The Ultimate Limitation Period has Finally Arrived

By fcladmin

Although the Ontario Limitations Act, 2002 has been in force since 2004, section 15 of the Act, which provides for a 15-year ultimate limitation period has not had much practical effect on the law. However, this is all set to change this year.

The transition provisions of the Act have been interpreted to mean that where the underlying act/omission that is the basis of a claim occurred before January 1, 2004, the underlying act/omission will be deemed to have taken place on January 1, 2004.[1] It is from this point that the 15-year ultimate limitation period begins to run, effectively making 2018 the last year for plaintiffs to bring these claims before being statute-barred pursuant to the ultimate limitation period.

Up until the end of 2018, plaintiffs could bring claims arising from events that occurred before 2004 as long as the claims were brought within two years of being discovered pursuant to the standard limitation period. However, now that 15 years have passed since the Act came in force, plaintiffs will no longer be able to bring claims arising from pre-2004 acts/omissions, even if these claims were discovered recently.

Moving forward, for all claims where the underlying act/omission occurred after 2004, plaintiffs must bring their claims by the earlier of 15 years from when the underlying act/omission occurred or within 2 years of the claim being discovered pursuant to section 5 of the Act.

There will be few exceptions to this rule. The ultimate limitation period will not run where the claim is not discoverable because of fraudulent concealment.[2] The ultimate limitation period also does not begin to run if a person is incapable or a minor and not represented by a litigation guardian. Additionally, there is no limitation period for certain proceedings listed in section 16 of the Act, including claims related to sexual assault.

Based on section 18 of the Act, a third party defendant could still be liable for a claim for contribution and indemnity more than 15 years after the act or omission occurred because the limitation period for such a claim will only begin to run once the defendant is served with a statement of claim.

As of the date of this article, there have been no reported cases since January of 2019 in which a defendant has relied on section 15 of the Act to defend against a claim. However, we will likely see more of these in the future.

[1] Section 24(5); York Condominium Corporation No. 382 v Jay-M Holdings Ltd., 2007 ONCA 49.

[2] Section 15(4).