Solicitor's Accounts and the Ontario Limitations Act
The Limitations Act, R.S.O. 2002 has now been in force for a number of years. It has been commented that the changes to the limitations laws were designed to "rationalize and modernize a complex area of law" (J. Lee, “An Overview of the Ontario Limitations Act, 2002” (2004) 28 Advocates’ Q. 29 at 29). Notwithstanding this intent, the changes are still causing considerable difficulty for legal practitioners, and their clients.
Yesterday, the Court of Appeal released a decision, Guillemette v. Doucett, in which the provisions of the new Limitations Act were applied in circumstances where a client sought to assess a solicitor's account. The application was brought 33 months after the account was delivered and paid. The solicitor argued that the application for assessment was out of time.
The Court of Appeal stated that the Limitations Act "seeks to simplify and standardize the law of limitation periods in Ontario in part by fixing to general applicable limitation periods", being a basic two year limitation period, and an ultimate limitation period of 15 years.
The Court of Appeal found that the two-year limitation period applied to the assessment of a solicitor's account.
However, the Solicitors Act allows for an extension of time in which to seek an assessment "under special circumstances". The Court of Appeal applied s. 20 of the Limitations Act, which provides that "This Act does not affect the extension, suspension or other variation of a limitation period or other time limit by or under another Act”. Thus, while the two year limitation imposed by the Limitations Act applied, the “special circumstances" exception set out in the Solicitors Act was maintained.
Limitations acts are said to be "statutes of repose". However, it is apparent from this recent Court of Appeal decision that there is not necessarily repose for solicitors.
Thank you for reading. Have a great weekend.
Paul Trudelle
