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-3-Composition of the GroupOf course, to keep the size of group within productive bounds, it wasnot possible to include representatives of every special interest.Consequently invitations were issued to a number of organizationsthat had been most involved in commenting on the 1977 discussionpaper and on the 1983 Bill 160, having regard also to the impact onthem of the discovery principle and the extent to which theyillustrated problems in related fields.This resulted inrepresentatives from the Ontario Medical Association, the OntarioHospital Association, the Association of Municipalities of Ontario,the Council of the Ontario Construction Association, and designprofessionals (Association of Professional Engineers of Ontario,Consulting Engineers of Ontario, and the Ontario Association ofArchitects), and the Insurance Bureau of Canada.As many of the reform proposals pay particular attention to theproblems of the disabled, the Advocacy Resource Centre for theHandicapped was invited to participate.The Ontario Women’s Directorate agreed to represent the concerns ofsexual assault victims.Since the vast majority of the present Act consists of real propertylimitation periods, the Director of Titles for the Ministry ofCommercial and Consumer Relations was asked to participate.The Crown is a major litigant and the beneficiary of many speciallimitation periods, as well as a representative of the publicinterest, and therefore a senior member of the Crown Law Office-Civil was invited to participate.The Canadian Bar Association - Ontario, as author of a comprehensivesubmission on reform and the most widely-based voluntary lawassociation was also an essential participant.The problem of the lack of an organization solely representinginterests of plaintiffs was addressed in part by the addition ofProfessor Nathalie desRosiers of the University of Western OntarioFaculty of Law as a member at large.The Policy Development Division of the Ministry of the AttorneyGeneral co-ordinated the meetings of the Consultation Group, preparedissues papers, and provided support services.GENERAL OVERVIEW: THE BASIC SCHEMEIn formulating its recommendations, the Consultation Group has beenguided by the Supreme Court of Canada’s adoption of the discoveryprinciple and by the recommendations of the Canadian Bar Association- Ontario and the Alberta Law Reform Institute, (among others) forimplementing the discovery principle.

--4A Uniform Two Year Limitation PeriodThe Consultation Group recommends a single limitation period of twoyears from the time of the act or omission for the commencement ofany civil proceeding (except those not subject to any limitationperiod).The two year period is based on a reasonable amount of timefollowing the wrongful conduct to obtain legal advice, consider theoptions and initiate legal proceedings if necessary.Discovery PrincipleIt is assumed that in the vast majority of cases the plaintiff willbe aware of the wrongful conduct at the time it occurs.However, inthose cases where the plaintiff does not have knowledge of thematerial facts, then the two year period would not begin until he orshe acquired the knowledge or ought to have acquired it.TheConsultation Group agrees with the discussion paper of the AlbertaLaw Reform Institute that there are no rational grounds for differentlimitation periods for different types of claims, provided that thelimitation period may be postponed if the plaintiff does not haveknowledge of the claim.Knowledge of material facts will be determined by reference to fourspecific criteria, including the significance of the harm.Constructive Knowledge;Burden of ProofAround this fundamental principle, certain clarifications, limits andexceptions have been built.First, knowledge may be attributed tothe plaintiff who shows no diligence.Secondly, the burden is placedon the plaintiff to show that he or she did not have the requisiteknowledge at the time of the act or omission giving rise to theclaim.Thirty Year Ultimate Limitation PeriodThirdly, an ultimate limitation period would be imposed, so that evenif the claim were not discovered it would be barred after 30 years,or after 10 years in exceptional cases.Shorter Ultimate:Special CasesDuring the course of its deliberations the Consultation Group heardcompelling arguments in favour of an ultimate limitation periodshorter than 30 years in exceptional cases.However, it was notprepared to recommend even in these cases an ultimate limitationperiod of less than 10 years.Criteria for Shorter Ultimate Limitation PeriodBecause it was not possible for the Consultation Group to considerevery special limitation period now in existence, the Grouprecommends what it believes to be rigid criteria that the governmentshould apply in assessing whether to enact a shorter

