When Does The Limitation Period Start For A Negligent Construction Claim?

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Limitations-Negligence-Limitation Clauses-

The law of Limitations creates a difficult question for those involved in construction projects: when does the limitation period begin for a claim in negligence arising from a construction project? An Ontario judge recently held that the answer is: when the plaintiff knew or ought to have known of the particular defect that gave rise to the damage for which the plaintiff sues.

The problem with the limitation period is that the elements of the tort of negligence contradict the principles relating to limitations of action. The occurrence of damage is an essential element of the tort of negligence. So, the "cause of action" in negligence should only arise when the damage occurs. However, both the courts and the legislatures have said that it is unfair to expect a plaintiff to sue if the damage is unknown. The common law in Canada developed the principle that the limitation period for a claim in negligence only commences when the plaintiff knew or ought to have known of the cause of action. That principle is now contained in Ontario's Limitations Act, 2004.

The question is: what facts must the plaintiff know or ought to know for the limitation period to begin? Any damage arising from the negligent act or omission? Any defects arising from the negligent act or omission? The particular damage for which the plaintiff sues? Or the particular defect which gave rise to the particular damage for which the plaintiff sues?

These distinctions can make the head spin. Whether the same deficiency led to the same damage, whether the deficiency was latent or patent and whether the plaintiff knew or ought to have known any of this, will confuse even the most sophisticated persons engaged in construction projects. All the more reason to carefully monitor the course of construction and the condition of the constructed project, and to start any claim as soon as possible. This is particularly so since, under the Limitations Act, 2004, the Ontario limitation period has now been reduced to two years.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Heintzman, Arbitration Place | Attorney Advertising

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