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Possible Defendant's Notice [s.14]

This is a counter-intuitive provision. It sets out a procedure whereby someone who suspects they make have a claim made against themselves to give notice to the prospective 'plaintiff'.

. Gordon Dunk Farms Limited v. HFH Inc.

In Gordon Dunk Farms Limited v. HFH Inc. (Ont CA, 2021) the Court of Appeal held that the trial judge erred in their interpretation of s.14 of the Limitations Act (the case confirms the oddity of the provision):
[43] Section 14 of the Act allows a person who is a potential defendant in an action to put the potential plaintiff on notice that the potential plaintiff may have a claim against the person, the potential defendant. The purpose is to give a potential defendant the ability to start the two-year limitation period running so that it can have certainty about when the action will become statute barred. It is not an admission of liability. The section allows the court to take the notice into account if a limitation issue arises in respect of an action after it is commenced. Section 14 reads:
14 (1) A person against whom another person may have a claim may serve a notice of possible claim on the other person.

(2) A notice of possible claim shall be in writing and signed by the person issuing it or that person’s lawyer, and shall,

(a) describe the injury, loss or damage that the issuing person suspects may have occurred;

(b) identify the act or omission giving rise to the injury, loss or damage;

(c) indicate the extent to which the issuing person suspects that the injury, loss or damage may have been caused by the issuing person;

(d) state that any claim that the other person has could be extinguished because of the expiry of a limitation period; and

(e) state the issuing person’s name and address for service.

(3) The fact that a notice of possible claim has been served on a person may be considered by a court in determining when the limitation period in respect of the person’s claim began to run.

(4) Subsection (3) does not apply to a person who is not represented by a litigation guardian in relation to the claim and who, when served with the notice,
(a) is a minor; or

(b) is incapable of commencing a proceeding because of his or her physical, mental or psychological condition.

(5) A notice of possible claim is not an acknowledgment for the purpose of section 13.

(6) A notice of possible claim is not an admission of the validity of the claim.
[44] In this case, the appellant’s insurance adjuster sent letters to the three respondents on behalf of the appellant, the potential plaintiff, to put them on notice of the barn collapse and of their potential liability as defendants, and recommended that they refer the letter to their liability insurers and have them contact the appellant’s adjuster for further details.

[45] The motion judge took these letters into account to support his finding that the appellant knew sufficient facts to commence the action when those letters were sent. While the motion judge was entitled to do that as a matter of inference, he was in error by referring to s. 14 and relying on s. 14(3) as his authority for doing so. Section 14 had no application to the facts of this case, where it was the potential plaintiff putting the potential defendants on notice and not the other way around.


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Last modified: 30-10-21
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