Deadlines are involved in limitation periods.
Limiting the Time Allowed for Filing a Lawsuit
Page last modified : December 06 2023
How Much Time Does Someone Have to File a Lawsuit?
In most cases, the time limit for filing a lawsuit is two years. Some exceptions apply to specific types of cases or legal issues. Furthermore, what is known as 'discovery' affects the date on which the time clock begins.
Recognizing that the Statutory Limitation Periods for Filing a Lawsuit Are Deadlines After Which Rights Expire
Limitation periods are simply time constraints that limit when legal proceedings can be brought.
commenced.If you wait too long, you will lose your right to file a lawsuit.The Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, in Ontario, sets a general limitation period of two (2) years, with some exceptions, after which a right of action, or the legal right to suit, expires and is eternally lost.The Limitations Act, as a broad act, may be superseded by additional Acts that handle specific categories of issues and specify restriction periods unique to those issues.
The fundamental goal of limitation periods is to provide peace of mind to potential defendants by allowing them to rest easy knowing that the risk of a lawsuit has passed and any right of action has grown stale or lapsed. As a result, there is no need to save prospective evidence, and a retained lawyer or paralegal may be released. In essence, the potential defendant is freed of future stress or concern, whereas once a limitation period has ended, the right to pursue legal action is statute barred, which means disallowed. If a legal action is filed outside of this time frame, it will almost certainly be dismissed because there are limited exceptions to limits restrictions.
Discovery Principle
The discovery principle is a common limitation rule that states that the limitation clock starts only when the cause of action (event giving rise to a right of action) becomes known to the potential plaintiff or should be discovered to the potential plaintiff by reasonable effort. Essentially, the discovery principle states that a limitation period may begin and thus expire only when a potential plaintiff fails to pursue a cause of action, either with knowledge or by constructive knowledge. What is meant by constructive knowledge is that a reasonable opportunity to obtain actual knowledge was passed up without a properly diligent effort, or as stated, “… When a plaintiff fails to exercise the diligence that a reasonable person would, the claim is potentially discoverable earlier than it otherwise would be.”
In contract law matters, the discovery date is generally the date in which a contract is breached. For example, if a contract involving a debt exists, and where there is a schedule for payments, or a specific date, the limitation period begins on the date the contract is breached by a failure to make proper payments. If the contract is a demand loan, the limitation period begins upon demand of repayment. In this example, if there is a breach, the right of action to collect the debt will exist for only two years, albeit with a few exceptions.
In tort law matters, the discovery date is generally the date in which the incident giving rise to a cause of action occurred unless the incident occurrence is unknown to the potential plaintiff. If the incident occurrence is unknown, the limitation period is suspended. Only when the potential plaintiff learns of the cause of action or should have learned of the cause of action by reasonable diligence, does the limitation period begin.
It is also important to appreciate that reasonable diligence requires an reasonable effort towards discovery. As said in at Laurent-Hippolyte v. Blasse et al., 2018 ONSC 940 at paragraph 26, “Due diligence is not about information arriving on one’s doorstep – it is about actively taking steps outside the door.“
Of course, it is also important to bear in mind that when a cause of action is “discovered” is somewhat objective. There is a considerable volume of case law that helps to define what “discovered” actually means including the case of Consumers Glass Co. v. Foundation Co. of Canada Ltd., 51 O.R. (2d) 385 which suggests that more than just some knowledge of the wrong and harm is required before the limitation clock starts ticking; instead, the plaintiff must have sufficient knowledge to bring litigation. While this makes sense in that it appears reasonably fair that the limitation period clock should start only when the plaintiff could begin litigation, the ambiguity in when the plaintiff has ‘enough’ to begin litigation can be very frustrating to a defendant. This concept whereby the clock begins only when the plaintiff obtains ‘enough’ to begin litigation follows the decision in Sparham-Souter et al. v. Town & Country Developments (Essex) Ltd. et al., [1976] 2 All E.R. 65 wherein Lord Denning stated at page 68:
Accordingly, the operative key phrase from the decision of Lord Denning is, “… capable of suing …“. Again, the mere knowledge of a wrong and harm may be insufficient to bring an action. It would seem that once a plaintiff has knowledge of a wrong and harm, the Plaintiff may also still have time to gather, subject to reasonable diligence, the necessary evidence.
