Why Limitation Periods are Scarier than Tyra Banks

Law for Millennials by Kim Appotive

Have you ever played the game “Two Truths and a Lie”? You have to figure out which one of the stories is a lie. Let’s play a similar version to this but a law related one. I’m going to provide three scenarios and one of them meets the limitation period and the other two do not. Are you ready to play?

Guess which scenario is in time to sue the wrongdoer.

The Law

Before you look at the scenarios, here is the law that sets out limitation periods.

limitation period is the period of time that you can bring your claim to court.

A claim is an allegation that one party wronged another party and should compensate them for this wrong.

If you don’t bring your claim within that time, the other side will use the defence that your claim is past the limitation period and your claim will be dismissed.

Limitation Periods are set out in the Limitations Act 2002 (the “Act”).

The Act came into effect in 2004 and sets out a basic limitation period of two years and an ultimate limitation period of fifteen years.

The basic limitation period is TWO YEARS and runs from when the claim is DISCOVERED by the person making the claim (the “claimant”).

It is two years from when the claimant has KNOWLEDGE that an act or omission has caused them loss, injury or damage (s.5(1)).

It is also when a reasonable person in the shoes of the claimant has this knowledge (s.5(1)(b)).

In addition, going to court must be an appropriate choice of venue to remedy this loss, injury or damage (s. 5(1)(a)).

The Act was also amended in 2006 to allow businesses to change the two-year limitation period in a contract (ss. 22(5) and (6).

Scenarios

# 1: Two dogs that looked like wolves came into my backyard and attacked me and my dog.

I have not started my claim and it has been four and a half years since the attack.

#2: In March 2009, I had surgery that didn’t go well. I did not recover immediately after and kept returning to the doctor to fix the original issues.

By July 2009, I believed that the doctor made a mistake.

My last surgery was two years ago. I have not started my claim and it has been over four years ago since my first surgery.

#3: In October, there was a skunk-like smell that was so pungent it destroyed a ton of my inventory.

I contacted my insurance company in December and they denied my claim.

I have not started my claim and it has been over a year and a half ago since my inventory was destroyed.

Most would think only #3 is in the running because it is the only scenario where the incident occurred less than two-years ago.

There is actually only one scenario in time and it is not #3.

Scenario #1

#1 is out of time. This one happened to me! I was in the backyard letting my dog out and two Siberian huskys came out of nowhere.

One husky had a nibble on my wrist and the other went for my dog. Luckily, we were both okay as we were able to run in the house, just some scratches!

When did my limitation period begin?

It began the day I discovered my injuries. In my case, the moment the act of the dogs attacking me is when I discovered my injuries.

In fact, the Act presumes that the same day the wrongdoer commits an act is the same day the claimant knows of the harm it caused, unless this presumption is proved otherwise (s.5(2).

If there is a delay, then it is up to the claimant to prove this in court.

Since the incident happened over two years ago, it is statute barred, which means it is past the limitation period.

I never sued the dog owner and now its too late.

Scenario #2

#2 is in time. This is a bit trickier.

This is the case of Brown v. Baum. Ms. Brown went to Dr. Baum for breast reduction surgery in March 2009.

Immediately her wounds did not heal and if you want to read the gory details (and the whole decision of the judge!) you can find it here.

Ms. Brown returned to Dr. Baum for follow up consultations and more surgeries. Her third surgery was end of May and she had another July 2009. It was by July 2009 that she believed Dr. Baum made a mistake and she stated he “didn’t put my nipples back on.”

She continued to have further consultations (and surgeries) with Dr. Baum.

Her last surgery was in June 2010. She sued much later on June 2012.

When would Ms. Brown’s limitation period begin?

While she did not heal immediately after the first surgery, this is not the time her limitation period began. At this point, she didn’t consider going to court and suing her doctor while he is providing her care.

This would not have been an appropriate means to remedy her injury! She was hopeful that further surgery would correct the issue.

Even though by July 2009 she believed the doctor made a mistake, she still did not consider it to be legally appropriate to sue her doctor as she continued to seek treatment.

She remained hopeful that her doctor would fix the problem.

In an interesting decision, Justice Mew stated that Ms. Brown’s limitation period wouldn’t commence until her last surgery in June 2010, as he stated:

“[20]…A reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated.”

Ms. Brown was just in time to submit her statement of claim, which put simply is her “application” to the court saying she is suing a person.

