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Applying the Limitations Act to claims made in Ontario. Longo v. MacLaren Art Centre Inc., and the two-year rule.

The Limitations Act, 20021 (the “Act”) requires that claims in Ontario be commenced in court within two years from the date that you first discover your injury, loss or damage. However, there are many exceptions and many more ambiguities to this law. The best way to make sure you start your claim on time is to seek legal advice regarding your specific fact scenario as soon as possible so as not to be faced with a statue barred claim.

Section 4 of the Act, provides that, “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” [emphasis added] In other words, you have two years to commence your claim once it’s “discovered”. A problem faced by many claimants is that reasonable people can disagree when a claim is, or ought to have been, “discovered”.

Section 5 of the Act attempts to clarify when a claim is “discovered” and provides, among other things, that:


(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Essentially, you have two years from the date that you, or a reasonable person with your abilities, knew that you were injured, suffered a loss, or incurred damages. Notwithstanding the apparent clarity of the law, many cases are won or lost based on missed limitations periods. These cases regularly make their way up to the Ontario Court of Appeal.

In the recent Ontario Court of Appeal decision of Longo v. MacLaren Art Centre Inc.2, the Plaintiffs owned a plaster sculpture called ‘Walking Man’ thought to have been created by Auguste Rodin. The Plaintiffs had loaned Walking Man to the Defendant, a museum, in 2000. Unfortunately, Walking Man was extensively damaged, presumably while under the care of the Defendant.

On November 19th, 2009, the Plaintiffs commenced an action against the Defendant seeking  $500,000.00  in  damages  for,  among  other  things,  negligence  and  breach  of contract. The Defendant claimed that the Plaintiffs’ action was statute-barred as they had commenced the action more than two years after they knew, or ought to have known, that Walking Man was damaged.

The Defendant brought a motion for summary judgment seeking an order dismissing the Plaintiffs’ claims as statute barred. The Affidavits of all parties set out the extensive timeline in an attempt to figure out who knew about the damage to Walking Man and, more importantly, when they found out the extent of the damage. Justice DiTomaso granted the motion and found that the claim was statute barred, relying extensively on a telephone call in September 2007 that would have alerted the Plaintiffs to the damage.

However, at the Court of Appeal Justice Hourigan allowed the appeal finding that the claim was not statute barred. Justice Hourigan found that Justice DiTomaso made the finding based on a misapprehension of evidence in relying on the September 2007 telephone call as the Defendant did not provide evidence from the person who actually made the call to the Plaintiffs.

Justice Hourigan also held that a plaintiff is required to act with due diligence in determining if he or she has a claim and must act reasonably in investigating whether a claim exists. In fact, a plaintiff need not even be certain of a potential defendant’s responsibility for an act or omission that caused or contributed to a loss before the two- year limitations clock begins ticking.

Although the Plaintiffs were ultimately successful, these lengthy and costly steps in the proceeding may have been avoided if the Plaintiffs had taken a more active approach in identifying their rights and possible claims against the Defendant more quickly.

Apart from the two-year limitations period in the Act, there are at least forty-five other statutes with their own limitations periods that can trump those in the Act. These limitations periods (which include a variety of different types of steps) range from eight days to fifteen years. Depending on your particular case, these other limitations periods could apply. An initial legal analysis of you fact scenario provides you with an understanding of which limitations periods apply to your case and how best to proceed.

1 SO 2002, c 24, Sch B.

2 2014 ONCA 526, 2014 CarswellOnt 91