Case Annotations from Limitations Periods Charts

Family Law Act

Family Law Act*
Equalization net family property
7 (3)
2 years, 6 years, 6 mos

* See McConnell v. Huxtable, 2014 CarswellOnt 1152, 2014 ONCA 86, [2014] O.J. No. 477 (C.A.) in which the Ontario Court of Appeal clarifies the relationship between the Limitations Act, 2002 and the Real Property Limitations Act in the context of unjust enrichment claims between common law spouses.  The Court of Appeal had to decide: (a) whether the two year limitation period in the Limitations Act, 2002 applied, thus rendering the action statute barred; (b) whether the ten year limitation period under s. 4 of the Real Property Limitations Act applied, thus rendering the action ‘safe’ as having been commenced on time; or (c) whether neither Act applied, leaving a ‘legislative gap’ such that there is no statutory limitation period.  Rosenberg J.A. agreed with the motions judge that clearly the claim was an ‘action’ to ‘obtain’ a right to the property, and that the language of s. 4 of the Real Property Limitations Act is broad enough to encompass an equitable claim for property based on the remedy of constructive trust.

Insurance Act

Insurance Act* Claim for fire insurance 148 (con. 14) 1 year
Damage to automobile 259.1 1 year
Still says 2 years but no longer mentioned in sch 19

* See the case of Boyce v. Co-operators General Insurance Co., 2013 CarswellOnt 5736, 2013 ONCA 298, 228 A.C.W.S. (3d) 834, 116 O.R. (3d) 56, 307 O.A.C. 28, 22 C.C.L.I. (5th) 1, [2013] O.J. No. 2568 (C.A.) for clarification of the enforceability of contracts of insurance which purport to shorten the two year limitation period set out in s. 4 of the Limitations Act, 2002.  The Court of Appeal clarifies s. 22 of the Limitations Act, 2002, which is the general rule (and exceptions to it) which forbids “contracting out” of the general two year limitation provision found at s. 4.  The Appeal Court held firstly that a term purporting to shorten the limitation period must “in clear language” describe the limitation period, identify the scope of the application of it, and exclude the operation of other limitation periods.  Unless the term is in the contract and meets those requirements, the two year limitation period will apply.  Secondly, the “business agreement” exception will not apply to persons defined as “consumers” in the Consumer Protection Act, 2002, who enter into agreements for personal, family or household purposes.  In those situations, the two year limitation will apply.  Note, leave to appeal to the Supreme Court of Canada was refused: 2013 CarswellOnt 14166; [2013] S.C.C.A. No. 296 (S.C.C.).

Kassburg v. Sun Life Assurance Co. of Canada, [2014] O.J. No. 6222, 2014 ONCA 922 (C.A.) is a decision of the Ontario Court of Appeal which applied Boyce, supra to determine whether a contractual limitation period failed for uncertainty/ambiguity.  The Court of Appeal agreed with the motions judge that the one year limitation period in an LTD insurance policy was ambiguous and thus unenforceable, as it expressed the limitation period differently in two different places.  The Contract Document provided that time started to run from “the end of the time period in which proof of the claim is required”, and the Booklet provided it ran from “after the date [the insurer] must receive [the insured’s] claim forms”.  The insurer further argued that the limitation period began to run in 2008 when the plaintiff was first denied her benefits, and thus the claim (issued in 2012) was statute-barred no matter which limitation period applied.  Again, the appeal court found no reason to disagree with the conclusion of the motions judge that the two year limitation period began to run when the plaintiff was advised, in 2011, that her claim for benefits was denied at the “third and final appeal level”.

Also of note, the Supreme Court of Canada in Lombard General Insurance Company of Canada v. Schmitz, [2014] S.C.C.A. No. 143 dismissed the application for leave to appeal the decision of the Ontario Court of Appeal in Schmitz (Litigation guardian of) v. Lombard General Insurance Co. of Canada, [2014] O.J. No. 531, 2014 ONCA 88, 315 O.A.C. 187, 31 C.C.L.I. (5th) 1, 118 O.R. (3d) 694, 237 A.C.W.S. (3d) 484, 2014 CarswellOnt 1177.  This case involved the underinsured coverage under OPCF 44R.  At issue on appeal was whether the 12 month limitation period applied as per s. 17 of OPCF 44R, or whether the two year period applied as per s. 4 of the Limitations Act, 2002.  Also at issue was when the period of time commenced.  The motion judge held that the period of two years applied, and that it commenced when the claimant made a request for the compensation provided for by OPCF 44R.  The Court of Appeal dismissed the insurer’s appeal, but made a minor amendment to the Order, holding that the time began to run the day after the demand for indemnification is made, as the insured only suffers a loss once the insurer has failed to satisfy its legal obligation.