She was in time because on the last day of her surgery, suing her doctor in court was legally appropriate.

Law for Millennials by Kim Appotive

Scenario #3

#3 is OUT. Shocker I know.

This is the case of Boyce v The Co-Operators General Insurance Company

Ms. Boyce owned a fashion boutique and in October 2010 she noticed a foul odour. She had to close up shop, clean up and throw away the smelly inventory.

She immediately contacted her insurance company, Co-Operators. Co-Operators claimed the smell was from a skunk and not covered.

Ms. Boyce claimed her business was vandalized, which is covered.

She filed a proof of loss claim December 2010 but didn’t get around to filing her statement of claim (her “application” to court to sue) until February 2012, more than one year but less than two years after the incident happened.

When does her limitation period begin?

Remember when I mentioned that the Act was amended in 2006 to allow businesses to contract out of the two-year limitation period (ss. 22(5) and (6)?

This means that businesses can put a term in their contract that expressly shortens (or less likely lengthens) the basic two-year limitation period.

Ms. Boyce and Co-Operators had an insurance contract which expressly stated that there was a one-year limitation period.

According to her contract, she had one year to bring her claim and the court found this provision to be “clear and unambiguous.”

Was this insurance contract a business agreement?

According to the Act, only business agreements can contract out of the two-year limitation period and impose a different timeframe in the contract.

An agreement for “personal, family or household purposes” is not considered to be a business agreement compared to an agreement for “business purposes”

(s. 22(6) Limitations Act 2002Consumer Protection Act, 2002).

Since this insurance contract was for business purposes, it is considered to be a business agreement and can contract out of the two-year limitation period.

The Hon. Quigley J. found that Ms. Boyce was out of time because her insurance contract used clear language when stating the one-year limitation period and it was a business agreement.

Clear and unequivocal language + business purposes = contract out of Act (can change two-year period in contract)

Had Ms. Boyce’s home been skunked, then she would have been in time to sue the insurance company because it would have been an agreement for “personal, family or household purposes.”

Therefore, even if the contract tried to implement a shorter time frame it would not have been upheld because

only business agreements can change the two-year period in a contract. 

Personal, family or household purposes = not possible to contract out of Act (can’t change two-year period in contract)

This is very important to know because your timeframe to sue an insurance company might be shorter than two-years depending on the language and purpose of the insurance contract!!

This case went to the Court of Appeal because the law was murky about whether multi-peril policies (policies that cover many bad things happening such as flood and vandalism) can contract out of the two-year limitation period.

Policies specifically for fire insurance (one peril) have a one-year limitation period set out in a different Act (Insurance Act, s. 148(14)).

There are many scenarios

This is a good time to bring up some points that are beyond the scope of this blog but good to keep in mind when thinking about limitation periods.

The Limitation Act 2002 is not the only Act that discusses limitation periods.

There are many Acts for specific court proceedings that have different limitation periods.

For example, you have three months to bring a claim for libel (Libel and Slander Act, s.6)). A lengthy list of specific statutory limitation period provisions is set out in a schedule to the Act.

Do not confuse limitation periods with notice periods.

Some Acts impose a timeframe to provide written notice of your claim (before you even bring your claim).

An interesting one is if you tripped on ice on the public sidewalk and hurt yourself, you have to write to the municipality within 10 days of your injury (Municipal Act, 2001, s. 44(10)). Now you’re starting to see why we have lawyers!

The ultimate limitation period of 15 years runs from the date the act or omission took place (rather than the date of discovery) (s.15).

It overrides the basic two-year limitation period and the claim expires after 15 years even if it is not discovered.

Scarier than Tyra?

I hope you enjoyed playing my version of truth or dare!

Limitation periods provide certainty and make sure that people are not left with an indefinite period of liability.

Limitation periods are complicated and if you want to pursue a claim you should seek legal advice as soon as possible.

In the legal world limitation periods are VERY important. They are terrifying as a person can unknowingly be out of time before they even get a chance to make their case.

You decide which one is scarier, Tyra Bank saying “you’re no longer in the running to to be America’s Next Top Model” or a judge saying “you’re no longer in the running to bring your claim.” 

10 thoughts on “Why Limitation Periods are Scarier than Tyra Banks”

  1. Until I read this I had not even thought that were time periods to sue someone (although it makes sense that there is). Now I know what to look out for.

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