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Welcome everyone, this is Amer Mushtaq from You Counsel.

Today, we’ll talk about an important topic that deals with the time period within which you can commence a legal proceeding in Ontario, if you believe that you have suffered some sort of harm. The topic is important because if you do not follow or if you do not commence your legal proceeding within the time period that you are allowed, you may not be allowed to proceed with your action, or you may not succeed in your action, simply because of the delay. So, you may have a strong case on the merits of it but just because you did not commence the court action within the time period, you may not be allowed to proceed with your claim... that is why the topic is important and we’ll try to explain some of the fundamental concepts in today’s lecture.

We begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or a paralegal or contact the Law Society of Upper Canada for any referrals.

In today’s discussion, we’ll talk about what is the statute of limitations... we briefly explained to you in the introduction. What is the purpose? Why is the statute of limitations exist to begin with? What is the Ontario legislation that deals in civil action, civil matters in Ontario with respect to limitations period? What is the concept of discoverability? I’ll explain, this is an important concept, so, you need to have some understanding of this concept and I’ll try to explain it by way of an example. What are some of the exceptions to the limitations period and that’s also very, very important for you to understand. And then we’ll talk about the tolling or suspension of the limitations period, is it possible and if it is how do we go about doing that?

Statute of Limitations, as I said, it provides the maximum time... it allows the maximum time after an an event has occurred within which a legal proceeding maybe commenced. So, the last one I’m saying is that, the limitations, the statute of limitations could be a complete defense to a claim... meaning you have a valid claim against the party and you want to pursue it, but simply because you delayed your commencement of your legal proceeding and went beyond the limitations period, you may not be allowed to proceed.

I can give you a very small example, let’s say you... someone borrowed money from you and the person said that person will return that money on such and such date... and after that date had expired, if you did not seek the return of the money or you saw the return of the money and the person refused to pay it back, then you have now a claim against that person to go in court and get a judgment against that person for not returning the loan or the money that you had lent. So, you can not wait for years and years and years to commence that court action and get a judgement. There is a time period within which you can go to court, ask the court that you want a judgment against that person, so that that person may be ordered to give you the money back and if you do not do that within a time period, within a specific time period which is covered under statute of limitations, then that person that defendant can simply stand up in court and say that, “your action is statute barred, you are out of your time and therefore, your matter should not be heard or a judgement should not be given against that person”. So, that’s why the statue of limitations is an important issue if you have a potential claim.

What is the purpose? Why do we have the statute of limitations, in the first place? The purpose is really to protect the defendant’s rights. And also by imposing limitations period, the judicial system requires the plaintiffs to pursue with reasonable diligence, if they have any claims. They don’t want people to sit on their claims for years and years if they have a valid claim or if they want to pursue it in the judicial system. So it imposes some onus on plaintiffs to pursue it with diligence and also it protects the defendants because if a significant amount of time has passed, the defendant may lose the necessary evidence that they need to defend themselves. And so, in that instance, there is a possibility that because off the loss of evidence, there’s a potential that the court may may grant unjust remedies that may not be appropriate.

In Ontario, the limitations period is defined in the limitations Act 2002 I have provided the link here, you can Google it, and check out the limitations act. I’ve opened it right here and it covers all the topics relating to limitations within this act. So, by all means check this litigation limitations act and get a sense of what kind of limitations are provided in this legislation. Now, Section 4 of the limitations act, provides a basic limitation period of two years. Let’s look at Section 4 let’s quickly read it, “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”... that’s called basic limitations period and it covers it covers a variety of legal claims... but there are exceptions as I mentioned in the beginning, so, you want to be very careful whether to understand whether your specific claims fall under the basic limitations period or it falls under a different limitations period and so, you need to understand that.

We talked about the concept of discoverability... let’s look at where this concept of discoverability is coming from. It’s coming from the very section four that I’ve just read and the last sentence towards the end it says, “the day on which the claim was discovered”. So what does that mean? When was the claim discovered, how do you determine when the claim was discovered and that concept is defined in section 5 which we’re going to read and then I’ll try to give you an example and explain what this concept of discoverability means. “A claim is discovered on the earlier of”... number one or paragraph A... “the day on which the person with the claim first knew that the injury loss or damage has occurred [or had occurred] that the injury loss or damage was caused by or contributed to by an act or omission and that the act or omission was that of the person against whom the claim is made and that having regard to the nature of the injury loss or damage or proceeding, would be an appropriate means to seek to remedy it, and the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters required to in Clause A”.

