The Uncertainty Behind Ontario's Limitation Periods

The two-year limitations period under Ontario law has always contained a certain degree of variability because the two years is measured on the basis of discoverability. But a recent trend of case law from the Ontario Court of Appeal has infused uncertainty into the two-year claims bar, calling into question when two years really means two years.

Whether this trend is welcome news depends on where you are standing. For plaintiffs, it is a welcome development that potentially expands the time in which they must bring a claim. Defendants, on the other hand, now lack the certainty that after two years—even after the plaintiff knows about the events underlying a claim—a claim can no longer be brought.

What is driving the uncertainty?

The Limitations Act was introduced with the intention of promoting certainty for Ontarians. It provided a clear limitation period of two years after the plaintiff discovered the claim or should have discovered the claim. This allowed plaintiffs to know by which date their claim must be filed, while providing defendants with the certainty that after two years, a claim can longer be filed against them.

However, this certainty has been turned on its head due to the Court's recent focus on a once dormant provision of the Limitations Act. Section 5(1)(a)(iv), known as the "appropriate means" doctrine, provides that the two-year limitations clock begins to run only when the plaintiff knows that (i) it has suffered a loss; and (ii) that litigation in court is an appropriate means by which to remedy that loss.

When will a limitation period be extended?

Recent decisions from the Court have provided some indication of when a limitation period may be extended by way of the appropriate means doctrine. While by no means exhaustive, the Court has seemingly created numerous exceptions to the straight-line application of the two-year discoverability rule.

When a plaintiff has relied on the superior knowledge and expertise of a defendant who indicated to the plaintiff that it was fixing the damage it had caused, the limitation period will effectively be tolled. For example, in Brown v. Baum 2016 ONCA 32, the limitation clock did not begin to run when the defendant, a medical doctor, continued to treat the patient to correct the original problems he had caused three years earlier. The Court came to the same conclusion in Chelli-Greco v. Rizk, 2016 ONCA 489, when a dentist told a patient that he would "endeavor to repair and...