Beyond the Three-Year Limit: Unraveling the Prescription Puzzle
In a previous publication, we discussed the possibility for a person who suffered bodily harm to claim damages from a negligent party.
The limitation period for claiming this type of damage is usually three (3) years from the fault or the knowledge of the harm, as provided for in section 2925 of the Civil Code of Quebec1.
Earlier this year, in the case of Barnard v. Norris2, the Superior Court had to rule on the computation of deadlines and the extinctive prescription period in the context of this type of action.
The Barnard v. Norris case
a) Facts
In this case, Timothy Barnard (hereinafter “Barnard”) alleges that he was assaulted on June 17, 2002, upon exiting a bus, by a group of three teenagers. Barnard claims to have received several blows to the face and kicks to the stomach.
This assault was later described as uncalled for by the Superior Court.
During the assault, Georges Berry (hereinafter “Berry”) was arrested and charged with assault. In September 2002, he was found guilty and sentenced to community service and to reimburse Barnard for his broken glasses.
However, Berry refused to denounce the two other teenagers involved in the assault, who had managed to escape at the time of the events.
Shortly after Berry’s guilty plea, Barnard filed a complaint with the Canadian Human Rights Commission (hereinafter, “Commission”) alleging that it was a discriminatory assault based on sexual orientation.
It was not until October 2005 that Barnard was informed that the Commission was closing the file due to insufficient evidence.
In July 2008, Barnard initiated a civil action against Berry and his mother for $2,723,000.
It was during an out-of-court examination that Berry then denounced his two accomplices at the time, William Norris (hereinafter “Norris”) and Ivan Zilic (hereinafter “Zilic”). Norris, Zilic, and their respective parents were therefore added as co-defendants in the civil case.
Berry died during the proceedings, and a discontinuance against his mother and the estate was filed with the Court.
The trial of this case took place in October 2023, 21 years after the assault in question. The judgment, however, is dated April 2024.
b) Limitation
Thus, the Superior Court was asked, in particular, to determine whether Barnard’s action was prescribed
The general rule provides that an action for damages for bodily injury is prescribed after three years3. The limitation period therefore expired in June 2005, unless there was a suspension or interruption of prescription.
First, the Court held that Barnard’s complaint to the Commission on October 19, 2002, suspended the prescription until October 31, 2005, in accordance with section 76 of the Charter of Human Rights and Freedoms4.
Next, the Court considered that the starting point of the extinctive prescription for the bodily harm suffered by Barnard was the moment he received his diagnosis, namely July 12, 2002.
Furthermore, even if the limitation period expired for Berry, the period did not begin to run against the other defendants, Norris and Zilic. Indeed, Barnard was unable to identify them before Berry’s out-of-court examination on November 17, 2009, and was therefore unable to act5.
Thus, the Court concluded that the action was not prescribed, the period beginning to run at the time when Barnard learned the identity of his assailants.
c) Liability
The Superior Court then analyzed the question of the liability of Zilic, Norris, and their respective parents.
To this effect, the Court concluded that Zilic was involved in the event in question. However, his parents cannot be held liable, having successfully rebutted the presumption of liability of the holder of parental authority6.
The judgment differs for Norris and his father who, having failed to respond to the legal proceedings, are held liable for the event in question. Indeed, the father, having presented no evidence at trial, did not discharge himself from the presumption of liability of the holder of parental authority7.
Thus, Zilic, Norris, and Norris’s father are jointly and severally liable for the damages.
d) Damages
At trial, Barnard claimed $877,125.00 for a 15% anatomophysiological deficit, loss of earnings, moral damages for loss of enjoyment of life, punitive damages, and reimbursement of his expert fees.
The Superior Court awarded a total sum of $80,000 to cover all non-pecuniary damages, a sum of $10,000 in punitive damages, and the reimbursement of expert fees of $7,125 as legal costs.
In addition to the amount awarded in damages, the Court awarded interest and additional compensation8 from November 2011, i.e., at the time Zilic, Norris, and Norris’s father were added to the legal proceedings.
Considering that the judgment was rendered in 2024, according to our calculations, the amount of interest and additional compensation exceeds $70,000.
Legislative advance
Before concluding, it is important to mention that Quebec, in recent years, but mainly in 2013 and 2022, adopted a new legislative provision, namely section 2926.1 of the Civil Code of Quebec9.
This provision allows the extinctive prescription period to be extended to ten (10) years when the bodily injury results from an act that could constitute a criminal offense. It also allows an action resulting from sexual violence, violence suffered during childhood, or violence suffered from a spouse or former spouse to be imprescriptible.
Conclusion
In conclusion, the limitation periods provided for in the Civil Code of Quebec are full of exceptions, and the computation of deadlines can be complex. Before declaring that you are no longer within the deadlines to initiate an action, it would be wise to speak to your lawyer.
Written with the collaboration of Léa-Catherine Brunet, law student.
1Civil Code of Quebec, RLRQ., CCQ-1991, s. 2925.
2Barnard c. Norris, 2024 QCCS 1309.
3C.C.Q., s. 2925.
4Charter of Human Rights and Freedoms, RLRQ., c. C-12, s. 76.
5C.C.Q., s. 2904.
6Id., s. 1459
7Id.
8Id., s. 1619.
9Id., s. 2926.1.