Limitation periods are a public interest consideration in the legal system which seeks to weigh a person's right to sue with a person's right not to have potential legal claims held over them indefinitely. The duration of a limitation period is a balancing choice for legislators that varies across jurisdictions. Various forms of limitation periods have been established to cover timeframes from when a plaintiff experiences a loss or from a specified date when certain acts or omissions underlying a claim took place. These various forms of limitation periods are further attempts to balance the perceived unfairness between plaintiffs and defendants.
Statutes of limitations are generally enacted to limit the time period in which a person must bring a lawsuit. These periods are generally set to commence upon some date which the claimant knew, or ought to have known, that they suffered an injury or loss. This is commonly referred to as the discoverability principle. Discoverability means that a claimant may not know they have an injury or loss for which they may bring a lawsuit until years after the initial conduct occurred. In the context of product liability, this could result in a product being defectively or negligently manufactured and not resulting in a loss until years and years later when it ultimately fails. Manufacturers and developers of products would therefore be susceptible to lawsuits indefinitely until a defective product caused a loss or injury. This problem is not protected by standard limitation periods.
In the United States, statutes of repose were enacted to limit the ability to bring a claim from a specified date, rather than from when the claimant discovers their injury or loss as prescribed under statutes of limitations. Under a statue of repose, a defendant would be free from liability once a certain period of time has elapsed after a triggering event, notwithstanding the claimant may not have experienced any loss or injury up to that point. Statues of repose are enacted on a State level and vary in the type of claim covered and the length of repose period. With respect to statutes of repose on product claims, States have determined the length of the repose period as well as the triggering event on which the period commences. For instance, States that have statues of repose for products have held the period may start from the date of sale, date of first use, date of delivery, date of manufacture, date of expiration of useful life, or some combination of these events.
The General Aviation Revitalization Act of 1994 (GARA) is an example of a federal statute of repose in the United States. GARA provides a uniform time limitation for bringing civil claims against certain aircraft manufacturers or aircraft component manufacturers. Claims against such entities can only be commenced within 18 years from the date of delivery of the aircraft or date of completion of a new replacement or additional component. This limits product liability claims in the aviation industry and provides manufacturers peace of mind from potential lawsuits from allegedly defective or failed components that were manufactured more than 18 years prior. Certain exemptions may limit the protections of GARA if manufacturers knowingly misrepresent, conceal or withhold information about the component responsible for the alleged harm.
Canada does not have such statues of repose or an equivalent to GARA. Canadian legislatures have instead codified "ultimate limitation periods" in an effort to limit the prejudice of indefinite liability. Ultimate limitation periods, like statutes of repose, do not require an element of discoverability of a loss or harm. Instead, ultimate limitation periods are based on the date the claim arose. The Alberta Limitations Act provides a 10-year ultimate limitation period with specific descriptions of when this absolute period starts to run for various causes of action. The Alberta Court of Appeal dismissed an argument that the cause of action for negligence requires injury to give rise to a claim. The Court found it difficult to import such a requirement of injury to commence the limitation period which would deprive the ultimate limitation period of its purpose.1 In the case of a breach of duty, in which most product liability cases are based, the ultimate limitation period in Alberta commences "when the conduct, act or omission occurs". Ontario's Limitations Act has similar wording that a claim shall not be commenced "after the 15th anniversary of the day on which the act or omission on which the claim is based took place". Certain exceptions are applied to these ultimate limitation periods depending on the type of claim being sought. Given the relatively novel implementation of ultimate limitation periods in Canada, there are limited reported decisions analyzing how they will be applied.
The recent Ontario Superior Court of Justice decision in Hennebury v. Makita Canada Inc., 2025 ONSC 3850 (Hennebury) applied the ultimate limitation period to a product liability claim. In Hennebury, the plaintiff sued for personal injuries sustained on June 4, 2019 from the use of an allegedly defective power router tool distributed by the defendant. During the discovery process, the defendant determined that the router tool in question was manufactured by Makita Corporation of America in March 2001. The plaintiff commenced his action on March 13, 2020, 19 years after the allegedly defective product was manufactured.
The Court in Hennebury determined the plaintiff's claim rested entirely on an alleged defect in the manufacture of the router tool that the defendant was alleged to be aware of. Given the claim was in relation to a defect in the manufacturing, the 15-year ultimate limitation period applied. The Court did not accept the plaintiff's argument that the defendant's actionable conduct was a continuing cause of action that reset the limitation period upon each continuing act. The defendant was found to have done nothing to constitute a continuing act or omission since the manufacture of the router tool. Therefore, the plaintiff's claim was summarily dismissed as it was barred by the ultimate limitation period.
While ultimate limitation periods are more general in their application than statutes of repose, Hennebury provides an example of how such limitation periods can be used in product liability cases where the defective product in question was manufactured or designed many years before an injury occurs.
The approach to claiming immunity as a result of an ultimate limitation period will depend on how the claim is drafted, the factual matrix of the case, and the particulars of the causes of action plead. For instance, a claim for negligent design or manufacture of a product may have an earlier ultimate limitation date than a claim for failing to warn of a defect. Therefore, the success of striking or dismissing such claims as being statutorily barred will need to consider the precise allegations and facts contained in the claim.
About Mackrell International - Canada - Scott Venturo LLP is a full service business law firm in Calgary, AB and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.
