The Court of Appeal for Ontario has upheld the province’s new two-year lawsuit limitation period in a case where a lawyer inadvertently missed the deadline for filing a claim.

In the case, Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, the plaintiff’s lawyer drafted a claim within the two-year period and directed his assistant to file it. The assistant went on vacation just as the claim deadline approached, and didn’t issue the claim before leaving, not knowing that the limitation period had been reduced from six years to two years.

When the lawyer learned of the error, he issued the claim right away. However, the defendant sought to determine whether the action was statute barred, as it was filed after the two-year deadline.

The motion judge concluded that, while the action was barred by the two-year limitation period, he had discretion to extend the time to commence an action, as special circumstances existed in this case.

But that decision has now been reversed on appeal. “The decision of the motion judge, which followed a line of cases in the Superior Court where extensions were granted that did not involve any amendment of or addition to an existing action, was an error of law,” it ruled, adding that judges only have the discretion to amend or add a claim or party to an existing action, but not to allow an action to be commenced after the expiry of a limitation period.