When to Sue? Don’t Wait too Long

Limitation Periods in Ontario

Clients want to know what their chances of success would be if they were to start a lawsuit. The facts, evidence and law are all factors to consider when making this evaluation. One of the first issues to sort out is whether any limitation period exists which may affect the viability of the claim. If the lawsuit is brought too late, the chances of success are zero.

There are a number of statutes which affect when it is too late to pursue a lawsuit, including: the Limitation Act, Estates Act, Family Law Act, Occupiers’ Liability Act, the Municipal Act, the City of Toronto Act, the Trustee Act, the Construction Act, the Crown Liability and Proceedings Act, and the Libel and Slander Act. Other acts may not prevent a claim from being pursued but will affect how far back damages can be collected. For example, the Patent Act and Trademarks

Act both limit monetary recovery to 6 years before the lawsuit is commenced and the Copyright Act and Industrial Design Act limit monetary recovery to 3 years before the lawsuit is commenced. In Ontario, the basic limitation period is two years between when a claim is discovered and when a proceeding is commenced. The key word is “discovered.” Some claims may not be discovered until years after the purported defendant has done (or omitted to do) something.

The Supreme Court of Canada, in a 2021 decision, unanimously held that a claim is discovered when the plaintiff knows, or should have known, the material facts upon which a plausible inference of liability on the Defendant’s part can be drawn. What is a “plausible inference of liability”? More than mere suspicion or speculation, but less than a certainty.

There are many exceptions and special cases. For example, if making a claim against a Province, or Municipality, a notice of the claim must be made within 10 days from date of accident/injury. In motor vehicle accident claims, there may be a need to notify the insurance company and give written notice to the driver at fault. Limitation periods can run differently for plaintiffs who are minors.

The Ontario Limitations Act also provides for an ultimate limitation period of 15 years from when the event occurred to when a suit is started. This ultimate limitation period can be affected if there has been a deliberate concealment of the fact that an injury, loss or damage has occurred or the appropriateness of starting a lawsuit.

Finally, if you are considering starting a lawsuit but may be able to settle the dispute, parties can agree to “stop the clock” on the expiry of a limitation period. This can allow parties more time to settle the dispute without having to start a lawsuit.

If you have any questions related to litigation, contact us here!

Author:

Peter Choe

Head of Litigation

e: peter.choe@realtycarelaw.com