Conventional wisdom in Ontario has long been that limitation periods do not run for minors while they are under the age of 18 and they are not represented by a litigation guardian. However, the recent Court of Appeal decision of Duschesne v. St-Denis, 2012 ONCA 699 raises some questions about this proposition.
Section 4 of the Limitations Act, 2002sets out Ontario's basic limitation period of 2 years from the date on which a claim was discovered. Section 5 modifies the basic rule to state that a claim is deemed to have been discovered when the claim became "discoverable" by the person with the claim.
With respect to minors, section 6 states that the limitation period established by section 4 does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian in respect of that claim.
In Duschesne, the plaintiff injured himself while playing catch with a football around the pool in June of 2002 with his friends Garneau and Bedard. He turned 18 in September, 2004. In 2006, he issued a claim against the St. Denis defendants. It was not until June, 2009 that the plaintiff attempted to add his friends, Garneau and Bedard, as defendants.
The transitional provisions located in section 24 provide that if the old limitation period would not have expired by January 1, 2004 in respect of a claim based on events prior to that date, and the claim was discovered before that date, then the old limitation period applies. Relying on the expanded definition of "discovered" in section 5, the Court found that the claim was discovered prior to January 1, 2004, and therefore the old, longer limitation period applies.
Presumably, this would apply in Estates matters too. Where a minor's claim against an Estate could have been discoverable prior to January 1, 2004, the expanded definition of "discovered" can apply (albeit somewhat counterintuitively) to extend the limitation period to the period in effect before the new Act came into force.
The decision in Duschesne should give Estate litigators some pause when considering whether or not a minor's claim has expired. It proves the old adage that kids (and their lawyers) should know their limits.