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The Limitations Act

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S.M. 2021, c. 44

Bill 51, 3rd Session, 42nd Legislature

The Limitations Act

Explanatory Note

This note was written as a reader's aid to the Bill and is not part of the law.

This Bill replaces The Limitation of Actions Act with a new limitations regime, The Limitations Act.

A limitation period is the time period within which a person with a civil claim must start a court proceeding to sue someone else.

The new Act establishes the default regime for limitation periods, which means that it applies unless another law contains a specific limitation period.

Basic limitation period

The current Limitation of Actions Act has several limitation periods ranging from 2 to 10 years, based on the type of legal action. The new Act replaces those periods with a single limitation period of two years, which begins to run from the day the claim is discovered. A claim is discovered when the person with the claim knew, or ought to have known, the material facts.

Ultimate limitation period

Even if a claim has not been discovered within 15 years of the event that gave rise to the claim, an action started after the 15th anniversary of that event will be statute barred. This 15-year period is called the "ultimate limitation period".

No limitation period

The new Act lists a variety of proceedings for which there is no limitation period, such as proceedings arising from a sexual assault.

Suspension of limitation periods

A limitation period is suspended during the time a claimant is a child or under a disability, or if the person who is to defend the claim has concealed it from the claimant or wilfully misled them.

Financial claims

Detailed rules are provided for determining whether claims of a financial nature have been acknowledged by the debtor, in which case the limitation period for the claim begins to run again.

Transition

The new Act applies to all proceedings begun after it comes into force.

Consequential amendments

Amendments are made to limitations provisions in several other Acts.

(Assented to May 20, 2021)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTRODUCTORY PROVISIONS

Overview

1

This Act sets out limitation periods for civil claims. A person with a claim must start a court proceeding within the limitation period or lose their right to do so. For most claims, the Act

(a) establishes a basic limitation period of two years, which begins to run on the day the claim is discovered;

(b) establishes a maximum limitation period of 15 years (beyond which the basic limitation period cannot extend), which begins to run on the day the event giving rise to the claim takes place;

(c) does not apply if another Act contains a specific limitation period that applies to the claim or otherwise conflicts with this Act.

Definitions

2

The following definitions apply in this Act.

"basic limitation period" means the limitation period that applies to a claim under section 6. (« délai de prescription de base »)

"claim" means a civil claim to remedy an injury, loss or damage that occurred as a result of an act or omission. (« réclamation »)

"claimant" means a person who has a claim, whether or not a proceeding has been commenced. (« requérant »)

"defendant" means a person against whom a claimant has a claim, whether or not a proceeding has been commenced. (« défendeur »)

"person under a disability" means an adult person who is incapable of commencing a proceeding in relation to a claim because of a physical, mental or psychological condition. (« personne ayant une incapacité »)

"security agreement" means an agreement that creates or provides for an interest in collateral in order to secure payment or performance of an obligation. (« contrat de sûreté »)

"ultimate limitation period" means the limitation period that applies to a claim under section 10. (« délai de prescription maximal »)

Application of this Act

3

This Act applies to a claim pursued in a court proceeding, but does not apply to

(a) an appeal;

(b) a proceeding for judicial review;

(c) a proceeding for a declaration if no consequential relief is sought; or

(d) a proceeding to enforce an order of a Manitoba court, or any other order, including a certificate evidencing an amount owing, that may be enforced in the same way as an order of a Manitoba court.

Relationship to other Acts

4(1)

This Act does not apply to a claim

(a) that is subject to a limitation provision in another Act, except in the circumstance mentioned in section 13 and subsection 14(1) (suspension of limitation periods); or

(b) if another enactment states that no limitation period applies to the claim.

Conflict with another Act

4(2)

If a provision of this Act is inconsistent or in conflict with a provision of another Act, the provision of the other Act prevails.

Act binds the Crown

5

This Act binds the Crown.

