[37] Bill 213 Royal Assent (PDF)
Bill 213 2002
An Act to improve access to justice
by amending the Solicitors Act
to permit contingency fees
in certain circumstances, to modernize
and reform the law as it relates to
limitation periods by enacting a new
Limitations Act and making related
amendments to other statutes,
and to make changes with respect to the
governance of the public accounting
profession by amending the
Public Accountancy Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Enactment of Schedules
1. Schedules A, B and C to this Act are hereby enacted.
Commencement
2. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.
Schedules
(2) Schedules A, B and C to this Act come into force as provided in the commencement section at or near the end of each Schedule.
Different dates for same Schedule
(3) If a Schedule to this Act or any portion of a Schedule to this Act provides that it is to come into force on a day to be named by proclamation of the Lieutenant Governor, the proclamation may apply to the whole or any portion of the Schedule, and proclamations may be issued at different times as to any portion of the Schedule.
Short title
3. The short title of this Act is the Justice Statute Law Amendment Act, 2002.
SCHEDULE A
AMENDMENTS TO SOLICITORS ACT (CONTINGENCY FEE AGREEMENTS)
1. Section 15 of the Solicitors Act is amended by adding the following definition:
"contingency fee agreement" means an agreement referred to in section 28.1; ("entente sur des honoraires conditionnels")
2. Subsection 16 (2) of the Act is repealed and the following substituted:
Definition
(2) For purposes of this section and sections 20 to 32,
"agreement" includes a contingency fee agreement.
3. The Act is amended by adding the following section:
Awards of costs in contingency fee
agreements
20.1 (1) In calculating the amount of costs for the purposes of making an award of costs, a court shall not reduce the amount of costs only because the client's solicitor is being compensated in accordance with a contingency fee agreement.
Same
(2) Despite subsection 20 (2), even if an order for the payment of costs is more than the amount payable by the client to the client's own solicitor under a contingency fee agreement, a client may recover the full amount under an order for the payment of costs if the client is to use the payment of costs to pay his, her or its solicitor.
Same
(3) If the client recovers the full amount under an order for the payment of costs under subsection (2), the client is only required to pay costs to his, her or its solicitor and not the amount payable under the contingency fee agreement, unless the contingency fee agreement is one that has been approved by a court under subsection 28.1 (8) and provides otherwise.
4. Section 28 of the Act is repealed and the following substituted:
Purchase of interest prohibited
28. A solicitor shall not enter into an agreement by which the solicitor purchases all or part of a client's interest in the action or other contentious proceeding that the solicitor is to bring or maintain on the client's behalf.
Contingency fee agreements
28.1 (1) A solicitor may enter into a contingency fee agreement with a client in accordance with this section.
Remuneration dependent on success
(2) A solicitor may enter into a contingency fee agreement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided.
No contingency fees in certain matters
(3) A solicitor shall not enter into a contingency fee agreement if the solicitor is retained in respect of,
(a) a proceeding under the Criminal Code (Canada) or any other criminal or quasi-criminal proceeding; or
(b) a family law matter.
Written agreement
(4) A contingency fee agreement shall be in writing.
Maximum amount of contingency fee
(5) If a contingency fee agreement involves a percentage of the amount or of the value of the property recovered in an action or proceeding, the amount to be paid to the solicitor shall not be more than the maximum percentage, if any, prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, how ever the amount or property is recovered.
Greater maximum amount where approved
(6) Despite subsection (5), a solicitor may enter into a contingency fee agreement where the amount paid to the solicitor is more than the maximum percentage prescribed by regulation of the amount or of the value of the property recovered in the action or proceeding, if, upon joint application of the solicitor and his or her client whose application is to be brought within 90 days after the agreement is executed, the agreement is approved by the Superior Court of Justice.
Factors to be considered in application
(7) In determining whether to grant an application under subsection (6), the court shall consider the nature and complexity of the action or proceeding and the expense or risk involved in it and may consider such other factors as the court considers relevant.
Agreement not to include costs except with leave
(8) A contingency fee agreement shall not include in the fee payable to the solicitor, in addition to the fee payable under the agreement, any amount arising as a result of an award of costs or costs obtained as part of a settlement, unless,
(a) the solicitor and client jointly apply to a judge of the Superior Court of Justice for approval to include the costs or a proportion of the costs in the contingency fee agreement because of exceptional circumstances; and
(b) the judge is satisfied that exceptional circumstances apply and approves the inclusion of the costs or a proportion of them.
Enforceability of greater maximum amount of contingency fee
(9) A contingency fee agreement that is subject to approval under subsection (6) or (8) is not enforceable unless it is so approved.
Non-application
(10) Sections 17, 18 and 19 do not apply to contingency fee agreements.
Assessment of contingency fee
(11) For purposes of assessment, if a contingency fee agreement,
(a) is not one to which subsection (6) or (8) applies, the client may apply to the Superior Court of Justice for an assessment of the solicitor's bill within 30 days after its delivery or within one year after its payment; or
(b) is one to which subsection (6) or (8) applies, the client or the solicitor may apply to the Superior Court of Justice for an assessment within the time prescribed by regulation made under this section.
Regulations
(12) The Lieutenant Governor in Council may make regulations governing contingency fee agreements, including regulations,
(a) governing the maximum percentage of the amount or of the value of the property recovered that may be a contingency fee, including but not limited to,
(i) setting a scale for the maximum percentage that may be charged for a contingency fee based on factors such as the value of the recovery and the amount of time spent by the solicitor, and
(ii) differentiating the maximum percentage that may be charged for a contingency fee based on factors such as the type of cause of action and the court in which the action is to be heard and distinguishing between causes of actions of the same type;
(b) governing the maximum amount of remuneration that may be paid to a solicitor pursuant to a contingency fee agreement;
(c) in respect of treatment of costs awarded or obtained where there is a contingency fee agreement;
(d) prescribing standards and requirements for contingency fee agreements, including the form of the agreements and terms that must be included in contingency fee agreements and prohibiting terms from being included in contingency fee agreements;
(e) imposing duties on solicitors who enter into contingency fee agreements;
(f) prescribing the time in which a solicitor or client may apply for an assessment under clause (11) (b);
(g) exempting persons, actions or proceedings or classes of persons, actions or proceedings from this section, a regulation made under this section or any provision in a regulation.
