Limitation of Actions Consultation - Law Commission

absolute bar but would be subject to qualifications). 30
The Alberta Institute for
Law Reform also recommended that the expiry of the proposed long-stop period
should bar the remedy rather than extinguish the right, on the ground that
extinguishing rights is not the objective of a limitations system (though they also
noted that a right without a legal remedy is not a right at all). 31
Consequently the
Alberta Limitation Act 1996 provides that on the expiry of the limitation period
the defendant is entitled to immunity from liability. 32
It makes no provision for the
extinction of the plaintiff’s rights. Finally, the Western Australia Law Reform
Commission has recommended that the expiry of the limitation period should
continue to bar the remedy rather than extinguish the right, on the grounds that
this would preserve the principle that the defendant could choose not to plead the
limitation defence but to defend on the merits of the case. 33
14.19 It appears that there has been a move away from recommending that the expiry of
a limitation period should extinguish the right. That is, the latest reports from
Alberta, New Zealand and Western Australia, as opposed to the earlier reports
from New South Wales, Ontario, British Columbia and Newfoundland, do not
recommend that the expiry of a limitation period should extinguish the right. In
part this rests on certain presumptions as to the purpose of a limitations system,
namely that it is not the purpose of limitation law to extinguish rights. 34
Another
important factor is the desire to preserve the requirement that a limitation defence
must be specifically pleaded by the defendant. Though Newfoundland Law
Reform Commission felt able to combine this requirement with a
recommendation that rights should be extinguished, this is not logically consistent.
If the plaintiff’s right has been extinguished by the passage of time, the fact that
the defendant does not plead the defence should not be sufficient to restore that
right.
14.20 The area where maintenance of the principle that the expiry of the limitation
period bars the remedy rather than extinguishing the right caused most problems
was in private international law. Given that the limitation period merely barred the
remedy, English courts regarded the English law on limitation as procedural, and
in consequence applicable as part of the lex fori, even where a foreign substantive
law applied. The problems this created have been rectified by the Foreign
Limitation Periods Act 1984.
14.21 Otherwise, a change to limitation extinguishing rights would abolish a number of
rules of law, examples of which we have set out in paragraph 9.2 above. We see no
30 New Zealand Law Commission, Report No 6, Limitation Defences in Civil Proceedings, NZLC
R6 (1988), para 308.
31 See Institute of Law Research and Reform, Alberta: Limitations, Report for Discussion No
4 (1986) Chapter 9; Alberta Law Reform Institute, Limitations, Report No 55 (1989) and
Alberta Limitations Act 1996.
32 See s 3(1).
33 See Report on Limitation and Notice of Actions, Project No 36 - Part II (1997), paras 7.65 -
7.67.
34 See Institute of Law Research and Reform, Alberta, Limitations, Report for Discussion No 4
(1986), para 9.1.
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