In
Though subject to some exceptions, the statutory limitation period in
Basic Limitation Period
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
An exception to the standard two year limitation period is found in instances where there is a reoccurring breach of a contractual obligation such that it creates a 'rolling limitation period'. This common law exception was established by the
The court in
The common law rolling limitation period was revisited and clarified in Marvelous Mario's Inc. v.
The jurisprudence suggests that a rolling limitation period may apply in a breach-of-contract case in circumstances where the defendant has a recurring contractual obligation. The question is not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in another breach of contract beyond the original breach by failing to comply with an ongoing obligation. In cases where there have been multiple breaches of ongoing obligations, it is equitable to impose a rolling limitation period.3
Determining when a limitation period has begun and whether a dispute will be subject to rolling limitation period will ultimately depend on the facts.
Footnotes
1 Pickering
2 Marvelous Mario's Inc. v.
3 Ibid at para 35.
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