Legal Blog
It wasn’t my fault
Thursday, February 07, 2008
Traditionally, the common law has not been sympathetic to solicitors who miss a limitation period for starting a legal action. While the discoverability principle developed by the courts provides some relief it is largely discretionary and the law is still not crystal clear. Moreover, to proceed with a claim by relying on the discoverability principle has the potential to have dire consequences later.
Thankfully, the case of Joseph v. Paramount Canada’s Wonderland provides some additional assistance to Plaintiff's counsel.
In Joseph v. Paramount the Plaintiff was injured in an accident in September 2004. Within weeks, the Defendant was notified of the Plaintiff’s intention to advance a claim for damages. The Defendant obtained a written statement from the Plaintiff and was provided with medical documentation of the Plaintiff’s injures well within the limitation period. The Plaintiff’s solicitor was aware of the applicable two-year limitation period. He dictated a Statement of Claim and instructed his assistant to have it issued before the expiry of the limitation period. Due to the assistant’s inadvertence, the claim was not issued within the limitation period. It was issued in October 2006 and was formally served upon the Defendant in January 2007. The Defendant brought a motion to dismiss the action as statue barred.
The court held:
The motion was dismissed. The limitation period was not missed due to bad faith or negligence, and the Defendant would not be prejudiced if the action was permitted to go forward. The inadvertence of the solicitor’s assistant should not be visited on the Plaintiff.
This is a blockbuster ruling. The fundamental principle to take away is that the limitation was not missed due to bad faith. How many prudent solicitors in good standing would deliberately and willfully decide to miss a limitation period? Likely, none. In fact, it’s just the opposite. Most solicitors fret over missing a limitation, by diarizing it, tickling it and then getting their assistants to perform back up tickling to ensure everybody has a reminder not to miss the limitation.