How Long Do I Have To Sue? | Limitation Periods
By Elaine Bright | January 14, 2014
Author: Elaine Bright, Personal Injury Lawyer based out of Kenora, ON
We have all heard of victims coming forward years after being abused, and disclosing what happened to them. Sometimes criminal charges are laid against the perpetrators; sometimes civil claims are made, and sometimes both occur.
Lawyers are often asked – aren’t there limitation periods that apply in these types of cases? Why are they allowed to proceed so long after the acts took place?
In Canada, unlike the United States, there is no statute of limitation that prevents the prosecution of serious criminal charges any time after the crime occurs. Anyone can contact the police in Canada to report a crime that took place years ago. The police can and do investigate such crimes and lay charges, as long as the alleged perpetrator is still alive, and there is evidence that could support a conviction.
Limitation Period in Civil Suits in Ontario
Limitation periods do apply in Canada to civil suits. Each province has its own rules, but the rules are similar across the country.
In Ontario, the basic limitation period is two years – a person must commence an action within two years of when they first knew that a claim could be made. Normally, this would be two years after the claimant suffered the injury or damage that was the subject of the claim. (But beware of claims against the province or municipalities – in Ontario – in most cases, notice of such claims must be given within 10 days of an accident or injury.)
Exceptions to the 2-Year Limitation Rule
Important exceptions apply to the two year limitation period in Ontario if a claim is based on an assault or sexual assault. In such cases, the limitation period does not run during any period in which the claimant was physically or mentally incapable of commencing an action. In the case of a claim based on assault, the law presumes that the claimant was incapable of commencing an action earlier than they did if the claimant was in an intimate relationship with the alleged assailant, or dependent on the assailant, at the time of the assault. In the case of a claim based on sexual assault, the law assumes in all cases that the claimant was incapable of commencing the action before it was commenced.
A defendant can rebut an assumption made under the limitation action with respect to an assault or sexual assault. For example, if a claimant sought legal advice and then waited over two years before acting on the advice, then there might be evidence to rebut the assumption that the claimant was not capable of commencing an action before it was commenced.
The bottom line is this: if someone you know discloses that they were abused, it is never too late to speak to a lawyer or report a crime to the police.