ultimate limitation period.The government is asked to weigh theavailability of evidence to the defendant, the cost of maintainingrecords, and the cost and availability of insurance against thelikelihood of meritorious claims arising after 10 years.Minors and Persons with IncapabilitiesSpecial recognition of the legal impediments faced by minors andothers lacking certain legal capabilities would be preserved andextended, so that the two year limitation period would not beginuntil the minor reached adulthood or a person with certainincapabilities acquired the ability to pursue the claim.Inrecognizing incapabilities that impede pursuit of a claim, theConsultation Group recommends that persons be dealt with on the basisof their own capabilities and with respect to the particular claim inissue.This would broaden the present law which provides the benefitof a postponed limitations period only to those who are completelyincapable of managing any of their affairs.Under the proposedrecommendations an individual assessment of the plaintiff’scapabilities would be made with respect to the particular claim.Moreover, for those suffering long-term incapabilities the ultimatelimitation period would not operate.Appointment of Litigation Guardian;Notice to ProceedFor defendants who could be indefinitely exposed to undiscoveredliability, procedures are recommended whereby they could begin thelimitation clock.In the case of minors and those who are incapablethe defendant could obtain a court order appointing a litigationguardian.In the case of any other potential plaintiff, thedefendant could start time running by giving a notice to thepotential plaintiff setting out the material facts.Victims ofSexual AssaultSpecial provision is made for victims of sexual assault.In view ofthe extraordinary vulnerability of victims in a relationship of trustor dependence with the defendant and the enduring trauma resultingfrom violation of that relationship, and having regard to societalabhorrence of such conduct, the Consultation Group recommends thatthere be no limitation period whatsoever on sexual assaults occurringin or as a result of a relationship of authority, trust ordependency.

6 Victims of Non-sexual Assaults and Sexual Assaults by a "Stranger"In addition, the Consultation Group considered it likely that in manycases the same psychological impediments to legal action would followfrom sexual assault outside a proximate relationship and from nonsexual assaults within proximate relationships (domestic assault,child abuse).However, since the nature of the conduct constitutingsexual assaults and other physical assaults is so diverse, it couldnot be conclusively presumed that every victim would be traumatized.Therefore it is recommended that there be a rebuttable presumptionthat a victim of these types of assault is incapable of pursuing theclaim and is therefore entitled to postponement of the limitationperiod.So, for example, if the plaintiff brings the claim 10 yearsafter the assault, the defendant would have to prove that theplaintiff had or should have "discovered" the claim and was capableof pursuing it at least two years before the current claim.Claim Not Subject to Limitation ProvisionsIn common with limitations reform proposals elsewhere, theConsultation Group recommends that such matters as provincial offenceproceedings, judicial review procedures, proceedings to enforcejudgmentsand applications for declarations that seek no judicialremedy not be subject to these limitation recommendations.Schedule of Limitation PeriodsTo avoid a return to the present state of the law where limitationprovisions are hidden away in dozens of statutes, it is recommendedthat no limitation period in another statute have effect unless it isreferred to in a schedule to the proposed new legislation.Notice of ClaimProvisions barring proceedings where a notice of claim has not beengiven to the defendant would no longer be effective unless thedefendant could prove prejudice arising from the failure to givenotice.Extinguishment of TitleIt is recommended that upon expiration of the 30 year ultimatelimitation period that not only the remedy be barred, but that theright and title on which it is based be extinguished.Real Property Limitation PeriodsIt is recognized that limitation periods on actions to recover landand charges on land may warrant different treatment than personalactions.Pending a comprehensive review of Part I of the presentLimitations Act, a recommendation is made to review

-7-the relevant corresponding provisions of Billphase of real property limitation reform.160 as a possible firstApplicability to the CrownThe non-government members of the Consultation Group stronglyrecommend that the Crown be made subject to the new Act.TransitionThe new scheme would apply to any act or omission that occurredbefore the effective date of the new legislation provided that theold limitation period had not expired.This will result in theextension of some limitation periods to a maximum of two years andthe shortening of others to two years if a longer period wouldotherwise have applied.In view of the seriousness of assault and sexual assault the newscheme would apply to those cases even if the old limitation periodhad already expired.Matters Outside Scope ofthe ReviewThe Consultation Group did not consider limitation periods forbringing applications before administrative tribunals.Therefore noposition is taken with respect to such matters.As noted above, no substantive recommendations are made regardingreal property limitations.Moreover, it should be particularly notedthat the Consultation Group made no attempt to address issuesrelating to aboriginal land claims.Accordingly, the recommendationsare not intended to prejudice any review of those issues.

