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Limitations Act - Ultimate Limitation Period [s.15]. Huether v. Sharpe
In Huether v. Sharpe (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the lower "motion judge dismissed the Township’s motion for summary judgement, finding that the Township’s negligence was ongoing and continuous and, therefore, the ultimate limitation period had not yet expired by virtue of s. 15(6)(a) of the Act".
Here the court extensively considers the concept of 'continuous act or omission' in limitations law [Note: the similar concept of 'rolling' limitation periods may bear only on contractual situations]:[1] This appeal raises the issue of what constitutes a “continuous act or omission” under s. 15(6)(a) of the Limitations Act, 2002, S.O. 2002 c. 24, Sched. B (the “Act”) sufficient to toll the running of the 15-year ultimate limitation period in s. 15(2).
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[6] ... the motion judge failed to properly interpret the meaning of a “continuous act or omission” and therefore incorrectly concluded that the ultimate limitation period in s. 15(2) had never commenced running in respect of the respondents’ claim. As I explain below, the ultimate limitation period had expired on January 1, 2019, and the motion judge ought therefore to have granted the Township’s motion for summary judgement dismissing the proceeding as statute barred.
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STANDARD OF REVIEW
[25] The interpretation of the ultimate limitation period in s. 15 of the Act is a question of law subject to review on a standard of correctness: Wong, at para. 16.
GOVERNING LEGAL PRINCIPLES
(1) Relevant statutory provisions
[26] Section 4 of the Act sets out a “basic” limitation period of two years after discovery of a claim. However, this basic limitation period is subject to the “ultimate limitation period” set out in s. 15(2), which provides as follows:(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place. [27] Section 15(6)(a) further provides that in the case of a “continuous act or omission”, the act or omission takes place “on the day on which the act or omission ceases”.
[28] Accordingly, if the alleged negligence of the Township is a “continuous act or omission” which has not yet ceased (as the respondents contend), then the act or omission on which the respondents’ claim is based has not yet occurred, and the limitation period in s. 15(2) has not yet commenced running.
[29] If, on the other hand, the alleged negligence was not a “continuous act or omission” then the limitation period in s. 15(2) would have commenced running on January 1, 2004 and expired 15 years later, on January 1, 2019. This results from the transitional provision in s. 24(5)1 of the Act, which provides that if the “former limitation period”[3] had not expired by January 1, 2004 and the claim was not discovered before that date, then “the Act applies as if the act or omission had taken place on that date.”
[30] In short, this appeal turns on whether the Township’s alleged negligence constitutes a “continuous act or omission” within the meaning of s. 15(6)(a) of the Act.
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(3) The purpose of the ultimate limitation period in s. 15(2)
[32] Ontario’s comprehensive reform of the law of limitations, which came into force in 2004, sought to create “a clear and cohesive scheme for addressing limitation issues, one that balances the plaintiff’s right to sue with the defendant’s need for certainty and finality”: Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641, at para. 17.
[33] Thus, on the one hand, the basic limitation period was derived from the common law “discoverability principle”, such that the limitation period would generally only run once a person became aware (or ought reasonably to have become aware) of their claim.
[34] At the same time, the enactment of an ultimate limitation period was seen as necessary to avoid a situation where a legal proceeding could be brought in respect of hidden defects that that were only discovered many decades later. In introducing the legislation, Attorney General Bryant expressly justified the ultimate limitation period as necessary to prevent such untimely legal proceedings in respect of latent building defects:Does it make sense that architects and engineers can be sued 50 years after building a home? Of course not. Interestingly, that is the current state of affairs, which does not make much sense at all.[4] [35] The ultimate limitation period in s. 15(2) of the Act was intended to address this mischief. Its purposes include avoiding costs related to record-keeping and insurance due to continuous exposure to liability; addressing evidentiary concerns arising from deceased or missing witnesses or records that might have been destroyed by fires, floods, or other intervening events; recognizing that memories fade and even where a witness is available their ability to recall events that took place many decades in the past will be limited; and serving the public interest in bringing an end to litigation and the revisiting of past errors: York Condominium Corp. No. 380 v. Jay-M Holdings Ltd., 2007 ONCA 49, 84 O.R. (3d) 414, at paras. 30-34, leave to appeal refused, [2007] S.C.C.A. No. 154; Wong, at paras. 23-25.