BASIC LIMITATION PERIOD

Basic limitation period — 2 years from discovery

6

Unless this Act provides otherwise, a proceeding respecting a claim must not be commenced more than two years after the day the claim is discovered.

When is a claim discovered?

7

A claim is discovered under this Act on the day the claimant first knew or ought to have known all of the following:

(a) that injury, loss or damage has occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of a person against whom the claim is or may be made;

(d) that, given the nature and circumstances of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

Date of injury, loss or damage — specific cases

8

For the purpose of clause 7(a), the day an injury, loss or damage occurs is as follows:

(a) in the case of a continuous act or omission, the day the act or omission ceases;

(b) in the case of a series of acts or omissions respecting the same obligation, the day the last act or omission in the series occurs;

(c) in the case of a claim to realize on collateral under a security agreement, the day the default first occurs;

(d) in the case of a claim to redeem collateral under a security agreement, the day the creditor takes possession of the collateral;

(e) in the case of a default in performing a demand obligation, the day the default occurs, once a demand for performance is made;

(f) in the case of a claim for contribution or indemnity by one alleged wrongdoer against another, the day the liability of the claimant, in relation to the matter for which contribution or indemnity is sought, is confirmed by a court judgment, arbitration award or settlement agreement.

Burden of proof

9

The claimant has the burden of proving that a proceeding has been commenced within the basic limitation period.

ULTIMATE LIMITATION PERIOD

Ultimate limitation period — 15 years

10(1)

Even if the basic limitation period for a claim has not expired, a proceeding must not be commenced more than 15 years after the day the act or omission on which the claim is based took place.

Exception for Aboriginal claims — 30 years

10(2)

As an exception to subsection (1), a proceeding respecting

(a) existing Aboriginal and treaty rights that are recognized and affirmed in the Constitution Act, 1982; or

(b) an equitable claim by an Aboriginal people against the Crown;

must not be commenced more than 30 years after the day the act or omission on which the claim is based took place.

Exception re purchasers for value — 2 years

10(3)

As a further exception to subsection (1), a claim arising out of the conversion or wrongful detention of personal property must not be commenced — where the defendant is a purchaser for value in good faith — more than two years after the day the defendant purchased the property. If the claimant has not recovered possession of the property on the expiry of the two-year period, the claimant's title to the property is extinguished.

Date of act or omission — specific cases

11(1)

For the purpose of section 10, an act or omission on which a claim is based takes place as follows:

(a) in the case of a continuous act or omission, the day the act or omission ceases;

(b) in the case of a series of acts or omission respecting the same obligation, the day the last act or omission in the series occurs;

(c) in the case of a claim to realize on collateral under a security agreement, the day the default first occurs;

(d) in the case of a claim to redeem collateral under a security agreement, the day the creditor takes possession of the collateral;

(e) in the case of a default in performing a demand obligation, the day the default occurs, once a demand for performance is made;

(f) in the case of a claim for contribution or indemnity by one alleged wrongdoer against another, the day the claimant, in relation to the matter for which contribution or indemnity is sought,

(i) is served with a claim or with a notice that commences an arbitration, or

(ii) incurs a liability through a settlement agreement;

(g) in the case of a claim arising out of the conversion or wrongful detention of personal property, the day the property was first converted or wrongfully detained by any person.

Contribution and indemnity rule

11(2)

Clause (1)(f) applies whether the right to contribution and indemnity arises in relation to a tort or otherwise.

Burden of proof

12

The defendant has the burden of proving that a proceeding has not been commenced within the ultimate limitation period.

SUSPENSION OF LIMITATION PERIODS

Minors

13

A limitation period established under this or any other enactment does not run during the time the claimant is a minor, subject to section 15 (notice to proceed).

Persons under a disability

14(1)

A limitation period established under this or any other enactment does not run during any time the claimant is a person under a disability, subject to section 15 (notice to proceed).

Presumption of no disability

14(2)

At all times, a person is presumed to be capable of commencing a proceeding in relation to a claim unless the contrary is proved.

