Limitation of Actions Consultation - Law Commission

statute 308
time should run against the plaintiff when she was reasonably capable of
discovering the wrongful nature of the acts perpetrated against her and, by a
majority, 309
that it should be presumed that a plaintiff in these circumstances would
not discover the connection between the abuse and the injuries suffered until
therapy began. Moreover, the court unanimously held that in any case the
defendant had committed a breach of fiduciary duty, to which no limitation period
applied under the Ontario legislation. 310
(4) Actions in respect of Land
10.99 The most common limitation period in relation to actions to recover land is one of
10 years from the date when the right of action accrues, 311
with that date being
deemed to be the date of dispossession, if the plaintiff is dispossessed. In New
Brunswick, Nova Scotia and Prince Edward Island the commencement date is the
same, but the limitation period is 20 years. 312
However, there is an essential
inconsistency between the Canadian system of land registration, where registration
as proprietor confers a title which is indefeasible, and the doctrine of adverse
possession, which operates to defeat the title of a legal owner. This inconsistency
was recognised by the Law Reform Commission of British Columbia in its 1974
Report, and its recommendation that there should be no limitation period where
an owner was dispossessed in circumstances amounting to trespass 313
was
implemented in 1979. 314
The Law Reform Commission of Saskatchewan took a
similar view, 315
although its recommendation has not become law. The same
inconsistency was also recognised by the law reform bodies of Ontario and Alberta
in their reviews of limitation statutes. Both took the view that such a review was
not the appropriate place to reform the law as regards adverse possession, 316
but
308 Ontario Limitations Act, RSO 1990, s 45(1)(j).
309 La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ; Sopinka and McLachlin JJ
dissenting.
310 A defence of laches could be raised, but this was rejected on the facts.
311 Manitoba Limitation of Actions Act, RSM 1987, s 25; Newfoundland Limitations Act
1995, s 7(g); Ontario Limitations Act, RSO 1990, s 4; Saskatchewan Limitation of
Actions Act, RSS 1978, s 18; Northwest Territories Limitation of Actions Act, RSNWT
1987, s 18; Yukon Limitation of Actions Act, RSY 1986-1990, s 17.
312 New Brunswick Limitation of Actions Act, RSNB 1973, s 29; Nova Scotia Limitation of
Actions Act, RSNS 1989, s 10; Prince Edward Island Statute of Limitations, RSPEI
1988, s 16.
313 Report on Limitations Part 2 - General, LRC 15 (1974), p 50.
314 British Columbia Limitation Act, RSBC 1979, s 3(3)(a). See also s 12.
315 Proposals for a New Limitation of Actions Act Report to the Minister of Justice (1989) pp 23 -
25.
316 See Ontario Law Reform Commission, Report on Limitation of Actions (1969), pp 66 - 67;
Alberta Law Reform Institute, Limitations, Report No 55 (1989), pp 39 - 40. Cf Limitations
Report for Discussion No 4 (1986), pp 208 - 213, in which the Alberta Law Reform
Institute provisionally recommended the abolition of limitation periods for the recovery of
real (and personal) property.
217