While it may be the year of the Pig, 2019 also marks the year of the Ultimate Limitation Period! Undiscovered claims that occurred on or before January 1, 2004 (the date the Limitations Act, 2002 came into force), became ultimately statute barred on January 1, 2019 as a result of s. 15 of the Act.
The Act introduced an ultimate limitation period of 15 years that starts to run from the day the act or omission on which the claim is based took place. No proceeding can be commenced once the ultimate limitation period has concluded, irrespective of when the claim was discovered (subject to some enumerated exceptions contained in s. 16). The ultimate limitation period seeks to balance the concern for the plaintiffs with undiscovered causes of action being foreclosed from proceeding after late discovery of a possible claim against the need to prevent the indefinite postponement of the commencement of proceedings.
Section 15(2) provides that “no claim 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.” The decision of the Court of Appeal for Ontario in York Condominium Corp., No. 382 v. Jay-M Holdings, 2007 ONCA 49 clarified the scope of that provision with respect to claims where a cause of action had accrued, but remained undiscovered when the Act came into force on January 1, 2004. The court held that where the allegedly defective services were rendered in 1978, by virtue of s. 24 of the Act (the transition provision) the defective services were deemed to have been rendered on January 1, 2004. Therefore, the 15-year ultimate limitation period began to run as of that date and, as a result, could not be relied upon to bar the plaintiff’s claim.
Now that we are in 2019, any action based on an act or omission that occurred 15 years ago, but is not alleged to have been discovered until now, will be statute barred.