Six months' extension

14(3)

If the running of a limitation period is suspended under this section and the limitation period has less than six months to run when the suspension ends, the limitation period is extended to include the day that is six months after the day the suspension ends.

Notice to proceed — definition

15(1)

In this section, "potential defendant" means a person against whom a minor or person under a disability may have a claim but against whom a proceeding has not been commenced.

Notice to proceed re minor or person under a disability

15(2)

If the running of a limitation period is suspended under section 13 (minor) or section 14 (person under a disability), a potential defendant may end the running of the suspension by giving a notice to proceed in accordance with this section.

To whom notice is given

15(3)

A notice to proceed must be given as follows:

(a) if the claimant is a minor, to the minor's parent or guardian;

(b) if the claimant is a person under a disability, to a committee appointed for the person under The Mental Health Act or a substitute decision maker appointed for the person under The Vulnerable Persons Living with a Mental Disability Act, if the committee or substitute decision maker has the power to act in relation to the claim.

Notice to Public Guardian and Trustee

15(4)

A notice to proceed must also be given to the Public Guardian and Trustee.

Requirements for notice

15(5)

A notice to proceed must meet the following requirements:

1.

It must name the minor or person under a disability and the potential defendant.

2.

It must be in writing and signed by the potential defendant and by their lawyer.

3.

It must include a clear and concise statement of the facts on which the claim may arise, with enough information as is necessary to enable the person given the notice to investigate whether the minor or person under a disability has a claim.

4.

It must include a warning that, because of the giving of the notice, the limitation period begins to run on the date the notice is given.

How notice is given

15(6)

A notice to proceed must be given personally or be mailed or delivered to the person using a mail or delivery service that provides the person giving the notice with an acknowledgment of receipt.

Notice benefits only the potential defendant

15(7)

A notice to proceed is effective only for the benefit of the potential defendant giving the notice and only in relation to a claim arising out of the facts stated in it.

No admission of liability

15(8)

A notice to proceed is not an admission of liability on the part of the potential defendant and is not confirmation of any of the facts stated in it.

No application to certain claims

15(9)

This section does not apply to a claim that a minor or a person under a disability may have against their parent, guardian, committee, substitute decision maker or the Public Guardian and Trustee.

Role of Public Guardian and Trustee re notice to proceed

16

After receiving a notice to proceed under section 15, if the Public Guardian and Trustee believes that any other person who has been given the notice is failing to take reasonable steps to protect the interests of the minor or person under a disability, or is otherwise acting to prejudice them, the Public Guardian and Trustee

(a) must investigate the facts stated in the notice to proceed; and

(b) may commence a proceeding for the benefit of the minor or person under a disability.

Wilful concealment, etc.

17

The ultimate limitation period and the limitation period in section 19 do not run during any time that a defendant

(a) wilfully conceals from the claimant the fact that an injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission, or that the act or omission was that of the defendant; or

(b) wilfully misleads the claimant as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

NO LIMITATION PERIOD

Claims with no limitation period

18(1)

No limitation period applies to the following claims:

(a) a claim relating to an assault of a sexual nature;

(b) a claim relating to an assault if, at the time of the assault, the claimant

(i) had an intimate relationship with the person alleged to have committed the assault, or

(ii) was financially, emotionally, physically or otherwise dependent on the person alleged to have committed the assault;

(c) a claim to recover possession of land, except as provided in section 19;

(d) a claim by a debtor in possession of collateral that is personal property to redeem it;

(e) a claim by a creditor in possession of collateral that is personal property to realize on it;

(f) a claim to recover money owing to the Crown respecting taxes, fines or penalties, or interest on any of them;

(g) a claim brought by the Crown relating to

(i) the administration of social, health, educational or economic programs, or

(ii) the provision of direct or indirect support to members of the public in connection with social, health, educational or economic policy.

Sexual assault, etc.

