BILL 28

Limitation of Actions Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

PRELIMINARY MATTERS

Definitions and interpretation

1(1) The following definitions apply in this Act.

“claim” means a claim to remedy the injury, loss or damage that occurred as a result of an act or omission. (réclamation)

“claimant” means a person who has a claim, whether or not the claim has been brought. (réclamant)

“defendant” means a person against whom a claimant has a claim, whether or not the claim has been brought. (défendeur)

1(2) For the purposes of this Act, a claim is brought

(a)  when a proceeding in respect of the claim is commenced, or

(b)  if the claim is added to an existing proceeding by a new or an amended pleading that is not an originating process, when that pleading is filed.

1(3) Any reference in this Act to a limitation period established by this Act does not include a reference to the period described in section 22.

Application

2(1) Subject to subsection (2), this Act applies to any claim brought after the commencement of this Act, including a claim that is added to a proceeding commenced before the commencement of this Act.

2(2) This Act does not apply to any claim to which the Real Property Limitations Act applies.

This Act binds the Crown

3 This Act binds the Crown.

Conflict

4(1) If there is a conflict between this Act and any other public Act of New Brunswick, that other Act prevails.

4(2) If there is a conflict between a limitation period established by this Act and one established by a private Act of New Brunswick, the limitation period that expires the latest prevails.

PART 2

GENERAL LIMITATION PERIODS

General limitation periods

5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of

(a)  two years from the day on which the claim is discovered, and

(b)  fifteen years from the day on which the act or omission on which the claim is based occurred.

5(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known

(a)  that the injury, loss or damage had occurred,

(b)  that the injury, loss or damage was caused by or contributed to by an act or omission, and

(c)  that the act or omission was that of the defendant.

Continuous act or omission

6 If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periods in section 5 to be a separate act or omission on each day it continues.

PART 3

SPECIAL LIMITATION PERIODS

Application of Part 2

7 Unless this Part provides otherwise, Part 2 does not apply to the claims referred to in this Part.

Judgments

8 No claim based on a judgment for the payment of money shall be brought after 15 years from the day of the judgment.

Recovery of personal property

9(1) No claim to recover possession of personal property that has been converted shall be brought

(a)  if the defendant is a purchaser of the personal property for value acting in good faith, after 2 years from the day the purchaser purchased the personal property, and

(b)  in any other case, after the earlier of

(i) two years from the day on which the claimant first knew or ought reasonably to have known the identity of the person who has possession of the personal property, and

(ii) fifteen years from the day on which a conversion of the personal property first occurred.

9(2) On the expiry of a limitation period under this section, the claimant’s title to the personal property is extinguished.

Conversion

10(1) Subject to subsection (2), Part 2 applies to a claim for damages for conversion.

10(2) If there have been 2 or more conversions of the same personal property, a claim for damages for conversion shall not be brought against a defendant if, under section 9, a claim to recover the possession of the personal property from that defendant cannot be brought, or could not be brought if that defendant were still in possession of the property.

Demand loans

11 No claim that is based on a failure to repay a demand loan shall be brought after the earlier of

(a)  two years from the day default in repayment occurs after the demand for repayment is made, and

(b)  fifteen years from the day on which the lender is first entitled to make a demand for repayment of the loan.

Secured debt

12(1) Subject to subsection (2), Part 2 applies to a claim for payment of a debt secured on real or personal property.

12(2) No claim to recover the principal of a debt secured on real or personal property shall be brought after 15 years from the day the security is taken.

12(3) A payment made in relation to a debt is a part payment for the purposes of section 20, and is presumed, in the absence of evidence to the contrary, to be a payment of both principal and interest.

12(4) If a creditor takes possession of the property on which the debt is secured, the debtor shall not bring a claim to redeem the property after 15 years from the day the creditor takes possession of the property.

Statutory liens

13 If a lien or charge is created by an Act in relation to an amount due under that Act, no claim shall be brought to recover the amount due after 15 years from the day on which the lien or charge arises.

Contribution

14 No claim for contribution in respect of a payment that a claimant has made, or a liability that a claimant has incurred by virtue of a settlement or judgment, shall be brought against a person after the expiry of the earlier of

(a)  the period of 2 years that begins on the day the claimant first knew or ought reasonably to have known that the person was liable to make the contribution, and

(b)  whichever of the following periods expires last:

(i) fifteen years from the day the act or omission that gave rise to the payment, settlement or judgment occurred, and

(ii) five years from the day of the payment, settlement or judgment.

PART 4

OPERATION OF LIMITATION PERIODS

Knowledge

15(1) If, in respect of a claim brought by a principal, an agent has actual knowledge of the matters referred to in subsection 5(2), subparagraph 9(1)(b)(i), paragraph 14(a), subparagraph 16(b)(i) or section 22 and has a duty to communicate that knowledge to the principal, the principal shall be deemed to have knowledge of the matters on the earlier of

(a)  the day on which the agent first knew those matters, and

(b)  the day on which the principal first knew or ought reasonably to have known those matters.