[36] At the same time, in order to avoid unfairness to plaintiffs with undiscovered claims, the legislature provided a number of exceptions to the operation of the ultimate limitation period. One of these exceptions was that set out in s. 15(6)(a) in respect of “continuous acts or omissions”. As the Alberta Law Reform Institute explained in a 1989 report recommending an ultimate limitation period, in situations where wrongful conduct has continued, concerns over stale evidence are mitigated by the fact that “the evidence will have continually renewed itself with the defendant’s repetitive conduct”: Alberta Law Reform Institute, Limitations (Edmonton: Alberta Law Reform Institute, 1989), at p. 70; Seidel v. Kerr, 2003 ABCA 267, 19 Alta. L.R. (4th) 201, at para. 45. Moreover, “[j]ustice does not require giving the defendants repose for wrongful conduct which just stopped.” These are relevant and helpful considerations in determining the scope and application of the term “continuous act or omission” in s. 15(6)(a) of the Act.
(4) The elements of a “continuing cause of action”
[37] The concept of a “continuing cause of action” is a long-standing principle of procedural and limitations law in Ontario as well as other common law jurisdictions.[5]
[38] Section 117 of the Courts of Justice Act, R.S.O. 1990, c. C-43 entitles the court to assess damages with respect to a continuing cause of action that arises between the commencement of the action and trial. The predecessors of s. 117 have been in force in Ontario since at least 1919 and the concept of a continuing cause of action dates to the 19th century: Hamilton v. Quaker Oats Co. (1919), 46 O.L.R. 309 (H.C.) at para. 10; Hole v. Chard Union, [1894] 1 Ch. 293, at pp. 295-96. Equivalent provisions exist in procedural and limitation statutes in a number of other provinces: see e.g., Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.9; Limitations Act, R.S.A. 2000, c. L-12, s. 3(3)(a); and Limitations of Actions Act, S.N.S. 2014, c. 35, s. 8(3)(a). The interpretation of these various provisions has generated a considerable body of law defining a “continuous cause of action”.
[39] In essence, the term is used to describe causes of action that accrue from repeating actionable conduct. Because each repetition of the actionable conduct is identical and occurs continuously, it founds a new and discrete cause of action.
[40] This understanding of the concept of a “continuing cause of action” was adopted by this court in its 1924 decision in McIntosh v. Parent (1924), 1924 CanLII 401 (ON CA), 55 O.L.R. 552 (C.A.), at p. 424, quoting the 1894 English Court of Chancery decision in Chard Union, at pp. 295-96:[W]hat is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought… If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem [from day to day]. [41] Nuisance and trespass are the most common examples of continuing causes of action, since each day the nuisance or trespass occurs a new and identical cause of action in nuisance or trespass accrues: see e.g., Smart v. South Saskatchewan Hospital Centre, 1989 CanLII 4801 (SK CA), 60 D.L.R. (4th) 8 (Sask. C.A.), at para. 46.[6] In such cases, “[the] injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly past”: Roberts v. City of Portage La Prairie, 1971 CanLII 128 (SCC), [1971] S.C.R. 481, at p. 491, quoting Salmond on Torts, 15th ed., at p. 791.
[42] Continuing causes of action are uncommon. In Jalla & Ors v. Shell International Trading and Shipping Company & Anor, [2021] EWCA Civ 63, at paras. 52-53, the England and Wales Court of Appeal (Civil Division) observed that a cause of action in tort “is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law” while “[a] continuing cause of action is more unusual.”
[43] Thus, actionable conduct is not continuing merely because it can be rectified or because the harm it causes is either continuing or delayed. This principle is illustrated by Sunset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437, aff’d 2012 ONCA 416, where the defendant municipality installed a sewer line to the plaintiff’s building in 1986. There were ongoing problems with flow in the sewer line, which eventually led the plaintiff to commence a proceeding alleging that the municipality installed the line negligently. The defendant municipality brought a motion for summary judgement on the basis that the claim was statute barred, which the plaintiff resisted by arguing, inter alia, that the municipality was under an ongoing duty to repair the deficient sewer line and, therefore, the negligence was a “continuous cause of action”.
[44] In a judgment upheld on appeal to this court, the plaintiff’s argument was rejected on the basis that a continuous act or omission requires a succession or repetition of separate acts of the same character. The allegation that the defendant was under an ongoing duty of care to the plaintiff “does not constitute the type of repetitive and continuing conduct which is the foundation of the continuing cause of action”: Sunset Inns, at para. 22.