18(2)

Clauses (1)(a) and (b) apply to a claim respecting an act that occurred before or after the coming into force of this section and regardless of the expiry of any previous limitation period that applied.

Revival of right to claim re sexual assault, etc.

18(3)

Clauses (1)(a) and (b) operate to revive a claimant's right to commence a proceeding if a proceeding brought by the claimant before this Act came into force was dismissed for the sole reason that a limitation period that had previously applied had expired.

Limitation period in Trustee Act applies

18(4)

Clauses (1)(a) and (b) are subject to subsection 53(2) of The Trustee Act (two-year limit on action against personal representative).

Definition of "assault"

18(5)

In this section, "assault" includes battery or other trespass to the person.

RULES FOR SPECIFIC CIRCUMSTANCES

Recovery of Land

Definitions

19(1)

The following definitions apply in this section.

"land" means land subject to The Registry Act, other than Crown lands. (« bien-fonds »)

"predecessor", in relation to a claimant or a defendant, means a person from whom or through whom the claimant or defendant has obtained possession of land or derives the right of possession. (« prédécesseur »)

"present interest" means an estate or interest on which a future estate or interest is expectant. (« intérêt actuel »)

Purpose

19(2)

The purpose of this section is to preserve the right to acquire an interest in land based on adverse possession.

Limitation on right to recovery

19(3)

A proceeding respecting a claim to recover possession of land must not be commenced after the defendant and any of the defendant's predecessors have dispossessed the claimant and any of the claimant's predecessors for a continuous period of 15 years.

Land subject to present interest

19(4)

If a period of dispossession begins while land is subject to a present interest and continues after the present interest terminates, a claim to recover possession of the land must not be commenced after the later of

(a) the end of the 15-year period; and

(b) five years after the present interest terminates.

Lease for fixed term

19(5)

If a period of dispossession begins during a fixed-term lease, a claim by the landlord to recover possession of the land must not be commenced after the later of

(a) the end of the 15-year period; and

(b) five years after the fixed term ends.

Dispossession by a tenant

19(6)

For the purpose of this section, if rent is payable under a lease, a period of dispossession of a landlord by a tenant begins when the tenant stops paying rent.

Expiry of limitation terminates title

19(7)

On the expiry of a limitation period under this section, the claimant's right or title to the land is extinguished.

Basic limitation does not apply

19(8)

A claim to recover possession of land is not subject to the basic limitation period.

Acknowledgment of Liability

Acknowledgment of liability extends limitation

20(1)

If, before the expiry of the relevant limitation period that applies to a claim under this Act, a defendant acknowledges the right, title, liability or obligation to which the claim relates, the operation of the limitation period begins to run afresh from the time of the acknowledgment.

Requirements for acknowledgment

20(2)

For the purpose of subsection (1), an acknowledgment must meet the following requirements:

1.

It must be made to the claimant, the claimant's agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada).

2.

It must be in writing and signed by the defendant making it or the defendant's agent, unless the acknowledgment is of a kind described in subsection (3) or rule 2 or 3 of subsection (6).

3.

It must be made before the limitation period that applies to the claim expires.

Partial payment of debt

20(3)

In the case of a claim for payment of a debt, part payment of the debt by the defendant or the defendant's agent has the same effect as an acknowledgment under subsection (1).

Payment of debt — promise to pay not required

20(4)

Subsection (1) applies to an acknowledgment of liability respecting a claim for payment of a debt even though the defendant making the acknowledgment refuses or does not promise to pay the debt or the balance still owing.

Claim for interest

20(5)

An acknowledgment of liability respecting a claim for interest is also an acknowledgment of liability respecting a claim for

(a) the outstanding principal, if any; and

(b) any interest that becomes due after the acknowledgment is made.

Security agreements and collateral

20(6)

The following rules apply to an acknowledgement made in relation to a security agreement:

1.