With all the above said, it remains possible that ‘discovery’ will be deemed as a date other than the first moment of awareness of the wrongdoing and instead allow a reasonable time for a Plaintiff to carefully review the appropriateness of commencing litigation. In this respect it was said by the Supreme Court in Novak v. Bond, [1999] 1 S.C.R. 808 at paragraph 85:
…Litigation is never a process to be embarked upon casually and sometimes a plaintiff’s individual circumstances and interests may mean that he or she cannot reasonably bring an action at the time it first materializes. This approach makes good policy sense. To force a plaintiff to sue without having regard to his or her own circumstances may be unfair to the plaintiff and may also disserve the defendant by forcing him or her to meet an action pressed into court prematurely.
Regardless of the above, it remains important that a potential Plaintiff act promptly upon becoming aware of wrongdoing and the corresponding harm, or potential for harm. Often, a potential Plaintiff will engage in discussions with a potential Defendant with the hope of resolving a matter without taking legal action. Unfortunately, many potential Plaintiffs will let the clock run out during resolution discussions. The potential Plaintiff will then attempt to argue that the clock runs from the time the potential Defendant failed to remedy the issue in dispute rather than when the issue in dispute was initially discovered. This argument will fail in law; Reynolds v. Harwood Plumbing, 2017 ONSC 4899.
Suspension by Concealment
Generally, where a potential defendant wrongfully conceals facts that would reveal a cause of action to a potential plaintiff, the running of the limitation period is suspended. Similar to the rule in the discovery principle, if the potential plaintiff is unaware that a cause of action exists, the limitation period clock waits or is “tolled“. However, the key difference between the Suspension by Concealment rule and the Discovery Principle rule is that where a potential plaintiff becomes somewhat aware that a cause of action has occurred yet is impaired by the potential defendant’s concealment from fully gathering the facts necessary to commence legal proceedings, all applicable limitation periods are suspended. The reason for this rule is simply to prevent a potential defendant from using unjust concealment tactics to avoid, and eventually void, legal actions.
Cause of Action, continuing
In various types of tort claims, causes of action may accrue or ‘roll over’. For example, in a trespass claim, such as where a potential defendant neighbour has parked an ‘eyesore’ of an automobile on the potential plaintiff neighbour’s property, the cause of action accrues each day in which the automobile remains in trespass.
The cause of action is continually reborn until the trespass ends at which time the limitation period will begin. Similarly, where a cause of action involves a continuous course of conduct or series of acts, the cause of action accrues and the limitation period begins upon the final act rather than the first. Accordingly, each individual but related incident becomes part of a collective incident whereby the right of action for all involved incidents expires only when the limitation period has passed when calculated from the final act. The continuing cause of action was defined in the case of Hole v. Chard Union, [1884] 1 Ch. 293 at p. 296 as “a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.” Although this issue is uncommon, a good number of cases cite Hole including Georgian Glen Developments Ltd. v. Barrie (City), 2005 CanLII 31997 wherein it was said :
Recently, in Torres v. Export Packers, 2018 ONSC 726, while citing the Court of Appeal case of Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004, further analysis to expand on what constitutes as a continuing cause of action were discussed including that the factual issues will often need determination at Trial before the legal issue of continuing cause of action can be evaluated. Specifically, it was said in Torres:
Settlement Negotiations
Another restriction to the running of a limitation period involves promises made during settlement negotiations whereas the agreement, usually a promise of payment, causes a ‘promissory estoppel’. The doctrine of promissory estoppel, as applied to limitation expiry concerns, prevents potential defendants from entering into settlement negotiations in bad faith with the ulterior motive of delaying the potential plaintiff from commencing legal proceedings and then subsequently attempting to plead that the limitation period expired. Simply stated, if the defendant reneges on promises made during settlement negotiations, and the promises were reasonably relied upon by the defendant who then delayed bringing legal action based on the promises, the limitation period may run from the date the defendant reneged on the subsequent promise rather than the date of the original wrongdoing. This viewpoint is found in Danby v. Michaud, 2014 CanLII 12060. However, appeariing to the contrary is the viewpoint found in Bryenton v 7017103 Canada Inc., 2014 CanLII 100257 where it is stated:
Summary Comment
With the principles applicable to limitation periods, the safest way to bring litigation is to avoid dancing with the limitations date. By bringing litigation forward as diligently as possible; however, without such haste as to fail in preparation, the risk of losing a right of action is greatly reduced.
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Shemesh Legal Offices serves clients located in Hamilton, Niagara Falls, Burlington, Stoney Creek, Milton, among other places.