[45] Similarly, in Bowes v. Edmonton (City of), 2007 ABCA 347, 86 Alta. L.R. (4th) 47, a riverbank collapse destroyed the plaintiffs’ homes 12 years after their construction. The plaintiff sued the defendant municipality for negligence, alleging a breach of its duty to warn against construction on the riverbank and arguing that the breach was continuous. The Alberta Court of Appeal rejected this argument, reasoning that any alleged negligence had occurred by the time the buildings were constructed and “absolutely nothing happened” thereafter: at para. 169. The court pointed out that “[t]o regard every ancient failure to warn as occurring every day would be a fiction destroying all limitation periods… [since] most cases of delayed harm from a tort could be dressed up as failures to warn, with no limitation period”: at paras. 173-174.
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[48] .... As Sunset Inns explains, the mere allegation that the defendant has some generalized ongoing duty to the plaintiff is, in and of itself, insufficient to toll the running of the ultimate limitation period, absent some successive or repeated actionable conduct on the part of the defendant.
[49] This interpretation of a “continuous act or omission” is consistent with the purposes underlying the ultimate limitation period, including the exception in s. 15(6)(a). As Attorney General Bryant explained, a central concern that led to the enactment of s. 15(2) was precisely to avoid litigation over latent defects in buildings constructed decades in the past.[7]
[50] This proceeding is a classic illustration of the difficulties associated with such belated litigation. All the individuals who were directly involved in the construction of the Dwelling are now deceased. Amongst other things, this means that it is impossible for the Township to satisfy the obligation imposed by the motion judge to “follow up” with Attwood, the deceased Permit holder, regarding the status of construction that was completed over 35 years ago. While the motion judge claimed that the documents in the Permit file “speak for themselves”, this is belied by the fact that the source of the handwritten notation on the Order to Comply is unknown. Moreover, the documents in the file do not tell anywhere near the complete story, including whether Helka believed that he had closed the Permit.
[51] In short, this is not a situation such as that described by the Alberta Law Reform Institute in its 1989 report, where there is repeating actionable conduct that mitigates concerns over stale evidence. Rather, this proceeding exemplifies the observation of the Alberta Court of Appeal in Bowes, at para. 122, to the effect that “trying to find and test evidence about events decades old is usually roulette, not a serious exploration of the truth.”
[52] The practical effect of the motion judge’s reasoning is that there is no limitation period applicable to proceedings in respect of latent defects in the Dwelling. Consider that if the defects in this case had not been discovered until 50 or even 100 years from now, the then-owners could still commence a proceeding because the Township’s failure to satisfy their “duty to monitor” would have constituted a “continuing act or omission” that had not yet ceased. Such a result runs directly contrary to the Legislature’s stated intention to preclude such litigation, and the need to “balance the plaintiff’s right to sue with the defendant’s need for certainty and finality”: Canaccord, at para. 24.
[53] The respondents argue that if this proceeding is statute barred, homeowners will not be able to recover damages from a municipality for failure to conduct inspections or otherwise regulate building construction, contrary to this court’s holding in Breen.
[54] I do not agree. The issue is not whether a property owner has a right to sue for a municipality’s negligence, but for how long. In Breen, the municipality was found to have breached its duty of care to the plaintiffs by closing a permit file in 1993 without conducting the necessary inspections. But in Breen the action was commenced in February 2014. Thus, although the negligence had taken place in 1993, the ultimate limitation period did not commence running until January 2004, in accordance with s. 24(5)1 of the Act, and had not yet expired. Breen does not assist the respondents in this case since this proceeding was not commenced until February 2022, after the expiry of the ultimate limitation period on January 1, 2019.
[55] A continuing act or omission requires a repetition of actionable conduct on a continuous basis by a defendant. There is no evidence of any such actionable conduct by the Township after February 1998. Although the Permit may have technically remained open, the Township considered it closed upon the issuance of the 1988 Certificate. Thereafter, the file became dormant and eventually was moved into storage. Even assuming, without deciding, that the Township had a duty to monitor open building permits, the existence of such a duty alone cannot amount to a continuous act or omission on the part of the Township for the purposes of s. 15(6)(a).