An acknowledgment of liability respecting a claim to realize on or redeem collateral under a security agreement (or to recover money in relation to the collateral), if made by a person in possession of the collateral, is an acknowledgment of liability respecting the claim by any other person who later comes into possession of the collateral.

2.

A debtor's payment or performance of an obligation under a security agreement is an acknowledgment by the debtor of liability respecting a claim by the creditor to realize on the collateral under the agreement.

3.

A creditor's acceptance of a debtor's payment or performance of an obligation under a security agreement is an acknowledgment by the creditor of liability respecting a claim by the debtor to redeem the collateral under the agreement.

Trustee

20(7)

An acknowledgment of liability by a trustee is an acknowledgment by any other person who is or who later becomes a trustee of the same trust.

Personal property

20(8)

An acknowledgment of liability respecting a claim to recover or enforce an equitable interest in personal property, if made by a person in possession of the property, is an acknowledgment by any other person who later comes into possession of the property.

Successors, Principals and Agents

Claim of a successor

21(1)

When a proceeding is commenced by a person claiming through a predecessor in right, title or interest, the claimant is deemed to have known of the matters referred to in clauses 7(a) to (d) (discovery of claim) on the earlier of the following:

(a) the day the predecessor first knew or ought to have known of those matters;

(b) the day the claimant first knew or ought to have known of them.

Claim of a principal

21(2)

When a proceeding is commenced by a principal, if the principal's agent had a duty to communicate knowledge of the matters referred to in clauses 7(a) to (d) (discovery of claim) to the principal, the principal is deemed to have known of them on the earlier of the following:

(a) the day the agent first knew or ought to have known of those matters;

(b) the day the principal first knew or ought to have known of them.

Amending Pleadings

Amending pleadings

22

Despite the expiry of a limitation period after a proceeding is commenced, a judge may allow the pleadings to be amended to add a new claim or to add or substitute a party, but only if

(a) the claim added by the amendment, or the claim by or against the new party, arises out of the same transaction or occurrence as the original claim; and

(b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment that cannot be compensated for by costs or an adjournment.

Miscellaneous

Definition of "non-judicial remedy"

23(1)

In this section, "non-judicial remedy" means a remedy that a person is entitled, by law or by contract, to exercise respecting a claim without court proceedings.

Non-judicial remedy limited

23(2)

A limitation period under this Act that applies to a court proceeding in relation to a claim also applies to any non-judicial remedy that a claimant is entitled to exercise against the defendant in relation to the claim.

Agreement to extend limitation

24(1)

A limitation period may be extended — but not shortened — in writing, after this Act comes into force.

Exception re ultimate limitation period

24(2)

Despite subsection (1), the ultimate limitation period may not be extended by agreement.

Limitation during stay of proceedings re bankruptcy, etc.

25

A limitation period does not run during any time a stay of proceedings is in effect under the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or the Farm Debt Mediation Act (Canada).

Rules of equity re acquiescence and undue delay not affected

26

Nothing in this Act precludes a court from granting a defendant immunity from liability under the equitable doctrines of acquiescence or laches.

Conflict of laws

27

For the purpose of applying the rules regarding conflict of laws, the limitations law of Manitoba or any other jurisdiction is substantive law.

TRANSITIONAL

Transitional — definition of "former Act"

28

In sections 29 to 31, "former Act" means The Limitation of Actions Act.

Proceeding commenced under former Act

29

Despite its repeal, the former Act continues to apply to a proceeding that was commenced under that Act.

Expiry of former limitation

30

No proceeding shall be commenced under this Act respecting a claim if the limitation period that applied under the former Act expired before the coming into force of this Act.

Claims to which this section applies

31(1)

Subject to section 30, this section applies to claims based on acts or omissions that occurred before the coming into force of this Act and in respect of which no proceeding was commenced under the former Act.

Exception

31(2)

This section does not apply to claims referred to in clause 18(1)(a) or (b) (sexual assault or assault in an intimate or dependent relationship).