Commencement
5. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.
SCHEDULE B
LIMITATIONS ACT, 2002
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CONTENTS |
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Definitions and Application |
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1. 2. 3. |
Definitions Application Crown |
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Basic Limitation Period |
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4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. |
Basic limitation period Discovery Minors Incapable persons Litigation guardians Appointment of litigation guardian on application or motion by potential defendant Assaults and sexual assaults Attempted resolution Successors Acknowledgments Notice of possible claim |
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Ultimate Limitation Periods |
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15. |
Ultimate limitation periods |
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No Limitation Period |
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16. 17. |
No limitation period Undiscovered environmental claims |
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General Rules |
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18. 19. 20. 21. 22. 23. 24. |
Contribution and indemnity Other Acts, etc. Statutory variation of time limits Adding party Agreements Conflict of laws Transition |
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Amendments and Repeals |
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25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. |
Various Acts amended Limitations Act amended Business Corporations Act amended Certification of Titles Act amended Consumer Reporting Act amended Co-operative Corporations Act amended Corporations Act amended Credit Unions and Caisses Populaires Act, 1994 amended Electricity Act, 1998 amended Environmental Bill of Rights, 1993 amended Environmental Protection Act amended Estates Act amended Family Law Act amended Highway 407 Act, 1998 amended Insurance Act amended Land Titles Act amended Legislative Assembly Act amended Municipal Act, 2001 amended Ontario College of Art & Design Act, 2002 amended |
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44. 45. 46. 47. 48. 49. 50. 51. 52. |
Public Lands Act amended Public Transportation and Highway Improvement Act amended Solicitors Act amended Trustee Act amended University of Ontario Institute of Technology Act, 2002 amended Victims' Right to Proceeds of Crime Act, 1994 amended Schedule amended Commencement Short title Schedule |
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______________ |
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Definitions and Application
Definitions
1. In this Act,
"adverse effect" has the same meaning as in the Environmental Protection Act; ("conséquence préjudiciable")
"assault" includes a battery; ("voies de fait")
"claim" means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ("réclamation")
"contaminant" has the same meaning as in the Environmental Protection Act; ("contaminant")
"discharge" has the same meaning as in the Environmental Protection Act; ("rejet", "rejeter")
"environmental claim" means a claim based on an act or omission that caused, contributed to, or permitted the discharge of a contaminant into the natural environment that has caused or is likely to cause an adverse effect; ("réclamation relative à l'environnement")
"natural environment" has the same meaning as in the Environmental Protection Act. ("environnement naturel")
Application
2. (1) This Act applies to claims pursued in court proceedings other than,
(a) proceedings to which the Real Property Limitations Act applies;
(b) proceedings in the nature of an appeal, if the time for commencing them is governed by an Act or rule of court;
(c) proceedings under the Judicial Review Procedure Act;
(d) proceedings to which the Provincial Offences Act applies;
(e) proceedings based on the existing aboriginal and treaty rights of the aboriginal peoples of Canada which are recognized and affirmed in section 35 of the Constitution Act, 1982; and
(f) proceedings based on equitable claims by aboriginal peoples against the Crown.
Exception, aboriginal rights
(2) Proceedings referred to in clause (1) (e) and (f) are governed by the law that would have been in force with respect to limitation of actions if this Act had not been passed.
Crown
3. This Act binds the Crown.
Basic Limitation Period
Basic limitation period
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
5. (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
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.
Presumption
(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.
Extension
(3) If the running of a limitation period is postponed or suspended under this section and the period has less than six months to run when the postponement or suspension ends, the period is extended to include the day that is six months after the day on which the postponement or suspension ends.
Exception
(4) This section does not apply in respect of a claim referred to in section 10.
Litigation guardians
8. If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.
Appointment of litigation guardian on application
or motion by potential defendant
Definitions
9. (1) In this section,
"potential defendant" means a person against whom another person may have a claim but against whom the other person has not commenced a proceeding in respect of the claim; ("défendeur éventuel")
"potential plaintiff" means a person who may have a claim against another person but has not commenced a proceeding against that person in respect of the claim. ("demandeur éventuel")
Appointment of litigation guardian on application
or motion by potential defendant
(2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.
Effect of appointment
(3) Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period if the following conditions are met:
1. The appointment is made by a judge on the application or motion of a potential defendant.
2. The judge is satisfied that the litigation guardian,
i. has been served with the motion,
ii. has consented to the appointment in writing, or in person before the judge,
iii. in connection with the claim, knows of the matters referred to in clause 5 (1) (a),
iv. does not have an interest adverse to that of the potential plaintiff, and
v. agrees to attend to the potential plaintiff's interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.
Non-expiry
(4) The limitation period shall be deemed not to expire against the potential plaintiff until the later of,
(a) the date that is six months after the potential defendant files, with proof of service on the litigation guardian,
(i) a notice that complies with subsection (5), and
(ii) a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and
(b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).
Notice
(5) The notice,
(a) shall not be served before the first anniversary of the appointment;
(b) shall identify the potential plaintiff, the potential defendant and the claim; and
(c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced.
Assaults and sexual assaults
10. (1) The limitation period established by section 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.
Presumption
(2) Unless the contrary is proved, a person with a claim based on an assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced if at the time of the assault one of the parties to the assault had an intimate relationship with the person or was someone on whom the person was dependent, whether financially or otherwise.
Same
(3) Unless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced.
Attempted resolution
11. If a person with a claim and a person against whom the claim is made have agreed to have an independent third party resolve the claim or assist them in resolving it, the limitation periods established by sections 4 and 15 do not run from the date the agreement is made until,
(a) the date the claim is resolved;
(b) the date the attempted resolution process is terminated; or
(c) the date a party terminates or withdraws from the agreement.