[56] I therefore conclude that the respondents’ proceeding is barred by s. 15(2) of the Act and would allow the appeal on that basis. . Wong v. Lui
In Wong v. Lui (Ont CA, 2023) the Court of Appeal, in allowing an appeal, subjects s.15(4)(b) [suspension of running of ultimate limitation period for minors not represented by litigation guardians] to the statutory interpretation text/context/purpose test:(a) Principles and relevant provisions
[18] This appeal involves the interpretation of s. 15(4)(b) of the Act, which, as noted above, provides that the ultimate 15-year limitation period established in s. 15(2) does not apply where “the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim”.
[19] The applicable principles of modern statutory interpretation are well-known. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The court must adopt an interpretation of the statute that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences: see e.g., Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022), at §2.03; York Condominium, at paras. 11, 14, 15; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 79, leave to appeal refused, [2020] S.C.C.A. No. 409; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27.
(b) Historical policy and legislative objectives of limitations statutes
[20] The historical development of limitations statutes and the common law interpretation of their purpose significantly guides the court’s interpretation of s. 15(4)(b) by providing context for understanding the purpose of this provision and how it ought to be interpreted.
[21] While the early common law “knew no limitation periods,” rules setting out “time limits within which actions must be brought, and outside which actions could not be brought” date back as far as Roman law and continued through the Middle Ages: Williams, Limitation of Actions in Canada, 2nd ed (Toronto: Butterworths, 1980), at p. 24; William Ballentine, A Treatise on the Statute of Limitations (New York: C. Wiley, 1812), at p. 9; Henricus de Bractona, De legibus et Consuetudinibus Angliae, Volume 2 (c. 1210-1268)[5].
[22] The earliest English statutory limitation provisions, from which Canadian statutory limitations periods derive their origin, were introduced in the Statute of Merton, 1235, 20 Hen. 3, c.1, c.8, which attached limitation periods to each writ: Graeme Mew, The Law of Limitations, 3rd ed (Toronto: LexisNexis Canada, 2016), at p. 4; Williams, at p. 25. In England, general limitation periods were first introduced through the Statute of Limitations, 1540, 32 Hen. 8, c.2, which dealt with real property, and later through the Statute of Limitations, 1623, 21 Jac. 1, c. 16, which provided limitation periods for actions including “simple contracts and torts”: Mew, at pp. 4-5.
[23] Limitations statutes in Canadian common law provinces “evolved from the English statutes that were inherited on the appropriate reception date”: Mew, at p. 5. Their purpose has remained consistent throughout the last two hundred years: they serve to bar a claimant’s right to commence legal proceedings after a certain period of time. Seen as “statutes of repose” and “statutes of peace”, their fundamental rationale supports the public interest in the end to litigation and to the revisiting of past errors: Deaville v. Boegeman (1984), 1984 CanLII 1925 (ON CA), 14 D.L.R. (4th) 81 (Ont. C.A.), at p. 86; Sable Offshore Energy Inc. v. Canada (Customs and Revenue Agency), 2003 FCA 220, 226 D.L.R. (4th) 673, at para. 20; Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, 1991) at 1.
[24] Finality in litigation is not the only object of limitations statutes. The Act and its predecessors strive to balance the plaintiff’s right to sue with the defendant’s right to certainty and finality: Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, 115 O.R. (3d) 641, at para. 24; Levesque v. Crampton Estate, 2017 ONCA 455, 136 O.R. (3d) 161, at para. 54. As the Supreme Court, per Moldaver J. for the majority, reiterated in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 68: “Limitation periods are always ‘driven by specific policy choices of the legislatures’…as they attempt to ‘balance the interests of both sides’” (citations omitted).
[25] This balance also underlies the purpose of the ultimate 15-year limitation period in s. 15(2) of the Act. As this court stated in York Condominium, at para. 32, its purpose is “to balance the concern for plaintiffs with undiscovered causes of action with the need to prevent the indefinite postponement of a limitation period and the associated costs relating to record-keeping and insurance resulting from continuous exposure to liability.”
[26] Moreover, balanced against the right to finality is the acknowledgement that it would be unfair to bar a person’s right to make a claim while in a condition that renders them unable to take steps to pursue their rights. As a result, limitation periods are suspended by reason of incapacity and age. This is not a new provision; it has existed in one form or another for several hundreds of years: see e.g., Papamonolopoulos v. Board of Education for the City of Toronto (1986), 1986 CanLII 2688 (ON CA), 56 O.R. (2d) 1 (C.A.), at p. 1, leave to appeal refused, 1987 CanLII 5366 (S.C.C.); Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 243.