15(2) In respect of a claim brought by a claimant who is, in relation to the property to which the claim relates, a successor in right, title or interest to another person, the claimant shall be deemed to have knowledge of the matters referred to in subsection 5(2) or subparagraph 9(1)(b)(i) or 16(b)(i) on the earlier of

(a)  the day on which the predecessor first knew or ought reasonably to have known those matters, if that day occurred before the predecessor transferred the property, and

(b)  the day on which the claimant first knew or ought reasonably to have known those matters.

Wilful concealment

16 If a defendant wilfully conceals from a claimant the existence of a claim, the following rules apply:

(a)  the defendant cannot rely on the expiry of a limitation period referred to in paragraph 5(1)(b), subparagraph 9(1)(b)(ii) or paragraph 11(b) or 14(b) as a defence to the claim, and

(b)  in the case of a claim referred to in section 8, subsection 12(2) or (4) or section 13, the claim shall not be brought after the later of

(i) two years from the day the claimant first knows or ought reasonably to know that the claim exists, and

(ii) the period described in section 8, subsection 12(2) or (4) or section 13, as the case may be.

Minors

17 The operation of any limitation period established by this Act is suspended while the claimant is a minor.

Incapacity

18(1) The operation of the limitation period in paragraph 5(1)(a), subparagraph 9(1)(b)(i) or paragraph 11(a) or 14(a) is suspended during any period in which the claimant is incapable of bringing the claim because of his or her physical, mental or psychological condition.

18(2) If the limitation period has less than one year to run when the suspension ends, the period is extended to the day that is one year after the day on which the suspension ends.

Acknowledgment

19(1) If, before the expiry of the relevant limitation period established by this Act, a defendant gives an acknowledgment of the right, title, liability or obligation to which the claim relates, the operation of the limitation period begins again at the time of the acknowledgment.

19(2) An acknowledgment

(a)  must be in writing, and

(b)  must be made by the defendant or the defendant’s agent to the claimant, the claimant’s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada).

19(3) An admission or statement made in correspondence relating to the resolution of a claim is not an acknowledgment for the purposes of this section if

(a)  the correspondence indicates that the admission or statement is made without prejudice, or

(b)  the correspondence reserves the defendant’s right to rely on the expiry of a limitation period as a defence to the claim.

Part payments

20(1) If a defendant makes a part payment of a liquidated or unliquidated monetary obligation before the expiry of the relevant limitation period established by this Act, the operation of the limitation period begins again at the time of the part payment.

20(2) A part payment must be made by the defendant or the defendant’s agent to the claimant, the claimant’s agent or an official receiver or trustee acting under the Bankruptcy and Insolvency Act (Canada).

20(3) Subsection (1) does not apply if

(a)  the payment is made as full payment, settlement or discharge of the monetary obligation of the defendant,

(b)  the payment is made without prejudice or on the basis that the defendant does not accept liability for any amount beyond the amount paid, or

(c)  the defendant reserves the right to rely on the expiry of a limitation period as a defence to the claim.

PART 5

CLAIMS BROUGHT AFTER EXPIRY OF LIMITATION PERIOD

Claims added to proceedings

21 Despite the expiry of the relevant limitation period established by this Act, a claim may be added, through a new or an amended pleading, to a proceeding previously commenced if the added claim is related to the conduct, transaction or events described in the original pleadings and the conditions set out in one of the following paragraphs are satisfied:

(a)  the added claim is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either party sues or is sued;

(b)  the added claim adds or substitutes a defendant or changes the capacity in which a defendant is sued, but the defendant has received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the defendant will not be prejudiced in defending against the added claim on the merits;

(c)  the added claim adds or substitutes a claimant or changes the capacity in which a claimant sues, but the defendant has received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the defendant will not be prejudiced in defending against the added claim on the merits, and the addition of the claim is necessary or desirable to ensure the effective determination or enforcement of the claims asserted or intended to be asserted in the original pleadings.

Delay caused by defendant

22 If the relevant limitation period established by this Act has expired, but the actions taken or assurances given by the defendant or the defendant’s agent in relation to the resolution of the claim before the expiry of the limitation period caused the claimant to reasonably believe that the claim would be resolved by agreement and therefore to delay bringing the claim, the claimant may bring the claim within 6 months after the day on which the claimant first knows or ought reasonably to know that the belief was unfounded.

PART 6

GENERAL

Non-judicial remedies

23(1) In this section, “non-judicial remedy” means a remedy that a person is entitled, by law or by contract, to exercise in respect of a claim without court proceedings.

