Limitation Periods

The Discoverability Rule: When a limitation period begins 

The rule is that the limitation period starts to “run” when the claim was discovered. That means that you have two years from the discovery of the claim to start an action.

A claim is considered to have been “discovered” when a person knew or reasonably ought to have known all of the following:

• That the injury, loss or damage occurred
• That the injury, loss or damage was caused or contributed to by an act or omission (that is, that something caused the injury)
• That the act or omission was that of the person against whom the claim is or may be made (that is, that it was the defendant who caused the injury) and
• That a Court proceeding would be an appropriate means to seek to remedy the injury, loss or damage

Often, these things all happen at the same time. For example, if there is a car accident, a plaintiff is (or reasonably should to be) aware of the injury, loss or damage, that it was caused by the car accident, that the other driver caused the injury, and that they could sue.

Importantly, the Court will consider not only what the plaintiff actually knew. They will also consider what they reasonably should have known. It is not enough for a plaintiff to say that they had no idea, for example, that they could sue the other driver in a car crash. This is something they reasonably should have known.

However, sometimes it is more difficult to figure out when a claim was discovered. It may be that wrongful exposure to a chemical does not cause any sickness until many years after the exposure. In such a case, the claim would only become “discoverable” when the plaintiff reasonably should have become aware of the disease, its cause, and the person at fault for the cause. In that way, a claim might relate to something that happened quite a while ago.

Ultimate Limitation Periods

S.21 of the Limitation Act also sets out an “ultimate” limitation period of 15 years. This means that as a general rule, a claim cannot be made for a wrongful act that occurred more than 15 years before it was started. This is true regardless of when the claim was “discovered”.

So, if you only now realized that you had an injury and a claim relating to something that happened more than 15 years ago, this could be barred by the ultimate limitation period.

However, the Limitation Act previously had a 30-year ultimate limitation period. The legislator decided it would not be fair if losses and injuries already suffered were suddenly governed by the new 15 year rule. So the legislator put in a “transition rule”.

The transition rule says that if your claim was not already extinguished by the old Limitation Act and:

1. Your claim was “discovered” before the New Limitation Act came into force: then the old Limitation Act applies or
2. Your claim was not “discovered” before the New Limitation Act came into force: then the new “ultimate limitation” applied to you is 15 years from June 1, 2013 (the day when the new Limitation Act came into force.