[27] Indeed, as the Manitoba Court of Appeal noted in Mumford v. Health Sciences Centre (1987), 1978 CanLII 1948 (MB CA), 92 D.L.R. (3d) 64 (Man. C.A.), at p. 65, the legislated exception to limitation periods for minors and those “non compos mentis”, among others, dates back to the Statute of Limitations, 1623, s. 7. The exceptions for disability and minors are grounded in a broad view of incapacity: “those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters”: Murphy v. Welsh; Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 SCR 1069, at p. 1080; Manitoba Metis Federation, at para. 246. Accordingly, the exception to limitation periods for those under legal disability is intended as a mechanism for “ensuring fairness to plaintiffs”: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, at paras. 64, 69.
(c) Motion judge’s interpretation
[28] In my respectful view, the motion judge did not take into account the specific purposes of the exceptions for minors and those under disability when coming to her interpretation of s. 15(4)(b). By failing to interpret s. 15(4)(b) in light of the specific purposes of these exceptions, the motion judge deviated from the legislative purpose that had remained constant for several hundreds of years in the section’s predecessors, such as in s. 47 of the former Act.
[29] In particular, the motion judge’s approach caused her to distinguish s. 47 of the former Act from s. 15(4) of the current Act, finding that “[t]he language of s. 47 of the Former Act is markedly different from that of s. 15(4)(b) of the Act. Section 47 of the Former Act explicitly required a cause of action to accrue to a minor as a condition of suspending the limitation period. Such an express condition is absent from the text of s. 15(4)(b) of the current Act.”
[30] Respectfully, this was an error. The difference in language highlighted by the motion judge does not derogate from the underlying purpose of s. 47 in the former Act. This purpose is the centuries-old protection of persons under a legal disability without a litigation guardian who are presumed not to know their rights and are incapable of preserving them by starting proceedings.
[31] Section 47 of the former Limitations Act provides:Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind. [32] Section 47 reflects the legislative purpose of its predecessors that finds its origin in the early laws of England, namely, that “since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them”: Papamonolopoulos, at p. 3. Accordingly, s. 47 and its predecessors toll limitation periods for minors because “an infant is unable adequately to look after his own affairs, including the bringing of actions”: Papamonolopoulos, at p. 3, citing to Williams, at p. 203; Bisoukis v. Brampton (City) (1999), 1999 CanLII 3825 (ON CA), 46 O.R. (3d) 417 (C.A.), at para. 33.
[33] This purpose informs and continues into the present Act. Nothing in the text of s. 15(4)(b) ousts the historical public purpose reflected in s. 47 of the former Act and its predecessors. Without express language or legislative intention to the contrary, it is presumed that the legislature did not intend to make significant changes to the law, as it is “improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness”: Peter St. John Langan, Maxwell on the Interpretation of Statutes, 12th ed (London: Sweet & Maxwell, 1969) at p. 116; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21.
[34] The exceptions to the limitation periods provided for by the current Act expand the situations where a limitation period may be suspended: see e.g., Carmichael, at para. 88. Section 15(4) provides for certain limited exceptions when the 15-year limitation period established by s. 15(2) does not run: when a person is under a disability because of his or her physical, mental or psychological condition, or is a minor, and is not represented by a litigation guardian, or where the claim has been wilfully concealed or the person with the claim has been wilfully misled about the appropriateness of a proceeding as a means of remedying the injury, loss or damage. Importantly, underlying each exception is the inability of the person with the claim to commence a proceeding, whether because of disability or fraud or misrepresentation.
[35] Moreover, the motion judge’s narrow approach to s. 15(4)(b) undermines not only the historical and legislative purpose of this provision, but also the balancing objective of the ultimate 15-year limitation period set out in s. 15(2) of the Act. The motion judge correctly stated that the purpose of the ultimate limitation period is to “provide certainty and finality to a defendant’s potential liability without unduly restricting a claimant’s access to justice”. However, the motion judge’s approach defeats this purpose because it defines a limitation period entirely by the plaintiff’s age without regard to when the claim actually arises. This is inconsistent with s. 15(2) that provides for the commencement of the ultimate limitation period from “the day on which the act or omission on which the claim is based took place”. It is not subject to discoverability principles: York Condominium, at para. 2.