23(2) If a claimant is prevented from bringing a claim as a result of the expiry of a limitation period established by this Act, the claimant is not entitled to enforce against the defendant any non-judicial remedy that the claimant would otherwise be entitled to enforce in relation to the claim.

Conflict of laws

24(1) Subject to subsection (2), this Act applies to any claim brought in New Brunswick, despite the fact that, in accordance with conflict of laws rules, the claim is to be adjudicated pursuant to the substantive law of another jurisdiction.

24(2) If the limitations law of that other jurisdiction would prevent the claim from being brought in that jurisdiction, the claim shall not be brought in New Brunswick.

Rules of equity

25 Nothing in this Act derogates from any rule of equity under which a court may refuse to grant relief to a claimant in respect of a claim.

Agreements

26 Nothing in this Act precludes any person from entering into an agreement that has the effect of extending or shortening a limitation period established by this Act.

PART 7

TRANSITION

Transition

27(1) The following definitions apply in this section.

“effective date” means the day on which this Act comes into force. (date d’entrée en vigueur)

“former limitation period”, with respect to a claim, means the limitation period that applied to the claim before the effective date. (ancien délai de prescription)

“new limitation period”, with respect to a claim, means the limitation period established by this Act that applies to the claim. (nouveau délai de prescription)

27(2) This section applies to claims that are based on acts or omissions

(a)  that took place before the effective date, and

(b)  with respect to which no claim has been brought before the effective date.

27(3) During the first 2 years after the effective date, a claim may be brought after the new limitation period has expired if the former limitation period has not expired.

27(4) Nothing in this Act permits a claim to be brought if the former limitation period has expired before the effective date.

PART 8

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Arbitration Act

28 Section 52 of the Arbitration Act, chapter A-10.1 of the Acts of New Brunswick, 1992, is amended

(a)  in subsection (1) by striking out “as if the arbitration were an action and a claim made in the arbitration were a cause of action” and substituting “as if the arbitration were a court proceeding”;

(b)  in subsection (2) by striking out “within which an action may be brought on a cause of action that was a claim in the arbitration” and substituting “within which a court proceeding may be brought in respect of a claim that was presented in the arbitration”.

Business Corporations Act

29 Subsection 83(6) of the Business Corporations Act, chapter B-9.1 of the Acts of New Brunswick, 1981, is repealed and the following is substituted:

83(6) No action shall be brought under subsection (5) after 2 years from the day on which the plaintiff first knew or ought reasonably to have known that the conduct giving rise to the action took place.

Defamation Act

30(1) Section 12 of the Defamation Act, chapter D-5 of the Revised Statutes, 1973, is amended by striking out “Sections 13 to 18” and substituting “Sections 15 to 18”.

30(2) Section 13 of the Act is repealed.

30(3) Section 14 of the Act is repealed.

30(4) Section 18 of the Act is amended

(a)  in subsection (1) by striking out “sections 13, 14 and 17” and substituting “section 17”;

(b)  in subsection (3) by striking out “sections 13, 14 and 17” and substituting “section 17”.

Electricity Act

31 Section 31 of the Electricity Act, chapter E-4.6 of the Acts of New Brunswick, 2003, is amended

(a)  in subsection (1) by striking out “notwithstanding the Limitation of Actions Act or any other Act” and substituting “notwithstanding any other Act”;

(b)  in subsection (2) by striking out “notwithstanding the Limitation of Actions Act or any other Act” and substituting “notwithstanding any other Act”.

Executors and Trustees Act

32(1) The heading “LIMITATION” preceding section 17 of the Executors and Trustees Act, chapter E-13 of the Revised Statutes, 1973, is repealed.

32(2) Section 17 of the Act is repealed.

Fatal Accidents Act

33(1) Subsection 2(2) of the Fatal Accidents Act, chapter F-7 of the Revised Statutes, 1973, is amended by striking out “Subject to subsection (5)” and substituting “Subject to subsections (5) and 8(3.1)”.

33(2) Subsection 5(4) of the Act is repealed and the following is substituted:

5(4) No application shall be made under subsection (1) by a person barred from bringing an action under this Act because of the expiration of a period set out in paragraph 8(4)(a) or (b), but where such an application is made not earlier than 3 months before the expiration of that period, the judge may, if he or she thinks it just to do so, extend for a period not exceeding one month the time within which an action may be brought as provided in subsection 8(4).

33(3) Section 8 of the Act is amended

(a)  in subsection (3) by striking out “lapse of time or”;

(b)  by adding after subsection (3) the following:

8(3.1) If the deceased, at the time of his or her death, could not have brought an action against the tortfeasor by reason of lapse of time, a person who, if not for this subsection, would be entitled to bring an action under this Act is barred from doing so.