Successors
12. (1) For the purpose of clause 5 (1) (a), in the case of a proceeding commenced by a person claiming through a predecessor in right, title or interest, the person shall be deemed to have knowledge of the matters referred to in that clause on the earlier of the following:
1. The day the predecessor first knew or ought to have known of those matters.
2. The day the person claiming first knew or ought to have known of them.
Principals and agents
(2) For the purpose of clause 5 (1) (a), in the case of a proceeding commenced by a principal, if the agent had a duty to communicate knowledge of the matters referred to in that clause to the principal, the principal shall be deemed to have knowledge of the matters referred to in that clause on the earlier of the following:
1. The day the agent first knew or ought to have known of those matters.
2. The day the principal first knew or ought to have known of them.
Same
(3) The day on which a predecessor or agent first ought to have known of the matters referred to in clause 5 (1) (a) is the day on which a reasonable person in the predecessor's or agent's circumstances and with the predecessor's or agent's abilities first ought to have known of them.
Acknowledgments
13. (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.
Interest
(2) An acknowledgment of liability in respect of a claim for interest is an acknowledgment of liability in respect of a claim for the principal and for interest falling due after the acknowledgment is made.
Collateral
(3) An acknowledgment of liability in respect of a claim to realize on or redeem collateral under a security agreement or to recover money in respect of the collateral is an acknowledgment by any other person who later comes into possession of it.
Realization
(4) A debtor's performance of an obligation under or in respect of a security agreement is an acknowledgment by the debtor of liability in respect of a claim by the creditor for realization on the collateral under the agreement.
Redemption
(5) A creditor's acceptance of a debtor's payment or performance of an obligation under or in respect of a security agreement is an acknowledgment by the creditor of liability in respect of a claim by the debtor for redemption of the collateral under the agreement.
Trustees
(6) An acknowledgment by a trustee is an acknowledgment by any other person who is or who later becomes a trustee of the same trust.
Personal property
(7) An acknowledgment of liability in respect of a claim to recover or enforce an equitable interest in personal property by a person in possession of it is an acknowledgment by any other person who later comes into possession of it.
Liquidated sum
(8) Subject to subsections (9) and (10), this section applies to an acknowledgment of liability in respect of a claim for payment of a liquidated sum even though the person making the acknowledgment refuses or does not promise to pay the sum or the balance of the sum still owing.
Restricted application
(9) This section does not apply unless the acknowledgment is made to the person with the claim, the person's agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada) before the expiry of the limitation period applicable to the claim.
Same
(10) Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person's agent.
Same
(11) In the case of a claim for payment of a liquidated sum, part payment of the sum by the person against whom the claim is made or by the person's agent has the same effect as the acknowledgment referred to in subsection (10).
Notice of possible claim
14. (1) A person against whom another person may have a claim may serve a notice of possible claim on the other person.
Contents
(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.
Effect
(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.
Exception
(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.
Acknowledgment
(5) A notice of possible claim is not an acknowledgment for the purpose of section 13.
Admission
(6) A notice of possible claim is not an admission of the validity of the claim.
Ultimate Limitation Periods
Ultimate limitation periods
15. (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
General
(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.
Exception, purchasers for value
(3) Despite subsection (2), no proceeding against a purchaser of personal property for value acting in good faith shall be commenced in respect of conversion of the property after the second anniversary of the day on which the property was converted.
Period not to run
(4) The limitation period established by subsection (2) does not run during any time in which,
(a) the person with the claim,
(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and
(ii) is not represented by a litigation guardian in relation to the claim;
(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or
(c) the person against whom the claim is made,
(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or
(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.
Burden
(5) Subject to section 10, the burden of proving that subsection (4) applies is on the person with the claim.
Day of occurrence
(6) For the purposes of this section, the day an act or omission on which a claim is based takes place is,
(a) in the case of a continuous act or omission, the day on which the act or omission ceases;
(b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;
(c) in the case of a default in performing a demand obligation, the day on which the default occurs.
No Limitation Period
No limitation period
16. (1) There is no limitation period in respect of,
(a) a proceeding for a declaration if no consequential relief is sought;
(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court;
(c) a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act;
(d) a proceeding to enforce an award in an arbitration to which the Arbitration Act, 1991 applies;
(e) a proceeding under section 8 of the Remedies for Organized Crime and Other Unlawful Activities Act, 2001;
(f) a proceeding by a debtor in possession of collateral to redeem it;
(g) a proceeding by a creditor in possession of collateral to realize on it;
(h) a proceeding arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise;
(i) a proceeding to recover money owing to the Crown in respect of,
(i) fines, taxes and penalties, or
(ii) interest that may be added to a tax or penalty under an Act;
(j) a proceeding described in subsection (2) that is brought by,
(i) the Crown, or
(ii) a delivery agent under the Ontario Disability Support Program Act, 1997 or the Ontario Works Act, 1997; or
(k) a proceeding to recover money owing in respect of student loans, awards and grants made under the Ministry of Training, Colleges and Universities Act, the Canada Student Financial Assistance Act or the Canada Student Loans Act.
Same
(2) Clause (1) (j) applies to proceedings in respect of claims relating to,
(a) the administration of social, health or economic programs; or
(b) the provision of direct or indirect support to members of the public in connection with social, health or economic policy.
Same
(3) Without limiting the generality of subsection (2), clause (1) (j) applies to proceedings in respect of claims for,
(a) the recovery of social assistance payments, student loans, awards, grants, contributions and economic development loans; and
(b) the reimbursement of money paid in connection with social, health or economic programs or policies as a result of fraud, misrepresentation, error or inadvertence.
Conflict with s. 15
(4) This section and section 17 prevail over anything in section 15.
