“Prescription” doesn’t only refer to that paper from your doctor with instructions for your pharmacist scrawled on it!
In legal terms, prescription is something that can cause you to gain or lose a right just by the passage of time. To avoid losing a right, it is therefore very important to act before it is too late.
In this article, Éducaloi explains prescription, and especially how rights can be lost through the passage of time.
What is prescription?
Prescription is a way to gain or lose a right through the passage of time. The period of time varies according to the situation.
Let’s say that the fence separating Marie’s property from her neighbour’s is located on the wrong side of the real property line. This means Marie’s property has expanded by a few centimetres. This situation has gone on a long time, no one has complained and Marie has been faithfully cutting the grass on her neighbour’s lot as if it were her own. Through prescription, Marie could be recognized as owner of the extra centimetres. See the question “How do you gain a right through the passage of time?
On the other hand, if Karim wanted to sue Hassen, who owes him $5,000, he cannot wait too long, because Hassen could claim that time has run out through prescription. See the question, “What rights can be lost through the passage of time?”
How do you gain rights through the passage of time?
You can gain the right to be recognized as owner of a thing if you have had it in your possession for a certain amount of time.
To be recognized owner of an immovable, it usually takes 10 years. For a “moveable” (jewellery, books, a painting, furniture, appliances, tools, vehicles, etc.), it usually takes three years. But there are exceptions as regard to delays.
Be careful! To be considered as the owner, you must show the following:
- You made use of the thing as if you were the owner.
- You were in possession of the thing during this whole time period.
- The people with an interest in the thing – for example, the owner – were able to know that you were in possession of the thing. You cannot hide this.
- No one challenged the fact that you were in possession of the thing, nor asked to have it back.
- The thing must be the property of a private person, not the State (government). (There are some exceptions to this rule.)
What rights can be lost through the passage of time?
One of the main rights that can be lost with time is the right to sue someone. The lawsuit will not automatically be rejected when it is filed in court, but the person being sued can raise an argument based on prescription as a defence against the lawsuit.
Let’s say that Karim decided to sue Hassen, who has not reimbursed money Karim lent him a long time ago. Hassen could defend himself by claiming that Karim’s lawsuit is prescribed. Karim would have lost the right to get his money back!
Before suing someone, it is therefore important to make sure your rights have not expired.
In the same way, a person who is sued should always check whether the time limit for prescription has expired, since it is up to this person to raise the prescription argument as a defence. In fact, because it is a legal argument, the judge cannot make it for you.
How much time you have to take legal action against someone?
In most cases, you have three years to take a lawsuit in court. This time limit applies to debts, requests for compensation for most kinds of damages, conflicts arising from a contract, etc.
But for every rule, there are exceptions! In the area of prescription, it is important to know about these exceptions and to consider the following:
- Some events interrupt the time limits for prescription.
- For some kinds of lawsuits, the prescription time limit is shorter than three years.
- Sometimes the time limit starts running later.
How is the prescription time limit calculated?
The first step in calculating the time limit is to determine the starting point. After that, it is as though a counter has been put into motion. The day after the starting point, the counter begins counting the days as they pass. The counter works according to full days; hours are not included in this calculation.
The end of the time limit is extended one day if the last day of the limit falls on one of the following:
- a Saturday
- a Sunday
- January 1st or 2nd
- Good Friday
- Easter Monday
- the 2nd Monday in May
- June 24
- July 1st (or July 2nd, if the 1st falls on a Sunday)
- the 1st Monday in September
- the 2nd Monday of October
- December 25th and 26th
What is the starting point for the time limit?
The starting point is the moment at which a person becomes aware of all the essential elements of a lawsuit: fault, damage and a connection between the two.
For example, let’s say that during a family party, someone damages Rohan’s stamp collection by using his stamp book to steady the leg of a table. The time limit would start when he learns who did this, and not when the book was first damaged.
Here is another example: four years after an operation, Tatiana learned that it was the sloppy work of the surgeon that caused her stomach pains. She therefore has three years from the moment she learned the surgeon did not do his work properly to sue him, and not three years from the operation.
- a debt: the starting point is the moment at which a person is entitled to request payment of the debt.
- Failure to pay for something: the starting point is the moment when payment should have been made.
- Failure to pay for a service: the starting point is the moment when the service was provided.
- a hidden defect: the starting point is the moment when the defect is discovered. If it appears gradually, the starting point is the moment when the buyer could have suspected the severity of the problem.
- damage: the starting point is the moment when the fault is committed and the damage occurs, if they occur at the same time. If the damage occurs gradually or only occurs after the fault, the starting point is the moment when the damage begins to appear for the first time. However, the rules for the starting point are different if the fault was a crime.
Are there situations in which the time limit starts later?