So, I will explain this to you- sort of- try to decipher it. The section is self-explanatory, but I’ll try to decipher it, so, that you can understand it in simple terms. Obviously, you need to know that the injury loss or damage has occurred, right? Secondly, the injury loss or damage that has occurred is because of an act or failure to act on part of somebody or someone and some party... and then that is the party whose failure or failure to act or whose action that you are alleging is the one who’s the defendant, right? So, that’s that straightforward and the fourth part is that commencing a court proceeding is the appropriate remedy... which is which make sense... and the paragraph sub B is important. This assessment of whether the injury has occurred, who has caused that injury, are you suing right defendant... it is an objective analysis, it is not a subjective analysis. So, what it does is, it puts an objective analysis in subsection B... basically saying that we will put a reasonable person in your shoes and then decide whether when was the first time that the person knew that they had a claim, right? So, that’s the discovery. So, the idea is that you can’t have every person subjectively stand up and say, “I did not know that the injury had occurred or I did not know that such and such person had caused this injury”... it is an objective analysis. So, that’s important.

Then, subsection 2 of Section 5 is also important, a person with a claim shall be presumed to have known of the matters referred to in clause 1A, on the day the actor or omission on which the claim is based took place, unless the contrary is proved. So, there’s a presumption here, that if you are the plaintiff, you knew on the day when the injury occurred, that you had a claim and the court is going to pursue that unless you can prove it otherwise.

So, there’s a basic assumption here... a bit of a complicated language... let’s explain that by way of an example, some of the aspects of this section so you can get an understanding of what it means. So, we’ve given the example of a broken leg vs. a lung disease. You get into a car accident, you know, let’s say yesterday and you end up having some like, you know, leg injuries and when you go to the hospital you find out that your leg is broken... and the broken leg was caused by- sort of- the failure or the negligence or an act of the other driver in another vehicle. So then, what you are looking at is, in terms of the discoverability, you have now discovered that the leg is broken, you have discovered that the leg is broken because of the negligent driving of a driver in another vehicle and so, and that is the person and that defendant is the person that you are suing... the driver or the insurance company or whoever is liable for that but that is the person the correct person that you are suing. Then you have, so if you have that knowledge, if you learned all of these things today you came out of the hospital or you went to the hospital and you discovered today... then you have a claim starting from today. That’s when the discoverability of your legal claim has happened, so, that’s the case of broken leg example which is sort of straightforward. Let’s take an example of lung disease and the example that comes to my mind is by use of asbestos, so, people who worked in these factories which were surrounded and they were surrounded by asbestos and they inhaled asbestos and they got some lung disease later on their life. So, the question then becomes when when did you discover that this person had a lung disease, it may not have occurred, you know, many years from that time when the person was working in a factory. So, what day or what what was the day when the actual injury or harm took place? So, it may have taken place a number of years after the exposure to asbestos... problem number one.

Number two, how do you know it was because of an act or ommission when people were suffering lung disease because of asbestos, there was not enough medical research available that indicated that because of asbestos, the lung disease was caused to those those individuals, right? So, the cause or the act or the omission was not clear, so, it became, it was discovered later on. So, your knowledge of what caused that injury or harm was discovered maybe later on in the time period... and number three are you suing the right defendant? Right, so in this situation in the lung disease situation, the discoverability does not remain a straightforward matter, right... and so, that’s why if you were unable to discover it fifteen years ago that asbestos caused a long disease and the defendants that you’re suing are the ones who were behind that act or omission... then you would not have been able to commence the claim. So, that’s why the discoverability is important that a reasonable person should have discovered that he or she has a claim, right? So, in most cases the discoverability is straightforward: you loan somebody money, they were supposed to pay back to you in a certain date, they did not, you know that your loan is unpaid, you have a claim against them. You get into a car accident, you have a broken leg or a broken arm, you know that you have a claim against and that is discovered. You work for an employer, the employer has not paid you your wages on time, it was supposed to pay you on a monthly basis, and in first of that month has arrived, and you have not received your money, you have a claim for unpaid wages. So, in a lot of cases discoverability is a straightforward matter, but in a lot of cases it becomes very, very complicated.