Undiscovered environmental claims
17. There is no limitation period in respect of an environmental claim that has not been discovered.
General Rules
Contribution and indemnity
18. (1) For the purposes of subsection 5 (2) and section 15, in the case of a claim by one alleged wrongdoer against another for contribution and indemnity, the day on which the first alleged wrongdoer was served with the claim in respect of which contribution and indemnity is sought shall be deemed to be the day the act or omission on which that alleged wrongdoer's claim is based took place.
Application
(2) Subsection (1) applies whether the right to contribution and indemnity arises in respect of a tort or otherwise.
Other Acts, etc.
19. (1) A limitation period set out in or under another Act that applies to a claim to which this Act applies is of no effect unless,
(a) the provision establishing it is listed in the Schedule to this Act; or
(b) the provision establishing it,
(i) is in existence on the day this Act comes into force, and
(ii) incorporates by reference a provision listed in the Schedule to this Act.
Act prevails
(2) Subsection (1) applies despite any other Act.
Interpretation
(3) The fact that a provision is listed in the Schedule shall not be construed as a statement that the limitation period established by the provision would otherwise apply to a claim as defined in this Act.
Same
(4) If there is a conflict between a limitation period established by a provision referred to in subsection (1) and one established by any other provision of this Act, the limitation period established by the provision referred to in subsection (1) prevails.
Period not to run
(5) Sections 6, 7 and 11 apply, with necessary modifications, to a limitation period established by a provision referred to in subsection (1).
Statutory variation of time limits
20. This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act.
Adding party
21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
Misdescription
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.
Agreements
22. (1) A limitation period under this Act applies despite any agreement to vary or exclude it.
Exception
(2) Subsection (1) does not affect an agreement made before the day this Act comes into force.
Conflict of laws
23. For the purpose of applying the rules regarding conflict of laws, the limitations law of Ontario or any other jurisdiction is substantive law.
Transition
Definitions
24. (1) In this section,
"effective date" means the day on which this Act comes into force; ("date de l'entrée en vigueur")
"former limitation period" means the limitation period that applied in respect of the claim before the coming into force of this Act. ("ancien délai de prescription")
Application
(2) This section applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date.
Former limitation period expired
(3) If the former limitation period expired before the effective date, no proceeding shall be commenced in respect of the claim.
Former limitation period unexpired
(4) If the former limitation period did not expire before the effective date and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, there is no limitation period.
Same
(5) If the former limitation period did not expire before the effective date and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:
1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, the former limitation period applies.
No former limitation period
(6) If there was no former limitation period and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:
1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, there is no limitation period.
Assault and sexual assault
(7) In the case of a claim based on an assault or sexual assault that the defendant committed, knowingly aided or encouraged, or knowingly permitted the defendant's agent or employee to commit, the following rules apply, even if the former limitation period expired before the effective date:
1. If section 10 would apply were the claim based on an assault or sexual assault that took place on or after the effective date, section 10 applies to the claim, with necessary modifications.
2. If no limitation period under this Act would apply were the claim based on a sexual assault that took place on or after the effective date, there is no limitation period.
Agreements
(8) This section is subject to any agreement to vary or exclude a limitation period that was made before the day this Act comes into force.
Amendments and Repeals
25. The following are repealed:
1. Section 25 of the Ambulance Act.
2. Subsections 34 (6), 130 (7) and 138 (6) of the Business Corporations Act.
3. Subsection 111 (2) of the Co-operative Corporations Act.
4. Subsection 76 (2) of the Corporations Act.
5. Subsection 73 (3) of the Credit Unions and Caisses Populaires Act, 1994.
6. Subsection 4 (3) of the Employers and Employees Act.
7. Section 122 of the Environmental Bill of Rights, 1993.
8. Subsections 99 (13) and (14) of the Environmental Protection Act.
9. Subsection 38.1 (4), as enacted by the Statutes of Ontario, 1997, chapter 20, section 8 and amended by 1999, chapter 6, section 25, section 50, as amended by the Statutes of Ontario, 1999, chapter 6, section 25, and subsection 61 (4) of the Family Law Act.
10. Subsection 43 (7) of the Highway 407 Act, 1998.
11. Section 206 of the Highway Traffic Act.
12. Section 78 of the Mental Health Act.
13. Section 9 of the Mental Hospitals Act.
14. Section 18 of the Motor Vehicle Accident Claims Act.
15. Subsection 44 (7) and section 84 of the Municipal Act, 2001.
16. Section 8 of the Negligence Act.
17. Section 13 of the Off-Road Vehicles Act.
18. Subsection 30 (1) of the Ontario Mental Health Foundation Act.
19. Section 46 of the Professional Engineers Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule B, section 11.
20. Section 7 of the Public Authorities Protection Act.
21. Section 31 of the Public Hospitals Act.
22. Section 12 of the Public Officers Act.
23. Subsection 33 (5) of the Public Transportation and Highway Improvement Act.
24. Subsection 139 (4) and subsections 267 (1) and (2) of The Railways Act, being chapter 331 of the Revised Statutes of Ontario, 1950.
25. Section 89 of Schedule 2 to the Regulated Health Professions Act, 1991, as amended by the Statutes of Ontario, 2001, chapter 8, section 225.
26. Section 86 of the Telephone Act.
27. Section 46 of the Veterinarians Act.
26. (1) Parts II and III of the Limitations Act are repealed and the following substituted:
Express trust: when right of beneficiary
accrues
42. Where land or rent is vested in a trustee upon an express trust, the right of the beneficiary of the trust or a person claiming through the beneficiary to bring an action against the trustee or a person claiming through the trustee to recover the land or rent, shall be deemed to have first accrued, according to the meaning of this Act, at and not before the time at which the land or rent has been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through the purchaser.
Mortgage covenant
43. (1) No action upon a covenant contained in an indenture of mortgage or any other instrument made on or after July 1, 1894 to repay the whole or part of any money secured by a mortgage shall be commenced after the later of,
(a) the expiry of 10 years after the day on which the cause of action arose; and
(b) the expiry of 10 years after the day on which the interest of the person liable on the covenant in the mortgaged lands was conveyed or transferred.