[36] The motion judge failed to apply a contextual and purposive approach to s. 15(4)(b). Importantly, she failed to give effect to all the words in s. 15(4)(b), as well as to its meaning and purpose in relation to s. 15(2) and the entirety of the Act. As a result, the analysis must be undertaken afresh.
(d) Contextual and purposive interpretation of s. 15(4)(b) of the Act
[37] I start with the plain language of s. 15(4)(b) of the Act. First, “the person with the claim is a minor”. This phrase, written in the present tense, links the person with the claim to the present state of being a minor. If it were meant to include persons who were minors at any time during the running of the ultimate limitation period, the text would have included the past tense, namely, “the person with the claim who was or is a minor”. It did not do so.
[38] Moreover, the phrase, “is not represented by a litigation guardian in relation to the claim”, is conjunctive with the words, “the person with the claim”. Again, the use of the present tense indicates the present time when the person who has the claim is a minor. The only reason for the person with a claim to have a litigation guardian is because the person with a claim is under a legal disability and cannot advance a claim on his or her own behalf: see rr. 1.03 and 7.01(1) of the Rules of Civil Procedure. This harkens back to the historical public policy behind the tolling of limitation periods for minors who are unable to commence actions on their own.
[39] This interpretation of s. 15(4)(b) with respect to the ultimate 15-year limitation period is consistent with this court’s interpretation of ss. 6 and 7 of the current Act with respect to the two-year limitation period under s. 4 of the Act. This court’s interpretation of these similarly worded provisions assists in the interpretation of s. 15(4)(b). The relevant provisions of ss. 6 and 7 of the Act are as follows:Minors
6 The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is a minor; and
(b) is not represented by a litigation guardian in relation to the claim.
Incapable persons
7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim. [40] In Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, leave to appeal refused, [2017] S.C.C.A. No. 289, this court interpreted s. 6(1)(b) and the question of when a minor “is not represented by a litigation guardian in relation to the claim”. At para. 30, Weiler J.A. interpreted the overall purpose of the Act: “The Limitations Act, 2002 contemplates a person with a claim and a person against whom the claim is made”. Her interpretation clearly links the temporal connection between the “person with the claim” and the period of time the person was incapable of starting an action because of their minority. That the section speaks to the contemporaneity between the incapacity and the claim repeats in Weiler J.A.’s description of the function of a litigation guardian. She stated that “[w]here the person with a claim is a minor, the Act requires that the minor be ‘represented by a litigation guardian in relation to the claim’” (emphasis added) and that “[t]he word ‘represented’ signifies that the litigation guardian may do anything in a proceeding that the party under a disability would ordinarily be required or authorized to do”: at para. 30.
[41] Carmichael involved the interpretation of s. 7(1)(a) of the Act and the incapacity of a claimant to start an action during the claimant’s period of incapacity because of disability. This court clearly interpreted the provisions to mean that the tolling of the limitation period was intended to operate only during the period that the claimant had the claim and, during the same period, was incapable of commencing a proceeding with respect to that claim. The court stated that s. 7(1)(a) was focussed only on “the person’s incapacity to pursue the particular claim at issue”: at paras. 88-89; and that s. 7(1) “suspends the running of the limitation period in s. 4 only ‘during any time’ in which the person is incapable, and thus begins to run again once the incapacity ceases”: at para. 103. This again points to the temporal nature of the limitation period exceptions for age and incapacity, as the emphasis is on the incapacity that occurs while the person has a legal claim to pursue.
[42] Limitation periods only apply to claims; they do not apply to persons who do not have claims. Moreover, an adult with a claim who is not under a disability has no need of the kind of accommodation and protection that the postponement of limitation periods was historically designed to achieve.
[43] Applying the requisite contextual and purposive approach, the only interpretation on a plain reading of s. 15(4)(b) that is consonant with the other provisions of the Act, the fundamental purpose behind limitations statutes, and the centuries-old policy objectives of the legislation with respect to minors is that it only postpones the running of the ultimate limitation period for minors who have claims that arose when they were minors.
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[47] Section 15(5) of the Act places the onus squarely on the person with the claim to prove that paragraph (4) applies. Ms. Wong has failed to do so.
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