Yes, sometimes the time limit starts later. Here are a few examples:
- If someone is unable to act (for example, the person is suffering from severe depression that makes it impossible for her to take care of her affairs), the time limit starts to run when she becomes able to act once again.
- When a child suffers harm before birth, the time limit to sue only starts as of her birth. (Of course, it is the parents who sue on behalf of the child.)
- If a person separated from her spouse wants to sue her ex-spouse for damages suffered during the marriage or civil union, the time limit only starts when the relationship ends.
- If heirs wish to recover amounts which are owed to them from an estate, for example their part of an inheritance, the time limit might start at a different moment.(An estate is the collection of property, debts, rights and obligations of a deceased person that can be passed on to the heirs.)
There are other exceptions, such as for damage caused to children by their parents or to persons that are under tutorship or a protection mandate.
Is there a way to interrupt prescription before the time limit runs out?
Yes, certain words or actions interrupt prescription and put the time clock back to zero. Here are two examples:
Direct or Indirect Acknowledgement of a Debt
For example, for 2 ½ years, Brigitte has owed Mathieu $900. In a telephone conversation, she offers to pay Mathieu back when she starts working again. Brigitte therefore recognized the debt she owed and gave up the benefit of any time limit in her favour. The conversation re-starts the time clock from zero.
Let’s say Brigitte has owed Mathieu $900 for 2 ½ years. He is tired of trying to speak to her about this and has not gotten an answer to his letter demanding to be paid, called a “demand letter”. Mathieu therefore files a lawsuit in small claims court. Even if the matter will still take a long time to be settled, the prescription time limit is interrupted when Mathieu files his lawsuit in court. However, he must still serve the lawsuit on Brigitte within 60 days of the end of the time limit. To “serve” a lawsuit means to officially bring it to someone’s attention, usually by asking a bailiff to deliver it.
Taking legal steps to seize something also interrupts the prescription time clock. But sending a demand letter does not interrupt prescription. A demand letter is a formal request for someone to do or stop doing something within a certain time period.
What happens if you file a lawsuit and a judge rejects it without making a decision on the real issues involved? (For example, the judge rejects it because you filed it in the wrong court.) Or what if you decide to withdraw the lawsuit? In both cases, if the time limit has already expired or expires soon, the law gives you an extra three months to file a new lawsuit. (Again, this new lawsuit must be served with 60 days of end of the prescriptive time limit.)
Are there exceptions to the standard three-year time limit?
Yes, several! Here are some of them:
- To request recognition of a right of ownership on property or other right on an immovable, the time limit is 10 years. On the other hand, the time limit to retake possession of an immovable is one year.
- A victim may have 10 years after she realizes that her bodily injuries were caused by a crime to sue. There is no limit in cases of sexual aggression or family violence – whether during childhood or from a spouse. (Caution! This delay may be different depending on when the crime occurred. You should consult a lawyer on this topic).
- To sue a municipality, you must send a written notice within 15 days of the incident you are complaining about and file a lawsuit in court within six months of the incident. But if a person suffers personal damages (for example, a physical injury) and wants to sue a municipality, the time limit is the standard three-year time limit.
- A court decision in your favour doesn’t come with a cheque! The decision must be put into force against the opposing party. A person who wins a court case has 10 years to take steps to put the decision into force, for example, by collecting money the other party has to pay.
- To claim compensation from the Commission des normes, de l’équité, et de la santé et de la sécurité du travail (CNESST), which is the government body responsible for health and safety in the workplace, a worker has six months from the time he was injured or fell ill because of his work. If the worker dies, his heirs have six months from the date of death to make a claim to the CNESST.
- A challenge to a decision of the Régie de l’assurancemaladie (the government body in charge of health insurance in Quebec), must be made within six months of the Régie’s decision.
- A claim for support payments from the estate of someone who has died must be made within six months of the death. (An estate is the collection of property, debts, rights and obligations of a deceased person that can be passed on to the heirs.)
- Lawsuits for damage to reputation must be filed in the Court of Quebec or Superior Court, depending on the amount, within one year of the time a person learns of damage.
- To make a claim based on a right in a collective agreement, a unionized employee must file a claim with an arbitrator within six months of the day this right was violated or within the time limit set by the collective agreement, which could be shorter.
- To challenge a decision of a complaints commissioner, a complaint must be filed with the Health and Social Services Ombudsman within two years.
There are specific people or bodies that hear these claims and challenges. It is important to check where (court, administrative tribunal, board) to file the request or challenge
Is it possible to set the prescription time limit in a contract?
No. It is not possible to set a time limit in a contract that is different from the one set by law. This kind of provision in a contract is not valid.
Also, it is not possible, in a contract, to give up a prescription time limit that runs in your favour. It is only possible to do this once the time limit has started to run.