Equity of redemption
(2) No action by a mortgagee against a grantee of the equity of redemption under section 20 of the Mortgages Act shall be commenced after the expiry of 10 years after the day on which the cause of action arose.
Same
(3) Subsections (1) and (2) do not extend the time for bringing an action if the time for bringing it is limited by any other Act.
(2) The title of the Limitations Act is repealed and the following substituted:
Real Property
Limitations Act
27. (1) Subsection 131 (2) of the Business Corporations Act is repealed and the following substituted:
Limitation of liability
(2) A director is liable under subsection (1) only if,
(a) the corporation is sued in the action against the director and execution against the corporation is returned unsatisfied in whole or in part; or
(b) before or after the action is commenced, the corporation goes into liquidation, is ordered to be wound up or makes an authorized assignment under the Bankruptcy and Insolvency Act (Canada), or a receiving order under that Act is made against it, and, in any such case, the claim for the debt has been proved.
(2) Subsection 243 (1) of the Act is amended by striking out "within five years after the date of the dissolution of the corporation" at the end.
28. Subsection 4 (3) of the Certification of Titles Act is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
29. Clause 9 (3) (f) of the Consumer Reporting Act is repealed and the following substituted:
(f) information regarding any collection or debt after seven years following the commencement of the debt obligation, unless the creditor or the creditor's agent confirms that the debt obligation is not barred under the Limitations Act, 2002 and the confirmation appears in the file;
30. (1) Subsection 72 (2) of the Co-operative Corporations Act is repealed and the following substituted:
Limitation of liability
(2) A person is not liable under subsection (1) unless the co-operative has been sued for the debt and execution has been returned unsatisfied in whole or in part.
(2) Subsection 99 (2) of the Act is repealed and the following substituted:
Application to court
(2) Where a co-operative acquires any of its shares or repays any of its loans in contravention of this Act or the articles, any member of the co-operative or, where the acquisition or repayment is in contravention of subsection 32 (2), 67 (1) or section 69, any creditor of the co-operative who was a creditor at the time of the acquisition or repayment, may apply to the court and the court may, if it considers it to be just and equitable under the circumstances, make an order making any member whose shares were acquired liable to the co-operative jointly and severally with the directors, to the extent of the amount paid to the member.
(3) Clause 100 (b) of the Act is amended by striking out "within two years of the declaration".
(4) Subsection 103 (2) of the Act is repealed and the following substituted:
Limitation of liability
(2) A director is liable under subsection (1) only if,
(a) the co-operative is sued in the action against the director and execution against the co-operative is returned unsatisfied in whole or in part; or
(b) before or after the action is commenced, the co-operative goes into liquidation, is ordered to be wound up or makes an authorized assignment under the Bankruptcy and Insolvency Act (Canada), or a receiving order under that Act is made against it, and, in any such case, the claim for the debt has been proved.
(5) Clause 168 (1) (b) of the Act is amended by striking out "within two years".
(6) Subsection 169 (1) of the Act is amended by striking out "within two years from the date of the dissolution and not thereafter" at the end.
31. (1) Subsection 81 (2) of the Corporations Act is repealed and the following substituted:
Limitation of liability
(2) A director is liable under subsection (1) only if,
(a) the corporation is sued in the action against the director and execution against the corporation is returned unsatisfied in whole or in part; or
(b) before or after the action is commenced, the corporation goes into liquidation, is ordered to be wound up or makes an authorized assignment under the Bankruptcy and Insolvency Act (Canada), or a receiving order under that Act is made against it, and, in any such case, the claim for the debt has been proved.
(2) Subsection 321 (1) of the Act is amended by striking out "within one year from the date of such dissolution".
32. Subsection 302 (1) of the Credit Unions and Caisses Populaires Act, 1994 is amended by striking out "within two years from the date of the dissolution and not thereafter" at the end.
33. (1) Subsection 136 (1) of the Electricity Act, 1998 is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
(2) Subsection 136 (2) of the Act is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
34. Section 102 of the Environmental Bill of Rights, 1993 is amended by adding the following subsections:
Same
(5) For greater certainty, a limitation period established under this section conflicts with and is in place of any limitation period set out in the Limitations Act, 2002.
Same
(6) Subsection 19 (5) of the Limitations Act, 2002 does not apply to postpone or suspend a limitation period established under subsection (1) by the application of clause (1) (c).
35. Subsection 100 (6) of the Environmental Protection Act is amended by striking out "subsections 99 (6) to (14)" and substituting "subsections 99 (6) to (12)".
36. Section 47 of the Estates Act is amended by striking out "Limitations Act" wherever it appears and substituting in each case "Trustee Act".
37. Section 33 of the Family Law Act, as amended by the Statutes of Ontario, 1997, chapter 20, section 3, 1997, chapter 25, Schedule E, section 1, 1999, chapter 6, section 25 and 2002, chapter 17, Schedule F, Table, is amended by adding the following subsection:
Same
(2.1) The Limitations Act, 2002 applies to an application made by the dependant's parent or by an agency referred to in subsection (3) as if it were made by the dependant himself or herself.
38. Subsection 43 (6) of the Highway 407 Act, 1998 is amended by striking out "the judge before whom the action is tried is of the opinion" and substituting "a judge finds".
39. (1) Section 206 of the Insurance Act is repealed.
(2) Subsection 258 (2) of the Act is repealed.
(3) The Act is amended by adding the following section:
Limitation period
259.1 A proceeding against an insurer under a contract in respect of loss or damage to an automobile or its contents shall be commenced within one year after the happening of the loss or damage.
(4) Section 272 of the Act is repealed.
(5) Subsection 281 (5) of the Act, as re-enacted by the Statutes of Ontario, 1996, chapter 21, section 37, is repealed.
(6) The Act is amended by adding the following section:
Limitation period
281.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer's refusal to pay the benefit claimed.
Exception
(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,
(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);
(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280 (8).