Claim discovered under former Act

31(3)

In the case of a claim discovered before the coming into force of this Act, a proceeding may be commenced under this Act if it is commenced before the earlier of

(a) two years after the coming into force of this Act; and

(b) the day the limitation period under the former Act expires or would expire.

Claim discovered under this Act

31(4)

In the case of a claim discovered after the coming into force of this Act, this Act applies as if the act or omission on which the claim is based occurred on the day this Act came into force.

No former limitation period

31(5)

If there was no limitation period respecting a claim under the former Act but this Act establishes a limitation period,

(a) in the case of a claim discovered before the coming into force of this Act, there is no limitation period; and

(b) in the case of a claim discovered after the coming into force of this Act, this Act applies as if the act or omission took place on the day this Act comes into force.

CONSEQUENTIAL AMENDMENTS

C.C.S.M. c. C100 amended

32

Section 52 of The Chiropractic Act is repealed.

C.C.S.M. c. D30 amended

33

Section 44 of The Dental Association Act is repealed.

C.C.S.M. c. D34 amended

34

Section 64 of The Dental Hygienists Act is repealed.

C.C.S.M. c. F15 amended

35

Subsection 35(1) of The Family Farm Protection Act is amended by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

C.C.S.M. c. F50 amended

36

Subsection 7(4) of The Fatal Accidents Act is amended by striking out "Except where it is expressly declared in another Act that it operates notwithstanding this Act, an action" and substituting "An action".

C.C.S.M. c. J10 amended

37(1)

The Judgments Act is amended by this section.

37(2)

Subsection 8(1) is amended by striking out ", not prohibited by clause 2(1)(l) of The Limitation of Actions Act,".

37(3)

Section 11 is repealed.

C.C.S.M. c. J39 amended

38

Section 6 of The Justice for Victims of Child Pornography Act is amended

(a) by replacing the section heading with "Limitations Act"; and

(b) in the section, by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

C.C.S.M. c. L125 amended

39

Section 62 of The Licensed Practical Nurses Act is repealed.

C.C.S.M. c. M100 amended

40

Section 59 of The Medical Laboratory Technologists Act is repealed.

C.C.S.M. c. N80 amended

41

Section 20 of The Naturopathic Act is repealed.

C.C.S.M. c. O5 amended

42

Section 61 of The Occupational Therapists Act is repealed.

C.C.S.M. c. O55 amended

43

Subsections 6(1) and (2) of The Opioid Damages and Health Care Costs Recovery Act are amended by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

C.C.S.M. c. P60 amended

44

Section 93 of The Pharmaceutical Act is repealed.

C.C.S.M. c. P65 amended

45

Section 61 of The Physiotherapists Act is repealed.

C.C.S.M. c. P93 amended

46

Section 59 of The Podiatrists Act is repealed.

C.C.S.M. c. R30 amended

47

Subsection 106(1) of The Real Property Act is amended by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

C.C.S.M. c. R39 amended

48

Section 61 of The Registered Dietitians Act is repealed.

C.C.S.M. c. R45 amended

49

Section 62 of The Registered Psychiatric Nurses Act is repealed.

C.C.S.M. c. R117 amended

50

Section 175 of The Regulated Health Professions Act is repealed.

C.C.S.M. c. T160 amended

51(1)

The Trustee Act is amended by this section.

51(2)

Subsection 41(7) is amended

(a) in the section heading, by striking out "Limitation of Actions Act" and substituting "Limitations Act"; and

(b) in the section, by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

51(3)

Subsection 41(8) is amended by striking out "The Limitation of Actions Act" and substituting "The Limitations Act".

C.C.S.M. c. V30 amended

52

Section 54 of The Veterinary Medical Act and the centred heading before it are repealed.

REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE

Repeal

53

The Limitation of Actions Act, R.S.M. 1987, c. L150, is repealed.

C.C.S.M. reference

54

This Act may be referred to as chapter L150 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

55

This Act comes into force on a day to be fixed by proclamation.