Some causes of action are "continuing" in
nature. Historically, torts such as trespass or nuisance have
in some instances fallen into this category. More recently,
Canadian courts have recognized that breaches of contract can also
be continuing in nature, particularly in cases where the agreement
calls for periodic payments that are dishonored. In essence,
Canadian Courts have generally held that the failure to honor each
of the scheduled periodic payments gives rise to a discrete,
independent cause of action with its own limitation period.
The practical result of this approach has been that even if a
claim for breach of contract was initiated beyond the limitation
period as measured from the first missed payment, a plaintiff could
nevertheless recover all of the amounts that were owed in the
portion of the period (corresponding to the applicable limitation
period) immediately prior to the commencement of the action.
For instance, if a contract called for periodic payments was
breached in 2010 but the breach continues to 2014 and the
applicable limitation period is two years, and a claim is
ultimately initiated in 2014, the claim is normally regarded as not
being totally barred but rather recovery is limited to the
payments owed in the two year period (per the limitation period)
before the claim was filed in 2014. A recent decision of the
Alberta Court of Appeal, however, rejects this approach to
"continuing" contractual breaches: Halter v.
Standard Life Assurance Company of Canada, 2014 ABCA
In Halter, the plaintiff's long-term disability insurer
terminated coverage at the end of 2001. The plaintiff did not
commence his claim until March of 2006. The applicable
limitation period was two years under Alberta's Limitations Act (the Court of Appeal
ruled that the limitation period under the Insurance Act
did not apply). The plaintiff claimed that because his
disability was ongoing, his insurer's obligation to make
monthly periodic disability payments was also ongoing.
Accordingly, the plaintiff asserted that he was entitled to all of
the monthly disability payments which he was owed between March of
2004 and March of 2006.
The Alberta Court of Appeal, departing from a well-established
corpus of jurisprudence, ruled that the plaintiff's entire
claim was time-barred. The Court of Appeal held that the
limitation "clock" began to run as soon as the insurer
"no longer accepted that [the plaintiff] had a continuing
disability" and indicated it would no longer make monthly
payments (at para. 15). Thus, the Court rejected the
plaintiff's argument that he could "hoard his claim
indefinitely" (at para. 14). As soon as the insurer
communicated its views, the plaintiff "had to decide whether
he wanted to have a court overrule the insurer's decision and
he had to take steps to get the court involved" as his claim
had "now become concrete" (at paras. 15 and 18).
In so ruling, the Court distinguished earlier cases which
involved limitation periods which began to run from the
crystallization of a "cause of action" (such as
Ontario's former Limitations Act) or from the date
when payments became "payable". Alberta's Limitation Act, in contrast, refers
to an "injury" as the event triggering the commencement
of a limitation period.
The decision in Halter has wide-reaching implications. As
Ontario's current ,em>Limitations Act also uses the word
"injury" (along with the words "damage" and
"loss") as a relevant event which triggers the running of
a limitation period, it will no longer be safe to assume that a
breach of an obligation to make periodic payments under a contract
gives rise to a series of causes of action which in effect extends
the limitation period and permits partial recovery of the total
amount owing. Rather, an innocent party to a contract will be
well-advised to ensure that a claim is commenced within the
limitation period as measured from the date that the first of a
series of payments was missed in situations where the
contract-breaker evinces an intention not to make future
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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