(7) Statutory condition 12 set out in section 300 of the Act is repealed.
(8) Subsection 301 (6) of the Act is amended by striking out "and statutory condition 12 may be varied by lengthening the period of time prescribed therein" at the end.
40. (1) Subsection 44 (4) of the Land Titles Act is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
(2) Subsection 51 (1) of the Act is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
41. Section 44 of the Legislative Assembly Act is repealed and the following substituted:
Breach of s. 41 a corrupt practice
44. Any contravention of section 41 is a corrupt practice, and an action alleging the contravention may be commenced within the time provided in the Limitations Act, 2002 in the same manner and the procedure shall be the same as in the case of other actions under sections 99 to 111 (Contested Elections) of the Election Act.
42. Subsections 44 (12) and (13) of the Municipal Act, 2001 are repealed and the following substituted:
Same
(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.
43. Subsection 11 (5) of the Ontario College of Art & Design Act, 2002 is repealed and the following substituted:
Deemed vesting in Crown
(5) All property vested in the College shall be deemed to be vested in the Crown for the public uses of Ontario for the purposes of the Real Property Limitations Act.
44. Subsection 17 (1) of the Public Lands Act is amended by striking out "Limitations Act" and substituting "Real Property Limitations Act".
45. Subsection 33 (4) of the Public Transportation and Highway Improvement Act is amended by striking out "but the failure to give or the insufficiency of the notice is not a bar to the action if the judge before whom the action is tried is of the opinion" and substituting "but the failure to give or the insufficiency of the notice is not a bar to the action if a judge finds".
46. (1) Section 11 of the Solicitors Act is amended by striking out "if the application is made within twelve months after payment, and".
(2) Section 25 of the Act is amended by striking out "within twelve months after the payment thereof".
47. Subsection 47 (1) of the Trustee Act is amended by striking out "Limitations Act" and substituting "Limitations Act, 2002".
48. Subsection 15 (4) of the University of Ontario Institute of Technology Act, 2002 is repealed and the following substituted:
Deemed vesting in Crown
(4) All property vested in the university shall be deemed to be vested in the Crown for the public uses of Ontario for the purposes of the Real Property Limitations Act.
49. Section 5 of the Victims' Right to Proceeds of Crime Act, 1994, as amended by the Statutes of Ontario, 1997, chapter 23, section 14, is amended by striking out "Despite subsection 61 (4) of the Family Law Act and section 45 of the Limitations Act" at the beginning.
50. (1) On the later of the day the Schedule to this Act comes into force and the day subsection 4 (5) of the Prohibiting Profiting from Recounting Crimes Act, 2002 comes into force, the Schedule to this Act is amended by adding the following item:
Prohibiting Profiting from
Recounting Crimes Act, 2002 subsection 4 (5)
(2) On the later of the day the Schedule to this Act comes into force and the day subsection 6 (6) of the Prohibiting Profiting from Recounting Crimes Act, 2002 comes into force, the Schedule to this Act is amended by adding the following item:
Prohibiting Profiting from
Recounting Crimes Act, 2002 subsection 6 (6)
(3) On the later of the day the Schedule to this Act comes into force and the day section 17 of the Prohibiting Profiting from Recounting Crimes Act, 2002 comes into force, the Schedule to this Act is amended by striking out the following item:
Victims' Right to Proceeds
of Crime Act, 1994 section 5
Commencement
51. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
52. The short title of the Act set out in this Schedule is the Limitations Act, 2002.
|
SCHEDULE (Section 19) |
|
|
ACT |
PROVISION |
|
Assignments and Preferences Act |
subsections 26 (2) and 27 (2) |
|
Bulk Sales Act |
section 19 |
|
Business Corporations Act |
subsections 157 (2), 185 (18) and (19), 188 (9), (13) and (14), and 189 (5) |
|
Business Practices Act |
subsection 4 (5) |
|
Commodity Futures Act |
section 60.4 |
|
Community Small Business Investment Funds Act |
subsections 40 (8) and (9) |
|
Construction Lien Act |
sections 31 and 36 |
|
Corporations Act |
subsection 37 (2) |
|
Creditors' Relief Act |
subsections 12 (2) and 32 (6) |
|
Drainage Act |
section 111 |
|
Education Act |
subsection 218 (2) |
|
Election Act |
subsection 99 (4) |
|
Environmental Bill of Rights, 1993 |
section 102 |
|
Environmental Protection Act |
subsection 108 (1) |
|
Estates Act |
subsections 44 (2) and 45 (2) and section 47 |
|
Estates Administration Act |
subsection 17 (5) |
|
Expropriations Act |
section 43 |
|
Family Law Act |
subsection 7 (3) |
|
Fines and Forfeitures Act |
subsection 6 (2) |
|
Forestry Workers Lien for Wages Act |
subsections 8 (1) and 26 (1) |
|
Fuel Tax Act |
subsection 8 (13) |
|
Gasoline Tax Act |
subsection 5 (13) |
|
Income Tax Act |
section 38 |
|
Insurance Act |
section 148, statutory condition 14, section 259.1 and section 281.1 |
|
Libel and Slander Act |
section 6 |
|
Liquor Licence Act |
subsection 44.1 (4) |
|
Mortgages Act |
subsections 21 (2) and 54 (2) |
|
Municipal Act, 2001 |
subsections 273 (5), 380 (4) and 415 (2) |
|
Municipal Conflict of Interest Act |
subsections 9 (1) and (3) |
|
Municipal Elections Act, 1996 |
subsections 58 (2), 63 (1), 80 (6) and 83 (2) |
|
Ontario Home Ownership Savings Plan Act |
section 18 |
|
Personal Property Security Act |
subsections 44 (13) and (14) |
|
Public Lands Act |
subsection 34 (3) |
|
Reciprocal Enforcement of Judgments Act |
subsection 2 (1) |
|
Reciprocal Enforcement of Judgments (U.K.) Act |
paragraph 1 of article iii of the Schedule |
|
Remedies for Organized Crime and Other Unlawful Activities Act, 2001 |
subsections 3 (5) and 13 (7) |
|
Securities Act |
section 129.1, subsection 136 (5) and section 138 |
|
Succession Law Reform Act |
section 61 |
|
Tile Drainage Act |
subsection 2 (3) |
|
Tobacco Tax Act |
subsections 6 (10) and 24 (5) |
|
Trustee Act |
subsection 38 (3) |
|
Victims' Right to Proceeds of Crime Act, 1994 |
section 5 |
SCHEDULE C
AMENDMENTS TO
PUBLIC ACCOUNTANCY ACT
1. The definition of "qualifying body" in section 1 of the Public Accountancy Act is repealed.
2. Sections 3, 4 and 5 of the Act are repealed and the following substituted:
Composition of the Council
3. (1) The Council shall consist of the number of members prescribed by the Lieutenant Governor in Council, appointed in accordance with the regulations made by the Lieutenant Governor in Council for terms of office prescribed by the Lieutenant Governor in Council.
Transition
(2) On the day section 2 of Schedule C to the Justice Statute Law Amendment Act, 2002 comes into force, the members appointed and elected under this section as it read before that day are replaced by members appointed under subsection (1) as re-enacted by section 2 of that Schedule C.
3. Subsection 6 (2) of the Act is repealed and the following substituted:
Removal of member
(2) The Council may, of its own motion, remove a member from office for any prescribed cause, and shall do so if requested by the person or body that appointed the member.
4. Section 7 of the Act is amended by striking out "and" at the end of clause (h), by adding "and" at the end of clause (i) and by adding the following clause:
(j) any matter prescribed by the Lieutenant Governor in Council.
5. Subsection 14 (1) of the Act is repealed and the following substituted:
Qualifications for licence
(1) A person is entitled to be licensed under this Act if,
(a) the person applies to the Council in the prescribed manner and pays the prescribed fee;
(b) the Council is satisfied that the person is of good character;
(c) the person is a member of,
(i) The Certified General Accountants Association of Ontario,
(ii) The Institute of Chartered Accountants of Ontario, or
(iii) The Society of Management Accountants of Ontario; and
(d) the person has passed the qualifying examination set by the Council or an equivalent examination prescribed by the Lieutenant Governor in Council after consultation with the Council.
Transitional provision
(1.1) A person who is licensed under this Act on the day section 5 of Schedule C to the Justice Statute Law Amendment Act, 2002 comes into force shall be deemed to have been licensed under subsection (1) on the day the original licence was granted or renewed.
6. (1) Clause 18 (1) (d) of the Act is repealed and the following substituted:
(d) has been found on inquiry held by the Council,
(i) to be guilty of conduct disgraceful to the person in his or her capacity as a public accountant, or
(ii) to meet the conditions prescribed by the Lieutenant Governor in Council,
(2) Subsection 18 (3) of the Act is repealed and the following substituted:
Inquiry
(3) The Council may cause an inquiry to be held if it appears to the Council that a person licensed under this Act,
(a) has been guilty of conduct disgraceful to the person in his or her capacity as a public accountant; or
(b) meets the conditions prescribed by the Lieutenant Governor in Council.
7. Subsection 30 (1) of the Act is amended by striking out "to the qualifying body and to the Attorney General" at the end and substituting "to the Attorney General".
8. (1) Subsection 31 (1) of the Act is amended by striking out "and may make such further provisions" and substituting "and may make such further regulations or other provisions".
(2) Section 31 of the Act is amended by adding the following subsections:
Adoption of codes
(1.1) Without limiting the generality of subsection (1), the Council's power to make regulations may be exercised by adopting by reference, in whole or in part and with such changes as the Council considers necessary, any code, standard, guideline or procedure and requiring compliance with the thing as adopted.
Rolling incorporation
(1.2) If a regulation described in subsection (1.1) so provides, a code, standard, guideline or procedure adopted by reference shall be a reference to it, as amended from time to time, and whether the amendment was made before or after the regulation was adopted.
(3) Subsection 31 (3) of the Act is repealed and the following substituted:
Attorney General may require regulations
(3) The Attorney General may require that the Council make, amend or revoke a regulation that it has the authority to make, amend or revoke, as described in subsection (1).
Lieutenant Governor in Council may make regulation
(4) If the Council does not make, amend or revoke the regulation as required by the Attorney General within 60 days after receiving the Attorney General's requirement in writing, the Lieutenant Governor in Council may make a regulation that carries out the intent of the Attorney General's requirement.
Conflict
(5) A regulation made by the Lieutenant Governor in Council under subsection (4) may amend or revoke a regulation made by the Council under subsection (1) and, in the event of a conflict between the regulation made by the Lieutenant Governor in Council and the one made by the Council, the regulation made by the Lieutenant Governor in Council prevails.
9. The Act is amended by adding the following section:
Regulations made by Lieutenant Governor in Council
31.1 The Lieutenant Governor in Council may make regulations,
(a) prescribing the number of members of the Council and their terms of office;
(b) respecting the appointment of members of the Council;
(c) prescribing matters for the purposes of clause 7 (j);
(d) prescribing an equivalent examination for the purposes of clause 14 (1) (d);
(e) prescribing conditions for the purposes of subclause 18 (1) (d) (ii) and clause 18 (3) (b).
Commencement
10. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 213 and does not form part of the law. Bill 213 has been enacted as Chapter 24 of the Statutes of Ontario, 2002.
The Bill amends the Solicitors Act, enacts the Limitations Act, 2002 and amends the Public Accountancy Act. For convenience, the enactment and amendments are set out in separate Schedules. The commencement provisions for each Schedule are set out at or near the end of the Schedule.
