When does the limitation period start running regarding an incapable person who does not have a formal litigation guardian? Despite the language of the Limitations Act, 2002, a court found in Rekowski v. Renfrew (County), 2019 ONSC 2852 that the answer to this question is not clear.

In 2009, Kenneth was injured in a car accident, suffering a catastrophic brain injury. The driver of the other car sued Kenneth in 2011 and Kenneth cross-claimed against the driver. Kenneth was not represented by a litigation guardian. This litigation settled in 2014. Throughout the litigation, no one made any allegation regarding road conditions or sued the County in which the accident occurred.

In 2017, Kenneth (by his litigation guardian) commenced an action against the other driver and the County. Kenneth’s litigation guardian stated that Kenneth was incapable. The County brought a motion for, among other things, disclosure with respect to Kenneth’s capacity and whether he had an actual or de facto litigation guardian appointed at an earlier time.

The Limitations Act, 2002 holds that a limitation period does not run when a plaintiff is incapable of commencing a proceeding and is not represented by a litigation guardian. Justice MacLeod noted that, “read literally” the Limitations Act allows an indefinite delay in the litigation period. While there is a safeguard that a defendant can move for a litigation guardian to be appointed, the defendant would have to have some notice of a potential claim.

Justice MacLeod noted the case law holds that commencing an action in the name of a litigation guardian will start the limitation period running, even if there are irregularities in the appointment (e.g. failing to provide the required affidavit). However, simply engaging counsel or even pursuing accident benefits on behalf of the plaintiff will be insufficient to end the tolling of the limitation period. The litigation guardian viewed the case law as a complete answer to the defendant’s limitation defence. As such, she argued that there was no reason to grant the disclosure.

Justice MacLeod disagreed. While stating that the plaintiff might be successful (his Honour wryly noted in a footnote that the plaintiff’s counsel had ultimately been successful in a similar case), his Honour held he was not determining whether or not a limitation defence would succeed. Instead, the question was whether the evidence being sought was relevant unless there was no possibility of the defence succeeding. Justice MacLeod found that he could not say there was no possibility of a limitation defence succeeding; this was not a case where “the law is so clear.” In his Honour’s view, given the procedural nature of the case law and the fact that there was a dissenting judgment showed that the “last word may not be written on this question.” Additionally, if a litigation guardian was appointed for Kenneth (either formally or not) in the 2011 litigation that may have started the running of the litigation period.

This case touches on the broader and important question of when a limitation period starts running for an incapable person. As Justice MacLeod notes a literal reading of the Limitations Act, 2002 allows for an incapable person’s guardian or attorney to indefinitely toll a limitation period by not formally commencing a claim as litigation guardian. As his Honour observed, there may be further words on this question by other courts.