(c)  by repealing subsection (4) and substituting the following:

8(4) Except where it is expressly declared in another Act that it operates notwithstanding this Act and subject to subsection 5(4), an action, including an action to which subsection 2(5) or (6) applies, shall not be brought under this Act after the earlier of

(a)  two years from the day on which the person bringing the action first knew or ought reasonably to have known that the wrongful act, neglect or default of the tortfeasor caused the death or contributed to the cause of death of the deceased, and

(b)  five years from the day of the death of the deceased.

Limitation of Actions Act

34(1) The title of the Limitation of Actions Act, chapter L-8 of the Revised Statutes, 1973, is repealed and the following is substituted:

Real Property Limitations Act

34(2) Section 1 of the Act is amended

(a)  by repealing the definition “beyond seas”;

(b)  by repealing the definitions “mortgage”, “mortgagor” and “mortgagee”;

(c)  in the definition “proceedings” by striking out “entry, taking of possession, distress and sale proceedings under an order of a court or under a power of sale contained in a mortgage or conferred by statute;” and substituting “entry and taking of possession.”;

(d)  by repealing the definition “rent”;

(e)  by repealing the definition “rent charge”.

34(3) Parts I and II of the Act are repealed.

34(4) Subsection 33(2) of the Act is repealed.

34(5) Parts IV, V and VI of the Act are repealed.

34(6) Section 55 of the Act is repealed and the following is substituted:

Definition of “trustee”

55 In this Part, “trustee” includes an executor and a joint trustee.

34(7) Section 56 of the Act is repealed.

34(8) Section 57 of the Act is repealed.

34(9) Section 58 of the Act is amended

(a)  by repealing subsection (2);

(b)  by repealing subsection (3).

34(10) Section 60 of the Act is amended by striking out “any land, rent charge, or money charged on land, the right and title of such person to the land or rent charge or the recovery of the money out of the land shall be extinguished” and substituting “any land, the right and title of such person to the land shall be extinguished”.

34(11) Section 61 of the Act is repealed.

34(12) Section 62 of the Act is amended by striking out “Parts II, III and IV” and substituting “Part III”.

34(13) Subsection 63(1) of the Act is amended by striking out “Parts II, III and IV” and substituting “Part III”.

34(14) The heading “APPLICATION OF ACT” preceding section 64 of the Act is repealed.

34(15) Section 64 of the Act is repealed.

34(16) The heading “ACQUIESCENCE” preceding section 65 of the Act is repealed.

34(17) Section 65 of the Act is repealed.

Mental Health Act

35 Subsection 66(2) of the Mental Health Act, chapter M-10 of the Revised Statutes, 1973, is amended by striking out “All actions and prosecutions” and substituting “All prosecutions”.

Midwifery Act

36(1) The heading “Limitation of actions” preceding section 96 of the Midwifery Act, chapter M-11.5 of the Acts of New Brunswick, 2008, is repealed.

36(2) Section 96 of the Act is repealed.

Probate Court Act

37 Subsection 68(2) of the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, is repealed.

Regional Health Authorities Act

38(1) The heading “Limitations” preceding section 61 of the Regional Health Authorities Act, chapter R-5.05 of the Acts of New Brunswick, 2002, is repealed.

38(2) Section 61 of the Act is repealed.

Survival of Actions Act

39 Section 9 of the Survival of Actions Act, chapter S-18 of the Revised Statutes, 1973, is amended

(a)  in subsection (1) by striking out “Notwithstanding the Limitation of Actions Act or any other Act” and substituting “Notwithstanding any Act”;

(b)  by repealing subsection (2) and substituting the following:

9(2) Subject to subsection (2.1), proceedings on a cause of action that survives under section 2 shall not be brought after 2 years from,

(a)  if the cause of action is discovered by the person in whom the cause of action was vested before death, the day of the death of the person, and

(b)  if the cause of action is discovered after the death of the person in whom the cause of action was vested before death, the day the cause of action is discovered by the person bringing the action.

(c)  by adding after subsection (2) the following:

9(2.1) Proceedings on a cause of action that survives under section 2 shall not be brought after 5 years from the day of the death of the person in whom the cause of action was vested before death.

(d)  by repealing subsection (3) and substituting the following:

9(3) Subject to subsection (3.1), proceedings on a cause of action that survives under section 3 or 4 shall not be brought after 2 years from the later of

(a)  the day of the death of the person against whom the cause of action subsisted or was deemed to have been subsisting before death, and

(b)  the day the cause of action is discovered by the person who has the cause of action.

(e)  by adding after subsection (3) the following:

9(3.1) Proceedings on a cause of action that survives under section 3 or 4 shall not be brought after 5 years from the day of the death of the person against whom the cause of action subsisted or was deemed to have been subsisting before death.

9(3.2) For the purposes of subsections (2) and (3), a cause of action is discovered by a person on the day on which that person first knew or ought reasonably to have known that the cause of action existed.

Commencement

40 This Act comes into force on a day to be fixed by proclamation.