The Code provides for three situations by which the limitation period, both acquisitive and extinctive, may be modified: waiver, interruption and suspension.
Waiver of the limitation period
It is provided in the Code that it is possible to waive a prescription, strictly when its period has entirely elapsed (article 2883 C.C.Q.). As a result, the limitation period begins to run for the same period of time (Article 2888 of the Code).
As provided for in section 2885 of the Code, the waiver must be expressed or implied. A waiver is tacit when it is possible to suppose, by the actions of a person, the abandonment of the right acquired by the prescription. For example, a debtor, having a debt to his creditor, makes a partial payment following the expiry of the limitation period. By doing so, he tacitly renounces the extinctive prescription from which he benefited. In addition, if it is a real estate right that has been acquired, the waiver must be published at the registry office.
The limitation period, being of public order, cannot be derogated from. Section 2884 of the Code provides that it is prohibited to change limitation periods. It is therefore necessary to respect those provided for by law.
Interruption of prescription
The Code further provides that it is also possible to interrupt the limitation period in two ways: naturally or civilly. Following its interruption, the period begins to elapse for the same period (article 2903 C.C.Q.)
The extinctive prescription may be interrupted naturally when the person having a right decides to exercise it, although it is prescribed. For example, the right of way. This can be created in different ways. For example, if there is an agreement between parties, then it will be an actual servitude. On the other hand, in the absence of such an agreement, or simply by geographical location, the land could be landlocked. As a result, one way to interrupt the prescription naturally is to start using one’s right again. The elapsed period is therefore nullified, and the limitation period is renewed. Thus, ten years of non-use of this right must elapse in order for the right to be prescribed by extinctive prescription (article 2891 C.C.Q.)
When it comes to an acquisitive prescription, there is a natural interruption “when the possessor is deprived, for more than one year, of the enjoyment of the property” (article 2890 C.C.Q.).
In addition, the limitation period may also be interrupted civilly:
- The filing of a legal claim, within the limitation period, interrupts the limitation period. This interruption continues “until the judgment has become res judicata or, where applicable, until the transaction between the parties”. On the other hand, in the event of dismissal, withdrawal or expiry of the proceeding, the interruption does not take place (article 2892, 2894, 2896 of the Code). Moreover, in the event of rejection, if there has not been a decision on the merits, and therefore on the matter that is the subject of the file, and the limitation period has expired or will expire within the next three months, the applicant may benefit from an additional period of three months (Article 2895 C.C.Q.).
- The application “made by a creditor with a view to participating in a distribution in competition with other creditors” (article 2893 C.C.Q.).
- There is also interruption when he has ” recognition of a right” or when there is a ” waiver of the benefit of the elapsed time” (article 2898 C.C.Q.).
- When there is a legal claim or ” any other initiating act”, such as the recognition of a right, against a debtor or against the surety, the interruption produces its effects for each (article 2899 C.C.Q.).
- In a solidary or indivisible obligation, when there is an interruption for one of the creditors or one of the debtors, it will therefore have interruption for the others as well (article 2900 C.C.Q.).
In the presence of a divisible obligation, the Code provides that the interruption of the limitation period for a creditor or joint debtor does not apply to other creditors or debtors (article 2901 C.C.Q.). Since they are joint, in order for the interruption to apply to all, the limitation period must be interrupted in respect of each.
When, for a divisible obligation, there is an interruption for a co-heir of a creditor or a joint and several debtor, it will not produce effects for the other creditors or debtors, but rather only for the share of the co-heir in question (article 2902 C.C.Q.).
Suspension of the prescription
The limitation period may be suspended according to the cases provided for in the Code, without erasing the time already elapsed. So, once the event causing the suspension ceases to exist, the prescription begins to flow again from the moment it has stopped.
The Code provides for several situations where the limitation period may be suspended. Indeed, it does not run against:
- Persons unable to act : the statute of limitations does not run against persons who cannot act, either by themselves or by representation. On the other hand, as mentioned in a decision rendered by the Quebec Court of Appeal, while, in exceptional situations, ignorance of the facts may be considered an impossibility to act, ignorance cannot be considered (article 2904 C.C.Q.)
- Unborn child (Article 2905 para. 1 C.C.Q.)
- Minor or adult unable to exercise the remedies provided for by law against the persons responsible for their custody. The limitation period will also be suspended for the remedies that the latter may have against anyone with regard to compensation for bodily injury when this is a consequence of an act likely to be a criminal offence (Article 2905 para. 2 C.C.Q.)
- Heir with respect to the claims he has against the estate (article 2907 C.C.Q.)
- Spouses or partners in a civil union during their life together: it does not run between these persons (article 2906 C.C.Q.
Finally, an application for authorization to bring a class action also suspends the statute of limitations in favour of all members of the class. On the other hand, this suspension ends if the application is rejected, if the judgment authorizing the application is annulled or if the judgment lapses (article 2908 C.C.Q.). However, when a member requests to be excluded or becomes excluded by judgment as provided for in the Code in article 2908 C.C.Q., he will no longer benefit from the suspension. Finally, in the event of a judgment, the timer for the limitation period will not start again until the decision can no longer be appealed.
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