20 such that the suspension of limitation periods is no longer tied to the “duration of the state of emergency,” allowing the duration of the order to be based on all relevant factors, and not just the state of emergency. As reported by the Ontario Bar Association, “decoupling” the duration of the suspension from the state of emergency was implemented to address the bar’s request for reasonable predictability and notice.
With regard to the suspension of deadlines and procedural steps set out in any statute, regulation, rule, by-law, or order of the Ontario government, O. Reg. 73/20 provides that the suspension is subject to the discretion of “the court, tribunal or other decision-maker responsible for the proceeding…” O. Reg. 258/20 has clarified that this discretion may be exercised by:
- the person or persons who have jurisdiction to make orders in the proceeding;
- the Chief Justice of Ontario, in respect of proceedings before the Ontario Court of Appeal;
- the Chief Justice of the Superior Court of Justice, in respect of matters before the Superior Court of Justice;
- the Chief Justice of the Ontario Court of Justice, in respect of matters before the Ontario Court of Justice; and
- the chair of a tribunal, in respect of proceedings before the tribunal.
Finally, O. Reg 258/20 provides for the resumption of enforcement under Part V of the Family Responsibility and Support Arrears Enforcement Act.
With court closures, limited filings, suspensions of limitation periods, and a likely period of “post-pandemic austerity” on the horizon, Ontario’s justice system is changing, and will need to continue to change to effectively meet the needs of the public. Limitation periods may be on pause, but peoples’ lives continue. For many, this means having some form of interaction with the justice system. Ontario’s Chief Justice, the Honourable Justice George Strathy, has provided his thoughts on what changes may be needed, and questions whether oral advocacy is necessary in every case. For more on Justice Strathy’s comments, see here.
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Many of us are familiar with the expression: “Time waits for no one.” We also previously blogged about the impact time has on all parties in litigation: “No one likes to see a limitation period applied to dismiss a claim.” (So says Justice Nakatsuru in the opening line of his decision in Sinclair v. Harris.)
In general, claims must be commenced in a timely fashion. If too much time passes–depending on the circumstances and nature of the claim–parties may be prohibited from commencing a lawsuit, or have their lawsuit dismissed, by what is known as a ‘limitation period’.
With the recent developments of COVID-19, however, the Lieutenant Governor in Council made an Order under s. 7.1 of Ontario’s Emergency Management and Civil Protection Act suspending limitation periods in Ontario. This suspension is retroactive to March 16, 2020. A copy of the Order can be found here.
What happens when the suspension is lifted? It will be interesting to see if limitation periods go back to existing the day this suspension is lifted, or if further legislation may be needed to deal with this issue. For now, it appears that “time” is waiting for everyone.
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The testators died in 2008. The family realized there was a disagreement about the validity of their parents’ codicils that year but everything seemed to be on hold until Helen brought an application in 2015 to determine the validity of the codicil. In response, Krystyna brought a motion for summary judgment to dismiss Helen’s application on the basis it is statute barred pursuant to the Limitations Act, 2002. This motion was brought by Krystyna because she was interested in maintaining the force and effect of the codicils that gave her certain properties. Thereafter, Helen cross-motioned for summary judgment on her application.
Rule 20.04 of the Rules of Civil Procedure sets out the basis for summary judgment. Summary judgment shall be granted if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, determined that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”
With that in mind, Justice Dietrich found that Krystyna’s motion for summary judgment was appropriate for the following reasons (see para. 35):
- There were no material facts in dispute;
- No additional facts would emerge at trial;
- The application of an absolute limitation period was generally a fairly straightforward factual analysis;
- That based on the evidence before her, this matter can be resolved without a trial and that a trial of this narrow issue would be a more expensive and lengthy means of achieving a just result.
The Ontario Court of Appeal agreed with Justice Dietrich’s finding on this point. The panel emphasized how both parties brought summary judgment motions and filed affidavits with exhibits of their own.