SCHEDULE A
AMENDMENTS TO SOLICITORS ACT (CONTINGENCY FEE AGREEMENTS)
The Schedule amends the Solicitors Act to regulate contingency fee agreements. Contingency fee agreements may not be considered to reduce an award of costs and a client may collect full payment for an award of costs, even if it exceeds the amount payable under an agreement, if the award is to be used to pay the client's solicitor and the solicitor and client have entered into a contingency fee agreement. In this case, the client is only required to pay the amount of the costs to the solicitor and not the amount payable under the contingency fee agreement.
Contingency fee agreements are prohibited in criminal, quasi-criminal and family matters. The amount of a contingency fee can be no more than a maximum percentage of the award as prescribed by regulation, if a maximum percentage is prescribed. Except with approval of the Superior Court of Justice, the maximum amount of a contingency fee cannot exceed the maximum percentage prescribed by regulation. A contingency fee agreement may include an award as to costs, if approved by the court. The amendments allow the Lieutenant Governor in Council to make regulations governing contingency fees.
SCHEDULE B
LIMITATIONS ACT, 2002
The Act deals comprehensively with limitation periods (except those affecting the specialized area of real property).
A basic limitation period of two years is established (section 4), running from the day a claim is discovered (section 5). A claim is discovered when the person with the claim is, or ought to be, aware of the material facts. This basic limitation period replaces the general limitation periods found in the existing Limitations Act and most of the numerous special limitation periods found in individual statutes (see section 19 and the Schedule for a list of the special limitation periods that will be preserved).
The basic limitation period does not run while the person with the claim is unable to pursue it because of being an unrepresented minor (section 6) or incapable person (section 7). Likewise it does not run during the life of an agreement to have an independent third party resolve or assist in resolving the claim (section 11).
When a person with a claim is represented by a litigation guardian in relation to the claim, the discovery rules in section 5 apply to the litigation guardian (section 8). When a potential plaintiff is under disability, a potential defendant may end the suspension or postponement of the running of the limitation period under section 6 or 7 by making an application or motion to have a litigation guardian appointed for the potential plaintiff and meeting other conditions (section 9).
Special rules are established for claims based on assault and sexual assault (section 10). The basic limitation period does not run while the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition. A person who has a claim based on assault and who, at the time of the assault, had an intimate relationship with or was dependent on one of the parties to the assault, is presumed (unless the contrary is proved) to have been incapable of commencing the proceeding earlier than it was in fact commenced. A person with a claim based on sexual assault is presumed (unless the contrary is proved) to have been incapable of commencing the proceeding earlier than it was commenced.
Detailed rules are provided for determining whether claims of a financial nature have been acknowledged, which starts the limitation period running afresh (section 13).
The Act provides that a person against whom another person may have a claim may serve a notice of possible claim on that other person. The service of such a notice may amount to discovery and thus start the limitation period running (section 14).
The Act also establishes an ultimate limitation period of 15 years that runs from the day the act or omission on which the claim is based takes place (section 15). No proceeding may be commenced when the ultimate limitation period has run, irrespective of when the claim was discovered. The ultimate limitation period does not run during the incapacity of the person with the claim, during the person's minority or during any time in which the person against whom the claim is made wilfully concealed essential facts or misled the person with the claim. An ultimate limitation period of two years is established for claims against good faith purchasers for conversion of goods; nothing stops the running of this limitation period.
The Act lists a variety of proceedings in respect of which there is no limitation period (section 16): proceedings for declarations; proceedings to enforce court orders and other orders that are enforceable in the same way as court orders; proceedings under the Family Law Act relating to support; proceedings to enforce arbitration awards; proceedings by persons in possession of collateral to redeem or realize on it; proceedings arising from sexual assault in certain circumstances; proceedings to recover fines, taxes and penalties owing to the Crown; proceedings relating to claims by the Crown (or by a delivery agent under social welfare legislation) in various circumstances; proceedings to recover money owing in respect of certain student loans, awards and grants. There is also no limitation period in respect of undiscovered environmental claims (section 17). Sections 16 and 17 prevail over section 15.
The Act contains a number of general provisions dealing with technical matters (sections 18 to 24). The most significant of these is section 19, which provides that limitation periods set out in other statutes are of no effect unless they are preserved by being listed in the Schedule. These special limitation periods, like the new limitation periods established by the Act, do not run during the incapacity or minority of the person with the claim or while the claim is submitted to an independent third party for resolution.
Detailed rules are provided for the treatment of claims that arose before the coming into force of the new Act (section 24).
The Act repeals and amends numerous provisions of other statutes that relate to limitation periods (sections 25 to 49). The portion of the existing Limitations Act that deals with real property is preserved and retitled Real Property Limitations Act (section 26).
SCHEDULE C
AMENDMENTS TO
PUBLIC ACCOUNTANCY ACT
The Schedule makes a number of amendments to the Public Accountancy Act.
Currently The Public Accountants Council for the Province of Ontario consists of 15 members, 12 of whom are appointed by the council of The Institute of Chartered Accountants of Ontario and three of whom are elected by licensed public accountants. This is replaced by a provision under which the composition of The Public Accountants Council is established by regulations made by the Lieutenant Governor in Council.
The Lieutenant Governor in Council may prescribe, by regulation, additional functions for The Public Accountants Council.
The qualifications for being licensed currently include membership in The Institute of Chartered Accountants of Ontario. This is replaced by a reference to membership in any one of three organizations: The Certified General Accountants Association of Ontario, The Institute of Chartered Accountants of Ontario and The Society of Management Accountants of Ontario.
The Schedule adds to the grounds on which a public accountant's licence may be revoked after an inquiry held by The Public Accountants Council. The licence may be revoked if the inquiry finds that the licence holder meets prescribed conditions. These conditions are to be prescribed by the Lieutenant Governor in Council after consultation with The Public Accountants Council.
The Public Accountants Council may exercise its regulation-making powers by adopting by reference any code, standard, guideline or procedure.
The Attorney General may require The Public Accountants Council to make, amend or revoke a regulation, and if it does not do so within 60 days, the Lieutenant Governor in Council may make a regulation that carries out the intent of the Attorney General's requirement.