Now to complicate matters further, there are exceptions to basic limitations period and I’ve given some examples. Example number one is that other legislation may show or may set out a different limitation period, for something else... and the common example is human rights code. In human rights code, if you have a human rights claim... the limitation period is one year, not two years and so if you have to bring a human rights application or an action simply based on human rights violations, then you actually have one year from the date of that injury to commence your legal proceeding. Now these exceptions are also covered in section 2 of the legislation.

So let’s look at Section 2 and it lists a number of other legislations, so, this act applies to claims pursued in court proceeding other than- you know- real property limitations act, judicial review Procedure Act, provincial offenses, so on and so forth, Aboriginal rights have different limitations period and whatnot. Sexual assaults you will see further down in the same legislation, in the limitations period, the sexual assaults have no limitations period. So, if someone has suffered sexual assault, then they can commence court action even beyond the 2 year basic period. Minors have no limitations, period and so there are specific sections that deal with minors in this legislation. Incapable persons who are legally incapable, they have no limitations period during the time that they’re incapable. Then what you also want to know is that there may be separate limitations periods against crown or municipalities. So, for instance, if you are in a car accident that was because of a pothole on the road and the road was not properly maintained by the municipality in which you’re driving... your probably... you don’t have two years, period. I think depending upon where you are, it could be as low as one week or two weeks within which you have to commence your court action. So, the so the limitations period vary significantly, so, you always want to be careful about the exceptions, so, that you are clear that your specific injury falls into the limitations period. Now, let’s talk about tolling or suspension of limitations period, quickly. This is dealt in Section 22 sub 3 and by all means, check it out. What this section 22 sub 3 allows, is that it allows the parties to suspend their limitations period or extend their limitations period by agreement... and when does it happen? When the parties are trying to find for example, non-judicial ways, to resolve certain issues. Let’s take the example of the friend who had borrowed money from you and he has not paid the time that he has promised to pay, when you threaten that person, and indicate that you wish you are going to commence a legal proceeding against that person to get a judgment against that... you may have some sort of, bilateral discussion, where the person may say has just found a job and he needs some time to save some money and pay you back and can we suspend the limitations period? So you can enter into an agreement whereby you can suspend the limitations period for a certain time period but then again, the suspension of imitations period by agreement in itself is a bit of a complicated matter and the courts have specific requirements on how you go about suspending that limitations period, so, you want to be careful that even when you’re suspending or tolling the suspension the limitations period you’re taking the right steps.

So, what is the message from this lecture? You must always consider limitations period first... as soon as you believe that you may have a claim against someone, the first thing you want to make sure is that are you within the time you can commence the legal proceeding... because if you’re out of the time period then you have a huge problem and then the concept of discoverability and all of the other things that I’ve talked about... they are relevant.

So, if you’re unclear about anything... you should consult a lawyer... I can tell you by way of experience that I have been consulted on limitations issues that were so complicated that they required many, many hours of research for me to be able to give my client a valid or reasonable opinion, in terms of whether they have a claim within the limitations period or not. So, it could get very complicated and you want to make sure that you are on the right side of the law. Just a question for you, for food for thought, we have two years basically imitations period... do you think that’s fair and I contrast that by ancient Greeks who had five years of limitations period and this is centuries ago, except for homicides and so why do we have two years’ limitations period? Consider the issue that in today’s day and age with the technological advancements that we have... the chances of finding evidence or keeping evidence is a lot more than ancient Greek. We have emails, text messages, documents, all these kind of things tape recordings, Google, Facebook, all these evidentiary pieces that may show or may be able to prove someone’s case or may allow the defendant to disprove the case. Is two years really an appropriate limitations period? I would love to hear your comments on that and if you have any questions or other comments or feedback a love to hear from you thank you for watching.