*See Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 which, although decided under predecessor legislation (the former s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996), is arguably applicable to the identical current legislation (s.280(2) of the Insurance Act and s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010).  The case held that the hard two-year limitation period outlined in those sections is subject to the discoverability rule.

No Limitations Period

*It is a common misconception that a claim grounded in fraud has no limitation period.  Civil litigators who should ever have occasion to represent a plaintiff bringing a fraud action – as well as those representing a defendant on the receiving end of a fraud action – should know that the two year limitation applies to these cases.  Of course, the very nature of fraudulent activity means that the actions of the wrongdoer were at one point being deliberately concealed.  Thus, the discoverability principles will likely be in play when determining the commencement of the limitation period.  For some appellate level cases on this issue, see: Dynamic Fuel Systems Inc. v. Synergic Distribution Inc., [2013] O.J. No. 2708, 2013 ONSC 4081, 2013 CarswellOnt 7897, 229 A.C.W.S. (3d) 95 (Div. Ct.) and Portuguese Canadian Credit Union Ltd. (Liquidator of) v. Pires, [2012] O.J. No. 2215, 2012 ONCA 335, 2012 CarswellOnt 6250, 216 A.C.W.S. (3d) 473 (C.A.).

Special Circumstances

Until the Ontario Court of Appeal’s decision in Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 401 (C.A.), many lawyers in Ontario thought they could still rely on the common law doctrine of special circumstances, which gave the Court the discretion to extend a limitation period after its expiration, if special circumstances existed. The Court of Appeal in Joseph has unequivocally pronounced that the doctrine no longer applies under the new Limitations Act, 2002.  Click to read a full article on this case.

Discoverability & Pleadings

See the case of Collins v. Cortez, [2014] O.J. No. 4753, 2014 ONCA 685 (C.A.) in which the Court of Appeal confirmed that plaintiffs do not have to anticipate a limitations defence by pleading the material facts relevant to discoverability in the statement of claim.  In this case, the motions judge dismissed the action at a summary judgment motion because the claim was commenced more than 2 years after the motor vehicle accident, and the statement of claim did not plead the facts relevant to discoverability.  The Court of Appeal allowed the plaintiff’s appeal of the dismissal, and ordered her to deliver her reply, which, it held, is the appropriate place for the plaintiff to plead discoverability if a limitations defence is raised in the statement of defence.

Pursuant to Section 16 of the Limitations Act, 2002, there are no limitation periods in respect of the following proceedings:

Civil Remedies
Forfeiture order under s. 8 (property) or 11.2 (vehicle) of the Civil Remedies Act, 2001
Debtor/creditor in possession of collateral to redeem/realize it
16(1)(f), (g)
Court order
Enforcement of a court order
Recovery of money owing to the Crown re. fines, taxes, penalties and interest
16(1)(i), (j) (2) and (3)
Declaration, if not seeking consequential relief
See Crown above re. Ontario Disability Support Program Act, 1997
16(1)(j)(ii) and (2)
Economic Development
See Crown above re. economic development loans
16(1)(j), (2) and (3)
Undiscovered environmental claims
Health Programs
See Social Assistance below
16(1)(j), (2) and (3)
Medical Resident Loans
Recovery of money owing re. loans, awards or grants under the Ministry of Training, Colleges and Universities Act, the Canada Student Financial Assistance Act or the Canada Student Loans Act
Sexual Assault
Any claim for secual assault
Sexual Misconduct
Where the victim was a minor, or the relationship between the parties meets certain criteria
Where the victim was a minor, or the parties were in an ‘intimate relationship’, or the victim was dependant on the defendant
Social Assistance
See Crown above re. reimbursement of money paid re. social, health or economic programs or policies as a result of fraud, misrepresentation, error or inadvertence
16(1)(j), (2) and (3)
Student Loans
See Medical Resident Loans above
16(1)(k) and (3)
Obtaining or enforcing support under the FLA or domestic contract
See Crown above re. Ontario Works Act, 1997
16(1)(j)(ii), (2) and (3)