Limitations on Civil Actions

For years, there has been a broad range of different limitation periods that apply to different professions, but there never appeared to be a compelling reason for these differences. For example, architects can generally be sued up to six years after “the cause of action arose”. On the other hand, police officers and public authorities must generally be sued within six months. Municipalities must receive notice of an action within ten days for counties or townships, or seven days for urban municipalities, and the action must be commenced within three months of the injury or loss, which applies to most “slip and fall cases” for example. Health care practitioners generally must be sued within one year from the date that the person commencing the action “knew or ought to have known” the facts upon which negligence or malpractice is alleged. The same is basically true for engineers. Recognizing that there is really little reason for distinguishing between professions, the Government of Ontario recently passed a new law that generally applies a two-year limitation period to most of these sorts of claims. It is intended that the two-year rule will apply to virtually all practitioners, regardless of their profession. There will still, however, be a number of exceptions. For example, the basic two year limitation period does not run while the person with the claim is unable to pursue it because the person is an unrepresented minor, or is incapable. Time also does not run during the life of an agreement to have an independent third party resolve or assist in resolving the claim. Further, there are special rules for claims based on assault and sexual assault. In those cases, the basic limitation period does not run while the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition. Indeed, a person who has a claim based on assault and who, at the time of the assault, had an intimate relationship with or was dependent on one of the parties to the assault, is presumed (unless the contrary is proved) to have been incapable of commencing the action earlier. The same is true for allegations of sexual assault. There are in fact no limitation periods for a number of proceedings, including enforcing court orders, support claims under the Family Law Act, proceedings arising from sexual assault in special circumstances and (sadly) proceedings to recover money owing in respect of certain student loans, awards and grants.

While it is useful to have a more consistent limitation period, the number of exceptions that remain will still make it important for persons making claims to seek legal advice, and for practitioners facing claims to obtain it. The government has recently announced that this new legislation will be proclaimed into force on January 1, 2004. Limitation Periods and Regulators

The general rule for regulators is that there is no limitation period on complaints made to regulators. Theoretically, it does not matter when the alleged malpractice or other misconduct took place, provided that it was defined as misconduct at the time that it allegedly occurred.

Having said that, the further back in time that the alleged event took place, the more difficult it will likely be to prove that the event or events actually took place. Time has a way of eliminating evidence, whether oral or written. For example, witnesses’ memories fade and important documents are destroyed. While it is not impossible to prosecute old complaints, it is usually more difficult to do so and it is usually easier for a practitioner to argue that it is unfair to prosecute old complaints because they are unable to make a full answer and defence.

In summary, because of the number of exceptions to all of these rules, practitioners will wish to obtain specific legal advice whenever they are faced with any claim, whether civil or regulatory. While it may appear that a claim is “statute barred”, the number of exceptions make it necessary to ensure that a practitioner is protected, as both courts and regulators are often reluctant to tell a complainant or a plaintiff that their complaint cannot be heard on its merits because of the passage of time.

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