Limitation of Actions Consultation - Law Commission

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(2) A person who is “in fact incapable of or substantially impeded in the management of his affairs” (British Columbia Limitation Act RSBC 1979, s 7(5)). 165 (3) “An adult who is unable to make reasonable judgments in respect of matters relating to the claim” (Alberta Limitations Act 1996, c L-15.1, section 1(i)). 166 (4) Incapacity by reason of “impairment of ... physical or mental condition, restraint of ... person, and ... war or warlike operations or conditions provided that the claimant proves that [the] incapacity resulted in his or her being actually incapable of (or substantially impaired in) managing their affairs in relation to the claim for a continuous period of 28 days or more” (New Zealand Law Commission). 167 (5) A person “incapable of the management of his or her affairs because of disease or impairment of his or her physical or mental condition” (Newfoundland Limitations Act 1995, section 15(5)). 168 (6) A person “incapable of commencing a proceeding in respect of a claim because of his or her physical, mental or psychological condition, or because of physical restraint, war or war-like conditions” (Ontario Limitations (General) Bill 1992, clause 9). 169 12.120 Furthermore, the Ontario Limitations Act Consultations Group recommended that specific provision be made for victims of sexual abuse. 170 The draft bill introduced to implement its recommendations provided that 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 mental or psychological condition. 171 the current definition of “disability” in other Australian jurisdictions, see paras 10.62 - 10.65 above. 165 Implementing the recommendations of the Law Reform Commission of British Columbia, Report on Limitations Part 2 - General, LRC 15 (1974), p 71. 166 Implementing the recommendations of the Alberta Law Reform Institute, Limitations, Report No 55 (1989), p 41. 167 Report No 6, Limitation Defences in Civil Proceedings, NZLC R6 (1988), para 258. Under s 2(2) of the New Zealand Limitation Act 1950, a person “shall be deemed to be under a disability while he is an infant or of an unsound mind”. See further para 10.82 above. 168 Implementing the recommendations in Newfoundland Law Reform Commission, Report on Limitation of Actions, NLRC-R1 (1986), Chapter VII, para 6. 169 The current definition of “disability”, under the Limitations Act 1990, is derived from the English Real Property Limitations Acts 1833 and 1874. See para 10.101, n 325. 170 Ontario Limitations Act Consultations Group, Recommendations for a New Limitations Act, Report of the Limitations Act Consultation Group (1991), recommendation 9, pp 30 - 31. 171 Ontario Limitations (General) Bill 1992, clause 9(1). 293
It is also provided that 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. 172 12.121 Newfoundland also protects victims of sexual abuse, both by providing that in some circumstances there is no limitation period for actions arising from sexual misconduct, 173 and otherwise by extending the concept of disability to include those who are “for the purpose of an action for misconduct of a sexual nature not under section 8(2), incapable of commencing that action by reason of his or her mental or physical condition resulting from that sexual misconduct.” 174 12.122 Alberta gives limited protection to victims of sexual abuse by providing that minors are deemed to be disabled by minority in the case of actions against a parent, or, in the case of actions relating to sexual abuse or sexual misconduct, in actions against any person. 175 This relieves victims of sexual abuse from the presumption that minors in the actual custody of a parent or guardian are not under a disability, 176 but does not extend the disability beyond majority. 12.123 We have recently reviewed generally the concept of “mental disability” 177 in the context of an examination of the ways in which decisions may lawfully be made on behalf of those unable to make decisions for themselves. 178 It was recommended that the focus should shift from “mental disability” to a “lack of capacity”, which could have causes other than mental disability. It was recommended that the following definition should apply: (1) A person is without capacity if at the material time: 172 Ontario Limitations (General) Bill 1992, clause 9(3). 173 Under s 8(2) of the Newfoundland Limitations Act 1995, where “a person who commits misconduct of a sexual nature against another person (a) is in a position of trust or authority with respect to that other person; (b) has a financial, emotional, physical or other dependent relationship with the other person; or (c) has charge of the other person, the person against whom the sexual misconduct occurred is not governed by a limitation period and may bring an action arising from that sexual misconduct at any time.” 174 Newfoundland Limitations Act 1995, s 15(5)(c). 175 Limitations Act c L-15.1 1996 s 5, as amended by the Justice Statutes Amendment Act 1997 (given the Royal Assent on 18 June 1997, but not yet proclaimed). 176 See n 201 below. 177 Used instead of “mental disorder” in part because of the derogatory implications felt to be attached to the concept of a “disorder” and to distinguish the review from the language of the Mental Health Act 1983. See Mental Incapacity (1995) Law Com No 231, paras 3.10 - 3.12. 178 See Mental Incapacity (1995) Law Com No 231. 294
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Act Nature of Action Race Relations
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Act Nature of Action Compulsory Pur
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Act Nature of Action Companies Act
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Act Nature of Action Ibid, Schedule
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Act Nature of Action Town and Count
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PART VIII FACTORS WHICH POSTPONE TH
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(a) the period applicable in accord
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ended in 1993. 25 But, as the next
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not mean ‘concealed’, since any
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supported by the wording of this ph
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(4) Proviso to Section 32 8.23 By r
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3. ACKNOWLEDGEMENT AND PART PAYMENT
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further agreement by the parties. 8
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of discrete debts, and those where
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(3) Acknowledgements and Part Payme
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PART IX ADDITIONAL ISSUES 1 WHAT HA
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2 WHAT THE PLAINTIFF NEEDS TO DO TO
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that the defendants were also debar
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laches cannot be invoked where ther
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emedy, 52 so that, for example, a p
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granted. Under section 13(4) of the
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actions under Order 15, rule 1(2) o
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the court from allowing the action
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9.37 It appears, therefore, that su
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SECTION B: OTHER JURISDICTIONS PART
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Law Reform (Miscellaneous Provision
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(who may not be immediately identif
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for personal injuries; actions for
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corresponding English provision. 64
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1980 78 ] are so obvious that the e
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10.40 Under the 1991 Act, an action
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10.44 There are two exceptions to t
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(7) Factors Postponing the Running
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except in the Northern Territory, w
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fraudulent breach of trust or the r
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(b) while he is, for a continuous p
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causes of action. A confirmation is
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action. 206 As in England and in ot
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discoverable. 228 Moreover, one sho
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(6) Actions in respect of Land 10.7
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5. CANADA 10.85 Statutory rules of
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(3) Latent Damage 10.90 Nearly all
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Central Trust Co v Rafuse, 301 a pr
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the new Limitations Act in Alberta
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periods may apply for the different
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10.112 Below we shall examine three
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product liability, 362 although the
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disguise the nature or the effect o
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general, parties cannot renounce fi
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(vii) A one-year period 425 applies
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prescription is suspended as agains
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the same manner as under the Limita
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10.155 In relation to hidden defect
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at achieving a settlement. 512 Simi
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evision and extension of the ground
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Page 257 and 258: which the demand was made. We would
Page 259 and 260: (c) that the injury, assuming liabi
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Page 263 and 264: ecommended a definition of knowledg
Page 265 and 266: 12.43 A final question is the exten
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Page 269 and 270: 12.56 We are of the view that a sim
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Page 277 and 278: However, we do not believe that it
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Page 281 and 282: 12.92 It should also be remembered
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Page 337 and 338: If consultees do not agree, we ask
Page 339 and 340: (2) To What Extent should the Core
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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