Limitation of Actions Consultation - Law Commission

particular cause of action, which may require a longer limitation period. 126
There
is little evidence to suggest that a three year limitation period running from
discoverability would not be sufficient for all contract and tort claims. However, a
change from six years to three years would represent a substantial reduction to the
limitation period for contract claims: though the change in the starting date, from
the accrual of the cause of action to the date of discoverability, will in many cases
give the plaintiff longer to prepare the claim, in the majority of cases the plaintiff
can be expected to know the relevant facts when the cause of action accrues or
shortly thereafter. It may therefore be more appropriate to set the initial
limitation period at four years.
12.95 Arguments could be made in favour of a shorter period than three years, 127
but it is
unclear whether a period of two years has significant advantages over the three
years period. A period of one year would in our opinion be too short. 128
We
provisionally recommend that the uniform limitation period within the
core regime should be three years. We ask consultees:
(1) Do you agree with that provisional recommendation?
(2) Would you prefer a limitation period of four years? or
(3) What period (other than three or four years) do you consider is
more appropriate?
12.96 What one considers to be an appropriate limitation period is likely to
depend on one’s preferred starting date. The above provisional
recommendation assumes a discoverability starting date. We ask those
consultees who have favoured a different starting date than discoverability
(that is, who have favoured one of the options 2 - 5 in paragraphs 12.14 to
12.20 above) to say what limitation period they consider appropriate in
respect of their preferred starting date.
3 A LONG-STOP?
12.97 Questions arising here are:
(1) Is there a need for a long-stop period?
(2) If there is to be a long-stop, what should that period be, and from what
date should it start?
126 See para 12.90, n 119 above.
127 As the preference of Canadian jurisdictions for the two year period demonstrates.
128 Although a one year period currently applies to defamation actions, this is coupled with a
judicial discretion to disapply the limitation period where it appears to the court that it
would be equitable to do so (Limitation Act 1980 s 32A). We note that when the Alberta
Law Reform Institute considered a general limitation period of one year, it decided that this
was too short to permit settlement negotiations to take place (see Institute of Law Research
and Reform, Alberta: Limitations, Report for Discussion No 4 (1986), para 2.143).
283