8SUMMARY OF RECOMMENDATIONS FOR A NEW LIMITATIONS ACT-PART II:-1.In these recommendations,"claim" means a matter giving rise to a proceeding in a court;"defendant" includes respondent;"plaintiff" includes applicant;"sexual assault" means an assault of a sexual nature.2.These recommendations apply to any claim,except(a)a proceeding to which the Provincial Offences Act applies;(b)an application for judicial review;(c)an application for a declaration;(d)an application to enforce a judgment or order of a courtor an award in an arbitration to which the ArbitrationsAct applies;(e)an action by a debtor in possession of collateral toredeem the collateral;(f)an action by a creditor in possession of collateral torealize on the collateral;(g)an action arising from a sexual assault if at the time ofthe assault one of the parties to the assault was(h)(i)in a position ofthe plaintiff,trust or authority with respect to(ii)a person with whom the plaintiff was in arelationship of financial, emotional, physical orother dependency,(iii)a person having charge ofthe plaintiff;andan application for an appeal or review for which time islimited by any Act or rule of court.3.No proceeding shall be commenced after the expiration of twoyears after the date of the act or omission on which the claimis based.4.The two year period referred to in Rec.run until either,(1)the plaintiff has knowledge,(a)ofthe injury,loss or damage.3shall not begin to

-(2)9-(b)that the injury, loss or damage was caused orcontributed to by the act or omission of thedefendant,(c)of(d)of the significance of the injury,relative to the claim; orthe identity ofthe defendant,andloss or damagea reasonable person in the circumstances and with theabilities of the plaintiff ought to have the knowledgereferred to in clauses 1(a) to (d),whichever comes first.The burden of proving that the plaintiff did not have theknowledge referred to in Rec. 4(1)(a) to (d) is on theplaintiff.The provisions of Rec. 4 concerning postponement of thelimitation period should not apply to the detriment of apurchaser for value acting in good faith.(1)Where the plaintiff, including a personal representativeof a deceased person, is a successor owner of a claim, forthe purposes of Rec. 4 (determining knowledge of claim),as between the predecessor owner and the successor owner,the relevant knowledge is the knowledge that was firstacquired or ought to have been first acquired.(2)Where the plaintiff is a principal, for the purposes ofRec. 4 (determining knowledge of claim), as between theprincipal and an agent having a duty to communicate theknowledge in Rec. 4(1), the relevant knowledge is theknowledge that was first acquired by either of them, orought to have been acquired by the principal.Where a person having a claim dies, and the claim wouldbarredby the expiration of a limitation period withinyear of the person’s death, the limitation period shalldeemed not to expire before one year after the person’sbeonebedeath.

-9(1)10-The two year period for commencing proceedings (Rec. 3) shallnot begin to run, where at the time of the act or omission,(a)the plaintiff was a minor and no litigation guardianhas been appointed in respect of the claim, untilthe plaintiff ceases to be a minor; or(b)the plaintiffis,or was rendered,(i)mentally incompetent,(ii)of unsound mind,(iii)with respect to the claim, incapable ofpursuing the claim because ofor(A)physical, mental or psychologicalcondition,(B)physical restraint,(C)war or war-like operations or relatedcircumstances,orand no litigation guardian has been appointed,the condition terminates.until(2)The burden of proving entitlement to postponement under thisRecommendation is on the plaintiff.10.Despite Rec.(a)(b)9(2),for the purposes of,an action arising from sexual assault to which theserecommendations apply (sexual assault by a "stranger");an action arising from assault where at the time ofassault one of the parties to the assault wasorthe(i)living with the plaintiff in an intimate andpersonal relationship, or(ii)a person with whom the plaintiff was in arelationship of financial, emotional, physical orother dependency;unless the contrary is proven on a balance ofprobabilities, the plaintiff shall be presumed to be aperson to whom Rec. 9(1)(b)(iii)(A) applies (incapable ofpursuing the claim because of physical, mental orpsychological condition).

