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SNL1995 CHAPTER L-16.1

LIMITATIONS ACT

Amended:

1996 cJ-1.1 s196; 1997 c13 s36; 1998 c22 s37; 1999 c22 s16; 2001 c43; 2004 cL-3.1 s45; 2008 c47 s9

CHAPTER L-16.1

AN ACT TO REVISE THE LAW RESPECTING LIMITATIONS

(Assented to December 21, 1995)

Analysis


       
1.   Short title

       
2.   Definitions

       
3.   Equitable rights preserved

       
4.   Act applies to Crown

              PART I
LIMITATION PERIODS

       
5.   Limitation period 2 years

       
6.   Limitation period 6 years

       
7.   Limitation period 10 years

       
8.   No limitation period

       
9.   Idem 6 years

     
10.   No greater benefit

              PART II
APPLICATION OF LIMITATION

     
11.   Counterclaim

     
12.   Trusts

     
13.   Time for cause of action

     
14.   Postponement of running of time

     
15.   Person under disability

     
16.   Confirmation

     
17.   Extinguishment of rights

     
18.   Enforcement process

              PART III
RECOVERY OF LAND

     
19.   Computation of time re recovery of land

     
20.   Possession by one of several tenants

     
21.   Tenancy

              PART IV
GENERAL

     
22.   Ultimate limitation

     
23.   Conflict of laws

   
23.1   Labrador Inuit rights

     
24.   Application of Act

              PART V
GUARANTEES AND SURETIES

     
25.   Confirmation of promises made by minors

     
26.   Consideration of guarantee

     
27.   Rights of surety

              PART VI
CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

     
28.   RSN 1990 cF-6 Amdt.

     
29.   RSN 1990 cH-16 Amdt.

     
30.   Repeal

     
31.   Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Limitations Act .

1995 cL-16.1 s1

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Definitions

        2. In this Act

             (a)  "action" includes a proceeding in a court and an exercise of a self-help remedy;

             (b)  "collateral" means real or personal property that is subject to an interest that secures payment or performance of an obligation;

             (c)  "Crown" means the Crown in right of the province and in so far as the legislative competency of the Legislature of the province extends, includes the Crown in right of Canada ;

             (d)  "judgment" means a judgment or order of a court or an award in an arbitration to which the Arbitration Act applies;

             (e)  "limitation period" means the period allowed for bringing an action on a cause of action;

              (f)  "secured party" means a person who has an interest in collateral that secures payment or performance of an obligation; and

             (g)  "trust" includes express, implied, resulting or constructive trusts, whether or not the trustee has a beneficial interest in the trust property, and whether or not the trust arises only by reason of a transaction impeached, and includes the duties incident to the office of personal representative, but does not include the duties incident to the interest of a secured party in collateral.

1995 cL-16.1 s2

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Equitable rights preserved

        3. Nothing in this Act affects

             (a)  a rule of equity that denies relief because of acquiescence or undue delay, to a person whose cause of action is not barred by this Act;

             (b)  a rule of equity that denies relief because of laches to a person who claims equitable relief with respect to a right in law or in equity and whose cause of action is not barred by this Act; or

             (c)  a proceeding brought under Rule 54 of the Rules of the Supreme Court, 1986.

1995 cL-16.1 s3

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Act applies to Crown

        4. This Act applies to actions by or against the Crown.

PART I
LIMITATION PERIODS

1995 cL-16.1 s4

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Limitation period 2 years

        5. Following the expiration of 2 years after the date on which the right to do so arose, a person shall not bring an action

             (a)  for damages in respect of injury to a person or property, including economic loss arising from the injury whether based on contract, tort or statutory duty;

             (b)  for damages in respect of injury to person or property including economic loss arising from negligent misrepresentation and professional negligence whether based on contract, tort or statutory duty;

             (c)  for trespass to property not included in paragraph (a);

             (d)  for defamation other than defamation referred to in section 17 of the Defamation Act ;

             (e)  for false imprisonment;

              (f)  for malicious prosecution;

             (g)  for conspiracy to commit a wrong referred to in paragraphs (a) to (e);

             (h)  which is a civil action, to recover a fine or other penalty and to recover a fine or penalty imposed by a court or law;

              (i)  under theFatal Accidents Act ; or

              (j)  under thePrivacy Act .

