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Limitation periods: bringing your legal action before it’s too late - Duensing LawDuensing Law

Limitation periods: bringing your legal action before it’s too late

Introduction

For anyone contemplating legal action, limitation periods are one of the most important rules to understand. A limitation period is the time within which a person must commence a legal claim. The “limitations clock” starts running at some defined event, such as the date of an accident or a person’s death. In Canada, limitation periods typically range from six months to two years. If a person fails to launch their claim within the limitation period, a court is usually obliged to strike the claim, regardless of its merits.

I say “usually” because this is not a hard and fast rule. As the recent case Weigand v. Mohammed illustrates, a court may extend a limitation period in exceptional circumstances. However, in order to receive an extension, a claimant must have a compelling reason for failing to bring the claim within a timely manner.

Background

Peter Weigand died in May 2013, and was survived by his partner, Phimphone Mohammed, and his three kids. Peter named Phimphone as the estate trustee and sole beneficiary in his will.

The Succession Law Reform Act (“SLRA”) permits “dependents” of a deceased person (such as children or a spouse) to bring a legal action against a person’s estate if he or she failed to make adequate provision for the dependents in the will. If a court determines that dependents were inadequately provided for, it can order the estate to pay money to the dependents. Importantly, the SLRA requires dependents to begin their action within six months from the date that the person’s will is “probated.”

On November 5, 2013, Peter’s will was probated, which means Phimphone received court authority to begin acting as estate trustee. If Peter’s children had acted within the limitation period, they would have begun their claim by or before May 5, 2014. They failed to do so.

Instead, in 2016, the children brought an application asking the court to extend the limitation period to allow them to obtain support as dependents under the SLRA. The children claimed that Phimphone had promised to sell Peter’s house and distribute its proceeds to the children, but instead transferred title to the house to her name. The children argued their reliance on Phimphone’s promise prevented them from acting within the limitation period.

Phimphone denied the children’s version of events. She claimed she had never promised to sell the house or give its proceeds to the children. She noted that the children did not seek legal advice or assert dependency until years after Peter’s death. Finally, she noted that she had already distributed all of the estate’s assets, so it would be unfair to revisit the matter.

The decision

The court decided to extend the limitation period, but emphasized that granting the extension was not a simple question. Rather, the discretion to grant an extension “is a question of what is equitable between the parties, in all the circumstances.”

The court listed off various factors weighing for and against an extension, including the fact that Peter had an obligation to pay child support at the time of his death; that there was conflicting evidence as to the reasons for the children’s delay; and that Phimphone had already finished distributing the estate’s assets.

On this last factor, the judge noted that the SLRA typically prohibits an extension of limitation periods where an estate’s assets have been distributed, but noted that it would be inconceivable that the SLRA could be used to “shield (estate) administrators who engage in (misrepresentations).” If Phimphone had reneged on her promise to sell the house and distribute the money to the children, “it would be unconscionable to allow (Phimphone) to defeat a claim by virtue of a passed limitation period.” Since the court was not able to resolve this conflicting version of events, it weighed in favour of granting an extension. At trial, the judge would have to determine whether Phimphone or the children were telling the truth.

Conclusion

Limitation periods exist for a reason. They provide people with some certainty that they will not face legal action for old claims. If you think you may have an actionable claim, it is therefore essential to consult with us as early as possible to determine when and how to proceed.

If, for whatever reason, you failed to take legal action in a timely manner, you should still consult us. Depending on the reasons for your delay, a court may extend the limitation period to permit your claim to proceed. We suggest viewing this as an option of last resort, though, as there is no guarantee that a court will agree to an extension. It will depend on what the judge considers to be fair in the circumstances.

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