-11-(1)Where a condition referred to in Rec. 9(1)(b)(incapability) arises after the two year period has begunto run, the running of time should be suspended for theduration of the condition, but in no case shall thelimitation period expire before 6 months after thecondition terminates.(2)An agreement to submit a claim to an alternative disputeresolution process before commencement of proceedingsshall be deemed to suspend the operation of the limitationperiod in Rec. 3 until the dispute is concluded or thedefendant withdraws from the process.(1)Where the two year period would be postponed under Rec. 9,(minority, "incapability”), any person may apply to thecourt for the appointment of a litigation guardian for theminor or person incapable in respect of a potential claim.(2)Upon appointment of a litigation guardian in respect of aclaim, the two year period for commencing proceedingsshall begin to run in respect of that claim.Despite Rec. 4 (undiscovered claims) no proceeding shall bebrought after the expiration of 30 years after the date of theact or omission on which the claim is based.The operation of a limitation period provided by Rec. 13(ultimate limitation) is suspended during any period of timethat,(a)the plaintiff is in a condition referred to in Rec.9(1)(b) (incapability), or(b)the defendant fraudulently concealed any fact referred toin Rec. 4(1)(a) to (d) (elements of knowledge).(1)In exceptional cases, a special ultimate limitation periodof not less than 10 years may be created.(2)The government should not prescribe a special ultimatelimitation period unless it is clearly in the publicinterest, having regard to,(a)(i)the likelihood of continuing changes in thestandard of care, and(ii)the difficulty of obtaining evidence ofearlier standard of care;the

-12-(b)the effect of potential liability in excess of 10years on obtaining liability insurance orparticipating in another indemnification scheme; or(c)the effect of potential liability in excess ofyears on the costs of retaining records; and(d)the unlikelihood of meritorious claims arising after10 years.1016.Upon the expiration of 30 years from the act or omission underRec. 13, or the further period applicable in accordance withRec. 14 (suspension for fraud or ’’incapability”), the claimand the right or title on which it is based are extinguished.17.(1)No party shall be added to any proceeding previouslycommenced, through an amendment of pleadings in respect ofa claim to which the party is immune to liability byreason of expiration of the relevant limitation period.(2)Paragraph 1 shall not be construed to prohibit thecorrection of a misdescription of a party.18.For the purposes of Rec. 3, (commencement of the limitationperiod), in an action by a tortfeasor for contribution andindemnity against another tortfeasor, the date of the act oromission should be deemed to be the date when the tortfeasorwas served with the claim by the plaintiff.19.(1)Subject to Rec. 9 (minors, ’’incapability”), where a personconsiders that another person has a claim against him orher, he or she may cause a notice to proceed to be givento the other person, at which time the limitation periodbegins to run.(2)Despite paragraph (1), the limitation period shall notbegin where the person receiving the notice proves thatupon receiving the notice, he or she did not haveknowledge of the significance of the injury, loss ordamage and that a reasonable person in the circumstancesand with his or her abilities would not have thatknowledge.(3)A notice to proceed shall,(a)be in writing;(b)specify the circumstances out of which a claimmay arise or may be alleged to arise, including

(i)20.- 13 a description ofloss or damage,the suspected injury,{ii)the extent to which the injury, loss ordamage was caused or contributed to bythe party on whose behalf the notice toproceed is given, and(iii)the identity of the party on whosebehalf the notice to proceed is given;(c)give warning that any claim arising out of thecircumstances stated in the notice is liable tobe extinguished;(d)state the name and address for service of theperson on whose behalf the notice is given; and(e)be signed by the person giving the notice orhis or her solicitor.(4)Paragraph (1) operates to benefit only a person on whosebehalf the notice is given and only in respect of a claimarising out of the circumstances specified in the notice.(5)A notice to proceed given under this provision is not anacknowledgment for the purposes of these recommendationsand is not an admission for any purpose.(1)In this recommendation "acknowledgment” means,(2)(a)an acknowledgment in writing signed by the personmaking it or his or her agent; or(b)a part payment made by a debtor or his or her agent.Where,(a)a person makes an acknowledgment of a claim for therecovery of property or a liquidated sum or forenforcement or relief from enforcement of a chargeon property; and(b)the acknowled

Shipley Convenor Mona Anis . for the Advocacy Resource Centre for the Handicapped Paul Bates for the Association of Professional Engineers of Ontario, Consulting Engineers of Ontario, Ontario Association of Architect: for the Canadian Bar Association-Ontario . Randy Bundus / for the Insurance Bureau of Canada . Prof. Nathalie des Rosiers Member .