1995 cL-16.1 s5; 2008 c47 s9

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Limitation period 6 years

        6. (1) Following the expiration of 6 years after the date on which the right to do so arose, a person shall not bring an action

             (a)  for damages for conversion or detention of goods;

             (b)  to recover goods wrongfully taken or retained;

             (c)  for a tort committed against that person which does not come under paragraph 5(a);

             (d)  to enforce an instrument under seal;

             (e)  to enforce the forfeiture of a recognizance;

              (f)  to enforce an obligation arising from a statute;

             (g)  to enforce a foreign judgment;

             (h)  to recover a debt;

              (i)  by a creditor not in possession of collateral to realize on the collateral; and

              (j)  by a debtor not in possession of collateral to redeem the collateral.

             (2)  In subsection (1), "debtor" means a person who owes payment or other performance of an obligation secured, whether or not he or she owns or has rights in the collateral.

1995 cL-16.1 s6

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Limitation period 10 years

        7. (1) Following the expiration of 10 years after the date on which the right to do so arose, a person shall not bring an action or proceeding

             (a)  to enforce a judgment of a court in the province for the payment of money or the recovery of personal property;

             (b)  against the personal representative of a deceased person for a share of the estate;

             (c)  against a trustee in respect of a fraud or fraudulent breach of trust to which the trustee was party or privy;

             (d)  against a trustee for the conversion of trust property to the trustee's own use;

             (e)  to recover trust property or property into which trust property can be traced;

              (f)  to recover money on account of a wrongful distribution of trust property against the person to whom the property is distributed, or a successor; or

             (g)  to recover land.

             (2)  Notwithstanding section 4, paragraph (1)(g) shall not apply to "Crown lands" as defined in the Lands Act .

1995 cL-16.1 s7; 1996 cJ-1.1 s196

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No limitation period

        8. (1) Notwithstanding section 22, a person is not governed by a limitation period and may bring an action

             (a)  relating to the enforcement of an injunction or a restraining order;

             (b)  for a declaration as to the title to property by a person in possession of that property;

             (c)  as a mortgagor to redeem real or personal property in his or her possession;

             (d)  as a mortgagee to foreclose or exercise a power of sale with respect to real or personal property in his or her possession;

             (e)  for a declaration as to personal status; or

              (f)  to enforce an easement, restrictive covenant, profit-a-prendre or other incorporeal hereditament except an action for damages for interference with or a breach of that easement, restrictive covenant, profit-a-prendre or incorporeal hereditament.

             (2)  Notwithstanding sections 5, 6, 7, 9 and 22, where misconduct of a sexual nature has been committed against a person and that person was

             (a)  under the care or authority of;

             (b)  financially, emotionally, physically or other­wise dependant upon; or

             (c)  a beneficiary of a fiduciary relationship with

another person, organization or agency, there shall be no limitation period and an action arising from that sexual misconduct may be brought at any time.

             (3)  Notwithstanding section 24, subsection (2) shall apply regardless of when the cause of action arose.

             (4)  Notwithstanding paragraph 5(h), paragraph 6(1)(f) or section 22, the Crown is not governed by a limitation period and may bring an action at any time

             (a)  to recover a fine or other penalty and to recover a fine or penalty imposed by a court or law; or

             (b)  to enforce an obligation arising from a statute.

1995 cL-16.1 s8; 2001 c43 s1

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Idem 6 years

        9. An action for which a provision as to limitation is not made in sections 5 to 8 or in another Act shall not be brought after the expiration of 6 years after the date on which the cause of action arose.

1995 cL-16.1 s9

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No greater benefit

      10. A person, as against whom there would be a good defence by virtue of this Act shall not derive a greater or other benefit from a judgment or order obtained by another person than he or she could have obtained if he or she had brought the action or other proceeding himself or herself and this Act had been pleaded.

