Beware of the chain-link limitation expiry

A lawyer phoned to tell me about a limitations matter.  He said that if the case was time-barred, the time expired long before the client retained him.  Then he told me there was a prior lawyer.  I told him to report himself to the Ontario Lawyers’ Professional Insurer, LawPro, just in case.  (Ouch!) Continue reading

Procrastinators, don’t let work-life balance kill you

Canadian Lawyer‘s launch of its monthly column, The Accidental Mentor.  The inaugural piece, “Procrastinators, don’t let work-life balance kill you“, illustrates how convenient devices to make your life better can, in fact, make you fearful of work.

While you’re there, check out the other columns before you get back to work.  Indeed, if you’re a follower of the Mayan Calendar, you’ve until next December 21st to get everything done!

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Janvier 2012 témoigne Canadian Lawyer lancer sa chronique mensuelle, le Mentor accidentelle. La pièce inaugurale, « Procrastinators, don’t let work-life balance kill you », illustre la façon dont les outils pour rendre votre vie meilleure peut, en fait, de vous faire peur de travailler.

Pendant que vous y êtes, consultez les autres articles avant de vous remettre au travail. En effet, si vous suivez le calendrier Maya, vous avez jusqu’au prochaine 21 décembre au tout faire!

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‘Appropriate Means’ ~ Enhancement of Discoverability in Ontario Limitations Law

Limitations Act, 2002, came into force, do parties and their lawyers avail themselves of the phrase “appropriate means” in s. 5, to toll the operation limitation periods?  The time has come for all lawyers, junior and senior, to be aware of these words as an enhancement of the discoverability principle.

Lawyers called to the Bar of Ontario prior to 2004 were happy, in some respects, to be rid of the arcane language of the old Limitations Act, R.S.O. 1990, c. L.15.  For over a decade, the battlegrounds were staged in the judicial interpretations of “accrued” causes of action, “discoverability” principles, and “special circumstances.” It was so hard to keep track of exemptions, and exemptions from exemptions, that the Law of Limitations in Ontario became quite the litigator’s minefield, especially in medical malpractice and other personal injury cases.  The Limitations Act, 2002, oddly not in force until 2004, was meant to eliminate legalese and to close loopholes.  It was supposed to be easier to observe limitation periods and harder for parties to avoid them. Still, as set out in my post on the subject, there remain plenty of exemptions.  Section 5 also codified the discoverabilty principle, whereby the time to start a legal proceeding tolled until a party knew or reasonably could have known that they had suffered harm for which there was a legal remedy.

This article describes the evolution of “discoverability” from the former regime, through what the Court of Appeal calls an enhancement of the principle, by what I call the “appropriate means” test.  Senior lawyers still operating under the pre-2004 understanding should understand the significance of this change.  Moreover, new lawyers should read the pre-2004 case law with great caution, because the prior case law was appreciably quicker to impute expert knowledge on lay persons.  Knowing that a law suit is an “appropriate means” to remedy a claim is not the same as suspecting one can sue, or wanting to sue. Continue reading

The Best Ontario Limitation Period Chart

Limitation periods come and go.

That, in five words, is the problem.  For the general practice lawyer and litigator, limitation periods are the bane of our existence.  In the days when we relied on paper “tickler” systems, compliance often depended on the diligence of the office clerk assigned to keep track of them.  Now with electronic calendars, iPhone or Blackberry alerts, it is pretty much up to each lawyer to ensure limitation periods are brought to your notice in a timely way.  You can have an assistant or clerk set it up, but the negligence suit will name you or your law firm. Continue reading

Litigation guardians: the limitations minefield

Any time you act for a minor or a mentally incapable person in litigation, or in other legal matters, you will be appointing a litigation guardian.  Next comes the tricky part, from a limitations perspective.

Acting for litigation guardians is fraught with peril.  Suddenly, the incapacitated personal injury victim or minor, usually incapable of appreciating their legal rights, may have limitation period commencing against them.  To start your appreciation of this issue, read my 2007 series of articles : civmar07webcivjun07web

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Walking through the New Errors and Omissions Minefield in Medical Malpractice Litigation

Click on the link to read my article, “Walking through the New Errors and Omissions Minefield in Medical Malpractice Litigation,” The Advocates’ Quarterly, Vol. 22, 1999 22AdvocQ217.  Good to see the principles from the old 1-year limitation period remain relevant.

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