Documentation:Torts/Limitation

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Intimate partner violence • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Relational theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Limitation

The law of limitation concerns statutory time-bars on bringing civil claims. Limitation periods dictate how long a plaintiff has to commence a lawsuit. If a party misses the limitation period and does not file their action in court within the prescribed time frame, they will "be unable to ever bring [their] dispute to Court".

History of limitation periods

Professor Samuel Beswick addresses how the Canadian provinces have undergone three waves of reform of limitation statutes: from consolidation, to introduction of the discoverability rule, to reconsolidation.

Elements of the limitation defence

In Canada, every province has statutes prescribing time-bars on civil claims, as well as exceptions to those time-bars.

The limitation periods in British Columbia are set out in the Limitation Act. Limitation periods for other countries and Canadian provinces can be found here.

There are two types of limitation periods in BC: basic and ultimate limitation periods. Generally speaking, in BC the basic limitation period on tort claims is two years from the date a claim was discovered, subject to a 15-year ultimate backstop limitation period that runs from the date the wrong occurred.

Basic limitation period: This is the general limitation period, subject to exceptions. In BC, the basic limitation period is 2 years. The basic limitation period starts when a claim is "discovered":

Elements of BC's Discoverability Rule
A claim is considered to have been "discovered" when a person knew or reasonably ought to have known all off the following:
1. That the injury, loss or damage occurred
2. That the injury, loss or damage was caused or contributed to by an act or omission (that is, that something caused the injury)
3. 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
4. That a Court proceeding would be an appropriate means to seek to remedy the injury, loss or damage

In the news
Public critique on Newfoundland and Labrador's Limitations Act
Newfoundland and Labrador "is one of only two provinces in Canada to have a statute of limitations on physical abuse."Those in the province "have a strict timeline to come forward with lawsuits—either two years after the abuse happened, or in the case of child abuse, two years after the victim turns 19." Newfoundland and Labrador does make an "exception for cases where the effects of the abuse are not discovered until later in life—through therapy, for example—but that's capped at 10 years after the abuse, or 10 years after a victim turns 19." One lawyer has challenged the Limitations Act in Court, after her client was unable to sue regarding the physical abuse he endured as a child due to the limitation period set on physical abuse by the province. The lawyer, Lynn Moore, is "arguing the trauma [her client] endured is a mental disability, and that by not allowing him a chance to sue, he's being discriminated against under the Canadian Charter of Rights and Freedoms."

Ultimate limitation period: A backstop repose rule provides that even when a claim has not been discovered, a party's claim cannot be made after a certain amount of time. In BC a "claim cannot be made for a wrongful act that occurred more than 15 years before it was started ... regardless of when the claim was "discovered"". The ultimate limitation period starts when cause of action arises.

Transition rules

Following reform of BC's limitations regime, the new statute established transition rules to ensure fairness regarding limitation periods for older cases. A flowchart created by the Ministry of Justice can be found here for further clarity.

The former Limitation Act had an ultimate limitation period of 30 years, so for fairness purposes, this was carried over in a "transition rule" for the benefit of claimants.

Relevant statutes

The defence of limitation is governed by and gains its authority from statute.

Limitation Act, SBC 2012
Limitation Act, SBC 2012, c 13.
3. Exempted claims (1) This Act does not apply to the following: *** (b) a claim for possession of land if the person entitled to possession has been dispossessed in circumstances amounting to trespass; *** (i) a claim relating to misconduct of a sexual nature, including, without limitation, sexual assault, (i) if the misconduct occurred while the claimant was a minor, and (ii) whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period; (j) a claim relating to sexual assault, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period; (k) a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant (i) was a minor, or (ii) was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery; *** (2) This Act does not apply to a claim or court proceeding for which a limitation period has been established under another enactment, except to the extent provided for in the other enactment. 6. Basic limitation period (1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. *** 8. General discovery rules Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. 21. Ultimate limitation period (1) Subject to Parts 4 and 5, even if the limitation period established by any other section of this Act in respect of a claim has not expired, a court proceeding must not be commenced with respect to the claim more than 15 years after the day on which the act or omission on which the claim is based took place. ***

Other limitation statutes in Canada

British Columbia: Statute of Limitations, RSBC 1897, c 123 (repealed). British Columbia: Statute of Limitations, RSBC 1960, c 370 (repealed). Federal: Federal Courts Act, RSC 1985, c F-7, s 39; Crown Liability and Proceedings Act, RSC 1985, c C-50, s 32. Alberta: Limitations Act, RSA 2000, c L-12. Manitoba: The Limitation Act, CCSM c L150. New Brunswick: Limitation of Actions Act, SNB 2009, c L-8.5. Newfoundland & Labrador: Limitations Act, SNL 1995, c L-16.1. Nova Scotia: Limitation of Actions Act, SNS 2014, c 35; Real Property Limitations Act, RSNS 1989, c 258. Ontario: Limitations Act, SO 2002, c 24. Prince Edward Island: Statute of Limitations, RSPEI 1988, c S-7. Québec: Civil Code of Québec, CQLR c CCQ-1991, arts 3131 and 2922. Saskatchewan: The Limitations Act, SS 2004, c L-16.1.

Exemptions and extensions

Changing the Limitations on Sexual Abuse Cases with Simona Jellinek
In this episode of Butter Torts, A Truly Canadian Legal Podcast, guest Simona Jellinek discusses limitation periods in sexual abuse and assault cases.

In British Columbia and other jurisdictions, the statute prescribes exceptions to the general limitation period scheme for certain situations.

Exemption from limitation

There are certain cases that allow an exemption from the defence of limitation, so that it does not apply to bar a claim. They are all listed under section 3 of the Limitation Act. A few notable examples include:

• Sexual assault cases
• Domestic assault cases

Extension of limitation

There are situations in which an extension of the ordinary limitation period is allowed, such as in cases involving:

• Minors (time does not run until someone is 19 years of age)
• Persons under disability
• Fraud or concealment by defendant (the date of discoverability is the appropriate date)

Discussion questions

• Why has the legislature established civil limitation statutes? Why are there comparatively fewer statutes establishing limitation rules for crimes?
• Should judges have a discretion to waive limitation statue rules in compelling cases?