Time Limits to Sue
A prospective legal claim does not exist in perpetuity unless legal action is taken within the limitation period for doing so. Limitation periods are VERY STRICT. If a claim is not commenced in time then the claim will be barred and the aggrieved party will lose the right to sue forever. This makes it vitally important to be aware of potential time limits to sue for a loss that may have been caused by a wrongdoer’s conduct.
In Alberta, the Limitations Act sets the limitation period for all claims not covered by more specific legislation. Some examples of more specific legislated limitation periods include:
- If you suffer an insured loss and are improperly denied insurance proceeds, the Insurance Act requires the claim be brought within 2 years of the insured loss rather than date of denial.
- If you are injured on public property (like a park or sidewalk) due to the negligence of the city, then the Municipal Government Act provides that you must notify the city in writing within 21 days of the occurrence of the injury.
- If you are hit by an uninsured motorist, or injured in a hit-and-run collision, you may claim compensation in Alberta through the Motor Vehicle Accident Claims Fund if you notify the Fund within 90 days.
- If a wrongdoer’s conduct results in the death of an individual, the limitation period for the family of the deceased to commence a lawsuit is two years from the date of death, subject to an important exception. If the time period to issue a claim has already expired by the date of death, any claim filed after the death for the same alleged negligence will be too late.
All claims, in Alberta, that are not captured by legislation specific to the type of injury or loss are captured by the uniform Limitations Act. Examples of claims that fall under the Limitations Act include those involving breach of contract, real estate or corporate commercial disputes, product liability, slip and falls, and medical malpractice.
The Limitations Act
Subject to a few exceptions, section 3 the Limitations Act of Alberta provides that if a claimant does not seek a remedial order within
(a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,
(i) that the injury for which the claimant seeks a remedial order had occurred,
(ii) that the injury was attributable to conduct of the defendant, and
(iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or
(b) 10 years after the claim arose,
whichever period expires first, then claim is likely statute barred and the Defendant is entitled to immunity from liability in respect of the claim.
The 2 year limitation period described in section 3(a) of the Limitations Act is the codification of a common law principle called the Discoverability Principle which will be discussed in further detail in a later article. In essence, the Discoverability Principle provides that a limitation period should only begin to run when the circumstances surrounding the claim could have been discovered through the exercise of reasonable diligence. In Alberta, this means that you will generally have 2 years to bring a claim upon its reasonable discovery.
The 10 year limitation period described in section 3(b) of the Limitations Act is a cap on the Discoverability Principle and is often described as the Ultimate Limitation Period. It is the ultimate limitation period because any claim not commenced within ten years of the date that it arose is statute barred regardless of whether the claim was reasonably discoverable within the 10 years of the alleged negligence.
Limitation periods can be avoided or delayed for certain plaintiffs if either the type of claim or personal circumstances of the plaintiff fall within one of the legislated exceptions to the limitation period or if the prospective plaintiff and defendant have agreed in writing to extend the limitation period in a tolling agreement. Tolling agreements, like all limitation exceptions, are complex and should not be relied upon unless in consult with a lawyer.
Exceptions for Minors, Disabled Persons, and Fraud
As a matter of fairness to some injured and aggrieved parties there are some legislated exceptions to the harshness of limitation periods. For example, minors and disabled plaintiffs are not subject to the same limitation periods as a typical adult plaintiff. Also, most limitation periods are extended in cases where there has been fraudulent concealment of the cause of action.
In cases involving injuries to a minor (including injury to a newborn baby in birth injury cases), there is no limitation period until the child turns 18, at which time the two-year limitation period will start to run. In very rare and exceptional cases the potential defendant can start the limitation clock before the child turns 18 if the potential defendant provides “notice” to the Public Trustee that a minor plaintiff may have a potential claim against the defendant.
For certain disabled individuals, there is no limitation to sue a defendant in Alberta, but the question of who would qualify as “disabled” in any particular case is difficult to predetermine. Certain clear cases do exist, for example, the limitation period will be extended for reason of disability in cases where the individual is a represented adult. However, the limitation period will not be extended by reason of disability for chronic pain or mobility disabilities. Typically, the Court will generally look at the mental and emotional faculties of the disabled plaintiff and determine whether they are (a) cognizant of the facts giving rise to the cause of action; (b) cognizant of the nature of the proposed proceeding; (c) able to comprehend the personal import of the proceeding; and (d) able to instruct counsel. Due to the complexities involved in this analysis it would not be advisable for a prospective plaintiff to rely on their disability to extend their limitation without consulting with a lawyer.
This is just a brief outline of our applicable limitation periods and is by no means exhaustive. We strongly recommend that you talk to one of the lawyers at Weir Bowen LLP as soon as possible after discovery of a potential claim.