Flexibility In The Limitation Period

The Limitations Act, 20021 ("the Act") prescribed the time limit to commence a legal proceeding at two years after the day the claim was discovered, barring any exceptions outlined in the Act. Prior to the Act coming into force, the doctrine of special circumstances was in effect. This doctrine provided the courts discretion to extend a limitation period in situations where special circumstances arose. Since the inception of this Act, the special circumstances doctrine is no longer applicable. However, the courts in Ontario have established a number of ways to vary the rules in extending limitation periods and postponing the time which the limitation period begins to run.

In the past three to four years, the Courts have begun to further analyze the Act to find variability in determining the limitation period. Specifically, Section 5(1)(a)(iv) of the Act has been thoroughly considered. Section 5(1)(a)(iv) states:

Discovery

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; This provision is defined as the Appropriate Means doctrine which suggests that the limitation period is triggered when the Plaintiff knows two things:

that they have suffered a loss; and that a court proceeding is "an appropriate means to seek to remedy it" as stated in the section. Interpreting the section through the appropriate means doctrine provides the opportunity for parties to delay initiating the limitation period. Case law over the years have determined that there are two main exceptions to the straight-line application of the two year discoverability rule. The first exception to the two-year discoverability rule is as follows:

Where a Plaintiff has relied on the expertise and knowledge of a professional who has promised to repair a loss that they were responsible for, the limitation period is effectively tolled. In Gillham v. Lake of Bays (Township), 2018 ONCA 667, the Plaintiffs commenced a lawsuit against the Defendants for deficiencies in the construction of their cottage. The limitation period was delayed as the Plaintiffs relied on the Defendants' expertise and advice to 'wait and see' before they pursue any form of investigating the deficiencies. The Court of Appeal held that the Plaintiffs' reliance on the professional Defendants' advice was appropriate. As a result, the...