EXPLANATORY NOTE
This Explanatory Note was written as a reader’s aid to Bill 213 and does not form part of the law. Bill 213 has been enacted as Chapter 24 of the Statutes of Ontario, 2002.
The Bill amends the Solicitors Act, enacts the Limitations Act, 2002 and amends the Public Accountancy Act. For convenience, the enactment and amendments are set out in separate Schedules. The commencement provisions for each Schedule are set out at or near the end of the Schedule.
SCHEDULE A
AMENDMENTS TO SOLICITORS ACT (CONTINGENCY FEE AGREEMENTS)
The Schedule amends the Solicitors Act to regulate contingency fee agreements. Contingency fee agreements may not be considered to reduce an award of costs and a client may collect full payment for an award of costs, even if it exceeds the amount payable under an agreement, if the award is to be used to pay the client’s solicitor and the solicitor and client have entered into a contingency fee agreement. In this case, the client is only required to pay the amount of the costs to the solicitor and not the amount payable under the contingency fee agreement.
Contingency fee agreements are prohibited in criminal, quasi-criminal and family matters. The amount of a contingency fee can be no more than a maximum percentage of the award as prescribed by regulation, if a maximum percentage is prescribed. Except with approval of the Superior Court of Justice, the maximum amount of a contingency fee cannot exceed the maximum percentage prescribed by regulation. A contingency fee agreement may include an award as to costs, if approved by the court. The amendments allow the Lieutenant Governor in Council to make regulations governing contingency fees.
SCHEDULE B
LIMITATIONS ACT, 2002
The Act deals comprehensively with limitation periods (except those affecting the specialized area of real property).
A basic limitation period of two years is established (section 4), running from the day a claim is discovered (section 5). A claim is discovered when the person with the claim is, or ought to be, aware of the material facts. This basic limitation period replaces the general limitation periods found in the existing Limitations Act and most of the numerous special limitation periods found in individual statutes (see section 19 and the Schedule for a list of the special limitation periods that will be preserved).
The basic limitation period does not run while the person with the claim is unable to pursue it because of being an unrepresented minor (section 6) or incapable person (section 7). Likewise it does not run during the life of an agreement to have an independent third party resolve or assist in resolving the claim (section 11).
When a person with a claim is represented by a litigation guardian in relation to the claim, the discovery rules in section 5 apply to the litigation guardian (section 8). When a potential plaintiff is under disability, a potential defendant may end the suspension or postponement of the running of the limitation period under section 6 or 7 by making an application or motion to have a litigation guardian appointed for the potential plaintiff and meeting other conditions (section 9).
Special rules are established for claims based on assault and sexual assault (section 10). The basic limitation period does not run while the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition. A person who has a claim based on assault and who, at the time of the assault, had an intimate relationship with or was dependent on one of the parties to the assault, is presumed (unless the contrary is proved) to have been incapable of commencing the proceeding earlier than it was in fact commenced. A person with a claim based on sexual assault is presumed (unless the contrary is proved) to have been incapable of commencing the proceeding earlier than it was commenced.
Detailed rules are provided for determining whether claims of a financial nature have been acknowledged, which starts the limitation period running afresh (section 13).
The Act provides that a person against whom another person may have a claim may serve a notice of possible claim on that other person. The service of such a notice may amount to discovery and thus start the limitation period running (section 14).
The Act also establishes an ultimate limitation period of 15 years that runs from the day the act or omission on which the claim is based takes place (section 15). No proceeding may be commenced when the ultimate limitation period has run, irrespective of when the claim was discovered. The ultimate limitation period does not run during the incapacity of the person with the claim, during the person’s minority or during any time in which the person against whom the claim is made wilfully concealed essential facts or misled the person with the claim. An ultimate limitation period of two years is established for claims against good faith purchasers for conversion of goods; nothing stops the running of this limitation period.
The Act lists a variety of proceedings in respect of which there is no limitation period (section 16): proceedings for declarations; proceedings to enforce court orders and other orders that are enforceable in the same way as court orders; proceedings under the Family Law Act relating to support; proceedings to enforce arbitration awards; proceedings by persons in possession of collateral to redeem or realize on it; proceedings arising from sexual assault in certain circumstances; proceedings to recover fines, taxes and penalties owing to the Crown; proceedings relating to claims by the Crown (or by a delivery agent under social welfare legislation) in various circumstances; proceedings to recover money owing in respect of certain student loans, awards and grants. There is also no limitation period in respect of undiscovered environmental claims (section 17). Sections 16 and 17 prevail over section 15.
The Act contains a number of general provisions dealing with technical matters (sections 18 to 24). The most significant of these is section 19, which provides that limitation periods set out in other statutes are of no effect unless they are preserved by being listed in the Schedule. These special limitation periods, like the new limitation periods established by the Act, do not run during the incapacity or minority of the person with the claim or while the claim is submitted to an independent third party for resolution.
Detailed rules are provided for the treatment of claims that arose before the coming into force of the new Act (section 24).
The Act repeals and amends numerous provisions of other statutes that relate to limitation periods (sections 25 to 49). The portion of the existing Limitations Act that deals with real property is preserved and retitled Real Property Limitations Act (section 26).
SCHEDULE C
AMENDMENTS TO
PUBLIC ACCOUNTANCY ACT
The Schedule makes a number of amendments to the Public Accountancy Act.
Currently The Public Accountants Council for the Province of Ontario consists of 15 members, 12 of whom are appointed by the council of The Institute of Chartered Accountants of Ontario and three of whom are elected by licensed public accountants. This is replaced by a provision under which the composition of The Public Accountants Council is established by regulations made by the Lieutenant Governor in Council.
The Lieutenant Governor in Council may prescribe, by regulation, additional functions for The Public Accountants Council.
The qualifications for being licensed currently include membership in The Institute of Chartered Accountants of Ontario. This is replaced by a reference to membership in any one of three organizations: The Certified General Accountants Association of Ontario, The Institute of Chartered Accountants of Ontario and The Society of Management Accountants of Ontario.
The Schedule adds to the grounds on which a public accountant’s licence may be revoked after an inquiry held by The Public Accountants Council. The licence may be revoked if the inquiry finds that the licence holder meets prescribed conditions. These conditions are to be prescribed by the Lieutenant Governor in Council after consultation with The Public Accountants Council.
The Public Accountants Council may exercise its regulation-making powers by adopting by reference any code, standard, guideline or procedure.
The Attorney General may require The Public Accountants Council to make, amend or revoke a regulation, and if it does not do so within 60 days, the Lieutenant Governor in Council may make a regulation that carries out the intent of the Attorney General’s requirement.