Limitation Periods for Strata Claims

“Are you reelin’ in the years – Stowin’ away the time”

Reelin in the Years by Steely Dan

DOES THE RIGHT TO COMMENCE LEGAL ACTION EXPIRE?

The right to commence legal action eventually expires.

The date by which you must file your claim and commence your legal action is called a “limitation period”.

When you think that you may have a claim against another party, do not delay in seeking legal advice on your rights. You may lose the right to commence legal action if you wait too long.

HOW LONG IS THE LIMITATION PERIOD?

The Limitation Act provides various limitation periods that may apply depending on the circumstances. There is no single limitation period to rule them all.

The Limitation Act does, however, provide a basic limitation period that applies in most instances. The basic rule is that you have two years after the date on which the claim is discovered to file your claim and commence legal action.

WHEN DOES THE LIMITATION PERIOD START TO RUN?

The clock starts ticking on the limitation period when the claim is discovered. Discovering that you have a claim is not always straight forward. The date you discover your claim is the date when you know or ought reasonably to know all of the following:

• The injury, loss or damage has occurred.

• The injury, loss or damage was caused by or contributed to by an act or omission.

• The person whose act or omission caused or contributed to the injury, loss or damage.

• That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek remedy.

A claim is often discovered immediately after the event causing the injury, loss or damage. For example, when a Zamboni driver runs over your leg, breaking it in two places. At the moment of fracture, you know there is an injury, the injury was caused by an act, the person responsible, and that legal action is appropriate means to seek a remedy.

A claim can also be discovered years after the event causing the injury, loss or damage. For example, when you discover the mechanic who repaired your Zamboni years ago did not install the high-quality safety mechanism you purchased. At the moment of learning you did not get what you paid for, you know there is a loss, the loss was caused by an act, the person responsible for the act, and that legal action is appropriate means to seek a remedy.

It is important to consider that the Limitation Act says when someone "ought reasonably to know" about the claim. This means, that a court (or the Civil Resolution Tribunal) can determine that even if you did not know about the claim that a reasonable person would have known about it. So, a Strata cannot avoid a limitation period expiring by simply stating "the Strata did not know about it."

IS THERE A REQUIREMENT TO USE REASONABLE DILIGENCE TO DISCOVER THE CLAIM?

The date of discovery is not necessarily the date you actually discover your claim. It is the date you ought reasonably to know that you have a claim. This means you cannot extend the limitation period by refusing to discover your claim. For example, if you are involved in a hit and run, and are left only with the vehicle’s license plate number, you cannot extend your limitation period by refusing to take steps to discover the driver’s identify.

You must exercise reasonable diligence to discover there has been a loss, the loss was caused by some act, and who is responsible for the act giving rise to the loss. If the claim could have been discovered earlier by exercising reasonable diligence, the limitation period will start to run on the date you should have discovered the claim.

IS THERE AN ULTIMATE LIMITATION PERIOD?

The Limitation Act provides an ultimate limitation period, though this too has its exceptions. The ultimate limitation period provides that you must not file your claim and commence legal action more than 15 years after the date of the act or omission giving rise to the claim. You may have just discovered you have a claim, but you will be out of time to file the claim and commence legal action if the event giving rise to the claim took place more than 15 years ago.

DO NOT DELAY IN SEEKING LEGAL ADVICE ON THE APPLICABLE LIMITATION PERIOD

The Limitation Act provides an array of limitation periods that may apply depending on the circumstances. When you discover that you may have a claim against another party, do not delay in seeking legal advice on your rights and the applicable limitation period.

A Strata that waits too long could lose the right to commence legal action. Once you know the applicable limitation period, make sure you record the date by which you must file the claim and if you are going to be using legal services make sure you contact them long before the limitation date. Robust and resilient Strata communities take immediate action and do not allow limitation periods to elapse.