June 21, 2023
Ontario’s Limitations Act, 2002 incorporates the concept of discoverability. Although in most situations, you are presumed to have discovered your claim on the date of your injury or breach of contract, if you are unaware of the facts, the time limit to sue (usually two years) may be delayed.
The Act contains another little wrinkle – you are not presumed to have discovered the claim until you know that a proceeding is the appropriate means to seek a remedy.
How do you know when a proceeding is appropriate?
Rahmal-Shah v. Jones et al. is a Superior Court of Justice case that provides some guidance. The plaintiff was suing his ex-girlfriend and her parents for fraud and other claims. The judge refers to an earlier Court of Appeal decision which held that for there to be a delaying effect, there must be an explanation in law as to why the plaintiff did not know that commencing a proceeding was appropriate at an earlier time.
However, each case is decided on its own facts and the judge conducts a very thorough factual review including an item-by-item review of emails between the parties which showed clearly that the plaintiff was aware of the necessary facts more than two years before he commenced his claim.
The claim was commenced December 7th, 2021. As early as August 10th 2018, the plaintiff had emailed the defendant stating that the defendant’s representations were false and that he was being exploited for money.
The judge also points out that the appropriateness of commencing a proceeding includes “taking into account the particular interests and circumstances of the plaintiff.”
The plaintiff was considered a sophisticated party because he had multiple university degrees, including two degrees in law. As a lawyer, he should have known that commencing a proceeding was an appropriate means to obtain a remedy for false representations and exploitation.
Does this mean that you have to be a lawyer to know that it is appropriate to commence a proceeding? No.
What matters is your sophistication, by which the court means your level of education and relevant experience in the area.
If you have enough information and choose to consult a lawyer, this likely means that you are aware that a proceeding may be appropriate unless that lawyer tells you otherwise.
Limitation periods are not discretionary – if you missed the time limit deadline, your claim will not be allowed to proceed. Mr. Ramal-Shah may have brought an exaggerated claim, but there were solid facts that supported his allegations, and you might think he at least deserved his day in court.
Missing the time limit deprived him of that opportunity.
- Most claims will be lost due to limitations two years after the wrongful act took place if you do not commence a proceeding in time.
- Though that time limit may be extended in some circumstances, courts are reluctant to grant extensions.
- If you have any suspicion that you may want to bring a court action, getting legal advice early is your best bet.
- Although self-representation, as Mr. Rahmal-Shah did in this case, is growing in popularity, we do not recommend it except sometimes in Small Claims Court.
- Superior Court deals with serious claims and serious issues. In addition to limitations issues, there are complex rules of procedure and subtle rules of evidence. Considerable legal knowledge is required to know what claims to plead, what facts are necessary to prove those claims, and what evidence is necessary to prove those facts.
- A lawyer, particularly an experienced litigation lawyer, understands the witnesses and documents that will be necessary to tell your story effectively.
- Consulting a lawyer at an early stage will not only protect you from missing your time limits, but it may also help preserve evidence for your case which might otherwise be lost.
WHAT WEILERS LLP CAN DO TO HELP YOU
The litigation team at Weilers LLP has the knowledge, experience, and sound judgment to know when a proceeding is appropriate. Consulting us at an early stage is your best assurance that your proceeding will be commenced in a timely manner.
Whether you are suing or being sued, if the case is serious and you want serious lawyers, we may be the right lawyers for you.