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How Long Do You Have To Make A Claim?

We’ve written previously about how limitation periods work, and in many circles they’re generally common knowledge. Most parties who want to make a legal claim have two years to do so, or else the Limitations Act, S.O. 2002 protects that possible defendant by stating that the claim is ‘statute barred’ or legally null and void after the two-year mark. 

There is of course a logical reason for this. It’s impractical to tie up the courts with things that happened years, if not decades ago. A lack of limitations would create an ‘open season’ in the legal system, where anyone could make a claim for a past wrongdoing no matter how long after the fact.

The other challenge is the preservation of evidence. It is difficult enough in some circumstances to preserve evidence for two years, let alone getting detailed accounts from witnesses. Memory can be fallible, dates and names become confused, and our memory of something from 5 or 10 years ago is much less clear than something from 5 or 10 months ago.

There are exceptions within the Limitations Act (the “Act”), such as those involving claims brought by minors (for when they turn 18), or for those who are “incapable of commencing a proceeding in respect of the claim because of his or her physical, mental, or psychological condition.” Even still, there is an ‘ultimate limitation period,’ a hard limit, of 15 years to commence a claim from when the event first took place. 

What happens, though, when even 15 years feels unfair? What if you recognized there was an issue, but even that took some time, and then by the time you did you only learned much later that litigation was the best road to a solution? Is there any way to get around limitation periods because they don’t feel just?

A recent Superior Court case shows how that might be a tough road to navigate.

When Sewers Go Wrong

In Tyszko v. St. Catherines (City), 2023 ONSC 2892, Mr. Tyszko’s parents had owned the property in question in 2002 when the City installed storm sewers. When he visited the property more frequently in 2015 and 2016, he noticed that rain from the street was draining not into the sewers, but onto the property. When he gained title of the property in 2017, he filed an official complaint with the City, who found no issues with the sewers but never responded to him to advise of their findings. 

After not receiving a response from the City, Mr. Tyszko hired a lawyer in 2018, who sent several letters. Meanwhile, Mr. Tyszko was clearly noticing water damage on the property, and in 2019 had an estimate for repairs of just over $85,000. 

In 2019 Mr. Tyszko’s lawyer again wrote to the City, and was told in writing that an adjuster would follow-up. There was no follow-up. 

In 2021 Mr. Tyszko tried again through his lawyer to reach the City, who requested video evidence of the damage, which he provided. Yet in March, 2021, the City’s insurance adjuster denied his claim stating that it was outside of the two-year limitation period. 

Mr. Tyszko proceeded to bring a claim for summary judgment (believing that there was no issue that warranted a trial), and left it to the Court to decide whether his claim could proceed despite the two-year limitation period, or failing that the 15-year ultimate limitation period. 

The Court Holds Firm

The Court ruled that Mr. Tyszko’s claim was statute barred, both by the 2-year limitation period and the ultimate 15-year limitation period. 

The Court began by reviewing the calendar, under the caveat that “no action can be brought if 15 years have passed since the act or omission took place.” Given the changes to the Act that took place in 2004, the calendar began to run for Mr. Tyszko on January 1, 2004 (despite the work being completed in 2002), and extended through to January 1, 2019. Mr. Tyszko claimed that he was in hospital for several months in 2018, which given his incapacity may have extended through to April 15, 2019.

However, he did not commence his claim until July, 2021. Mr. Tyszko’s position was that this was not a single incident of negligence by the City, but an ongoing problem, since his property is impacted every single time it rained. The Court disagreed here too, stating that the City’s sewer work in 2002 was a “single alleged breach with allegedly continuing consequences,” but each storm does not itself represent a new act of negligence. 

Mr. Tyszko’s claim was further denied under the 2-year limitation period. In May, 2019 he knew that there had long been damage to the property, and he had already contacted a lawyer for support. Even though the lawyer had sent correspondence to the City, there was no reason as to not move ahead with a claim at that time. 

Further, the Court disagreed that the limitation period started running only when the insurance adjuster denied the claim in 2021. Instead, it reasoned that “The City was not offering any assistance to the plaintiff. The plaintiff was represented by a lawyer… The plaintiff has not explained why he chose to wait almost 2 years for a response from the City to his demands when his lawyer had already been retained to commence proceedings.“

Final Thoughts 

The case is a stark reminder of why limitation periods need to ALWAYS be top of mind, especially in construction and property issues. There was no question that the property was being damaged by the rainfall. The Plaintiff even had photo and video evidence of the damage, and it may well have been directly linked to the sewer work done in 2002.

However, the Plaintiff and his lawyer waited too long to act, and the mistake was a costly one. Lawyers need to be keenly aware of limitation periods and need to take action while the ‘clock is still running.’ That’s why we pay careful attention to dates on each file, set diligent calendar reminders, and ensure that you are ready to take action if necessary while you still have the chance. Contact our office today to set up a consultation on your matter so that we can help out before it’s too late.