This is a law for procrastinators. You can sue people, but there’s going to be a time limit. So, no matter how good a case you might have, you have to be careful to watch the time limit. If you miss it, sorry, you are out of luck, your case is now “statute barred”.
When we are talking about statutes, usually we are referring to the Limitations Act, but in the case of real estate, we might also be talking about the Real Property Limitations Act. There are other limitations imposed in other statutes as well.
Limitations Act
Two Year Period
The Limitations Act, 2002 came into force on January 1, 2004. There is a basic two-year limitation period running from the day that the claim is discovered.
There is a fundamental principle of “discoverability”, meaning that the limitation is postponed until the injured party either:
- knows, or
- ought to know with reasonable diligence of the facts constituting the cause of action.
It is presumed that a claim is discovered on the day the act or omission on which the claim is based took place, however, this is rebuttable.
It is important to note that the limitation period for incapable persons which includes minors, and victims of sexual assault is extended.
15 Year Period
There is also an ultimate limitation period stating that “no proceeding shall be commenced in respect of any claim more than 15 years after the day on which the act or omission on which the claim is based took place”.
Consequently, there’s only 15 years to discover the claim. Fifteen years and one day would be too late.
Again, this limit is still subject to the incapacity, minors and sexual assault victims’ extension.
Effectively, this might mean that there is no real limitation at all. So, when do you finally throw out all those old files? NEVER!
Real Property Limitations Act
The Real Property Limitations Act contains a number of limitation periods other than the standard 2 years, based upon discovery. The Act maintains and reinforces a number of different limitation periods when it comes to rights concerning land, ownership, possession, future interests, the Crown, easements, rights-of-way, and mortgages.
See:
- For 1 year (s.5.7)
- For 3 years (s.40)
- For 5 years (s.6.1) (s. 36)
- For 10 years (s.4) (s.22) (s.23) (s.25) (s.38) (s.43)
- For 20 years (s.5.4) (s.33) (s.37)
- For 40 years (s.31)
- For 60 years (s. 3) (s. 30)
All these periods of time are triggered by the happening of an event, which may in fact be extended for a good many years. For example, in the case of a relatively short period namely 5 years, in the case of s.36, that’s five years after the date of death of a person who never gained or regained capacity. If that person lived to 100 years of age, that’s 105 years out…. that could be 2127!
The Concern and Fundamental Misunderstanding
All too often people will say that there’s a two year limitation. That’s true to a certain degree. However, it starts with “discovery” not the happening of the event.
And, when it comes to real property, there are 1 year, 3 year, 5 year, 10 year, 20 year, 40 year and 60 year limitations. So, be careful what you say!
Brian Madigan LL.B., Broker