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Limitations Act - Applications [s.2,4]


The guts of limitations application law is: When a limitation period expires, what does it prevent - and (often more importantly) what does it still allow?

A common misconception with limitations practice that I have found are the consequences of the expiry of the limitation period. In short, the expiry of a limitation period does not extinguish the plaintiff's right to their claim (ie. to a liquidated or unliquidated 'debt'), it only extinguishes their right to commence a civil legal proceeding (ie. sue) on it.

It's true that, for the most part, the extinguishment of the right to sue practically terminates the right, but not always. Short of a bankruptcy, the 'debt' notionally persists in law - even after the limitation period has expired.

The present sub-topic, "Applications" sets out a range of situations where the plaintiff may still be able to 'enforce' their rights (I'll call these 'residual rights'). Two of these residual rights [#2 and 3 below] are not listed in the Limitations Act, but are inferred by law.

1. The Listed s.2 Proceedings

The s.2 listed proceedings (above) are exempt from the Limitations Act. But that doesn't mean that they aren't subject to their own time restrictions. For instance, judicial review is normally subject to the doctrine of 'laches' (delay), and determining when a proceeding is subject to the Real Property Limitations Act may take days of work.

2. Set-off

Should the would-be plaintiff ever end up in a position where they owe the defendant money, the plaintiff should explore the law of both legal and equitable set-off [see the separate Latest Word topic for Set-off] to see if they can set-off their debt against their still-persisting claim. With a liquidated debt this will be a simple arithmetic dollar deduction, and with an unliquidated debt the plaintiff may be able to a deduct of reasonable amount that their 'claim' is worth and do that math accordingly. It's not automatic, it all turns on the applicable law of set-off. A crucial advantage is that any resulting litigation will be commenced by the original defendant [now plaintiff] and thus potentially avoid the implications of the expiry of the limitation on the original plaintiff.

3. Debt Collection

Again, the expiry of a limitation period does not extinguish a 'debt'. So, apart from any statutory prohibitions such as may apply such as in Ontario's Collection and Debt Settlement Services Act ("CADSSA") [such as quoted below] or the Consumer Reporting Act ("CRA")(ie. credit bureau law), you may still be able to 'pursue' the 'account' - despite the fact that you can't sue on it directly.
General CADSSA Reg s.23(1):
No collection agency or collector shall directly or indirectly threaten, or state an intention, to commence a legal proceeding for the collection of a debt, unless the collection agency or collector has the written authority of the creditor to commence the proceeding, and the proceeding is not otherwise prohibited by law.
That's not a hard and fast rule though, each debt situation and it's related law should be assessed on it's own merits. Debts owned personally are commonly exempt from debt collection-type statute law, though I have not reviewed that law for inclusion in this topic.


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Last modified: 23-05-20
By: admin