In contrast, a similar summary judgment motion was unsuccessful in Birtzu v. McCron, 2017 ONSC 1420, 2019 ONCA 777 (on the issue of costs, only). The Court in Birtzu found that summary judgment was not appropriate and ordered costs against the defendant in any event of the cause (with reasons that were unreported). That said, the defendant was ultimately successful in proving that the plaintiffs were statute barred after a full trial on all issues.
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Doreen So and Celine Dookie
Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26. No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.
The testators in this case died in 2008. They had 3 children, Helen, Victor, and Krystyna. A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate. During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties. Helen refused to acknowledge the validity of these new documents.
In 2015, Helen brings a court application. Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils. Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application. Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.
The Court of Appeal agreed with Justice Dietrich. The panel was also of the view that this case is distinguishable from Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases. Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:
- an Order setting aside the Will;
- an Order setting aside the Deceased’s Powers of Attorney;
- an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
- Orders for the production and release of financial and medical information;
- an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
- an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
- Orders for injunctive relief, including the issuance of a certificate of pending litigation;
- a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
- damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
- pre- and post- judgment interest; and
- costs fixed on a substantial indemnity basis, plus H.S.T.
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A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.
Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury. When Hugh Drury died, Robert Sr. sought vacant possession of his home. Robert Sr. died on September 8, 2016. Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.
Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property. That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway. Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019. Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.
In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.
The delay was only three months and the prejudice to Shirley was minor. Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding. This decision was not personal or contemptuous. As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.
In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding. In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.
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A recent decision of the Ontario Superior Court of Justice highlights the importance of preserving a surviving married spouse’s ability to elect for an equalization of net family properties within the six-month limitation period.
Upon death, a surviving married spouse in Ontario can elect for an equalization of net family properties under Sections 5 and 6 of the Family Law Act instead of taking under the predeceasing spouse’s will or, if the spouse has not left a will, on intestacy. Subsections 6(10), 6(11), and 7(3)(c) of the Family Law Act provide that the surviving spouse must ordinarily make an election within six months of date of death and not after that date. The Court may, however, extend the election deadline in the event that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and, (c) no person will suffer substantial prejudice by reason of the delay (subsection 2(8) of the Family Law Act).
Courts have reviewed the circumstances in which an extension is typically ordered. The requirement that the delay be incurred in good faith has been interpreted as meaning that the party has acted honestly and with no ulterior motive (see, for example, Busch v Amos, 1994 CanLII 7454 (ONSC)).
In Mihalcin v Templeman, 2018 ONSC 5385, a surviving spouse had commenced two claims with respect to the estate of her late husband and an inter vivos gift made to a live-in caregiver. However, neither of the proceedings had sought any relief relating to an equalization of net family properties, nor did the wife take any steps to make an election or to extend the time within which she was permitted to do so. The Court reviewed whether the delay in making the election was in good faith. The evidence regarding the reasons for the delay in electing for equalization were considered to be vague and insufficient to satisfy the evidentiary burden that the delay was incurred in good faith. Accordingly, the applicant was not permitted to amend her pleadings to incorporate this relief.
Justice Bruce Fitzpatrick commented as follows with respect to the importance of limitation periods, generally (at para 48):
I am mindful of the general importance of limitation periods for the conduct of litigation. There is an obligation on parties to put forward all known legitimate claims within certain time limits. In this case, the time limit was relatively short. I think it cannot be readily ignored. The evidentiary record is not sufficient for me to say that justice requires me to exercise my discretion in favour of allowing [the applicant] to amend her claim so as to include a claim for equalization in all of the circumstances.
Where an equalization of net family properties may be sought at a later time (for example, pending the outcome of a will challenge or dependant’s support application), it is prudent to seek an extension well before the expiry of the six-month limitation period as courts may or may not assist a surviving spouse in seeking this relief down the road, if and when it may become advisable.
Thank you for reading,
Other blog entries/podcasts that may be of interest:
- When is it Appropriate to Extend the Time Granted in Favour of Equalization Under the Family Law Act?
- Equalization Claims and Unequal Division of the Net Family Property
- Family Law Equalization Claims and Bankruptcy
- Consolidation of Family Law Act and Dependant Support Claims