1995 cL-16.1 s10

PART II
APPLICATION OF LIMITATION

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Counterclaim

      11. (1) Notwithstanding section 17, where an action to which this or another Act applies has been commenced, the lapse of time limited for bringing an action is no bar to

             (a)  a counterclaim;

             (b)  a third party claim;

             (c)  a claim by way of set-off; or

             (d)  the addition of a new party under the Rules of the Supreme Court, 1986

respecting a claim relating to or connected with the subject matter of the original action.

             (2)  Subsection (1) does not operate so as to interfere with a judicial discretion to refuse relief on grounds unrelated to the lapse of time for bringing an action.

             (3)  Where an application for an amendment to an action to which this or another Act applies is made after the expiration of the limitation period for that action, the court may allow that amendment

             (a)  to change the pleading or originating process; or

             (b)  to substitute or change the plaintiff or defendant,

provided that

             (c)  that amendment involves a non-prejudicial error and that it arises out of the facts set out in the original pleadings.

             (4)  The court may allow an amendment under subsection (3) on terms as to costs that the court considers just, notwithstanding that between the issuance of the originating documents and the application for amendment, a new cause of action disclosed by the amendment would have been barred by a lapse of time.

1995 cL-16.1 s11; 1999 c22 s16

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Trusts

      12. (1) In an action by a beneficiary of trust property with respect to his or her future interest in that property the cause of action shall not arise until that interest becomes a present interest.

             (2)  In an action by a beneficiary of trust property with respect to his or her interest in that property the cause of action shall not arise until that beneficiary is fully aware of the cause of action where

             (a)  the action is based on a fraud or fraudulent breach of trust to which the trustee was a party or privy; or

             (b)  the action is to recover from the trustee, trust property or proceeds from that property, in the possession of the trustee or previously received by the trustee and converted to his or her own use.

             (3)  Where an action is commenced by a beneficiary under subsection (2), the burden of proving that no cause of action exists rests with the trustee.

             (4)  Where a cause of action arises for the conversion or detention of goods, a further or continuing conversion or detention of goods does not give rise to a new cause of action for the purposes of this Act.

             (5)  Notwithstanding paragraph 12(2)(b), an action shall not prejudice or detrimentally affect a purchaser who purchases, for value, in good faith, prop­erty which is the subject of that action.

1995 cL-16.1 s12

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Time for cause of action

      13. (1) Except as otherwise provided in this Act, the common law rules respecting the time at which a cause of action arises continue to apply.

             (2)  Where in an action for damages

             (a)  the claim is for the breach of a duty of care founded in contract, tort or statutory duty; and

             (b)  the damages claimed are in respect of personal injury or property damage including

                      (i)  economic loss,

                     (ii)  negligent misrepresentation, or

                    (iii)  professional negligence

that cause of action is considered to arise and the limitation period commences to run on the date on which damage first occurs.

1995 cL-16.1 s13

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Postponement of running of time

      14. (1) Notwithstanding section 13, in an action

             (a)  for personal injury;

             (b)  property damage;

             (c)  professional negligence;

             (d)  for relief from the consequences of a mistake;

             (e)  under theFatal Accidents Act ; and

              (f)  for a non-fraudulent breach of trust,

the limitation period fixed by this Act does not begin to run against a person until he or she knows or, considering all circumstances of the matter, ought to know that he or she has a cause of action.

             (2)  The burden of proving that the running of the limitation period has been postponed or suspended under this section is on the person claiming the benefit of that postponement or suspension.

             (3)  Notwithstanding subsection (1), an action included in subsection (1) shall not be taken by a person after the expiration of 10 years from the later of the date of

             (a)  the act or omission on which that action is based; or

             (b)  the last of a series of acts or omissions or the termination of a course of conduct where that action is based upon a series of acts or omissions or a continuing course of conduct.

1995 cL-16.1 s14

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Person under disability

      15. (1) Notwithstanding section 13 and subsection 14(3), where, at the time the right to bring an action arises, a person is under a disability, the running of time with respect to a limitation period under this Act is postponed so long as that person is under a disability.

             (2)  Where the running of time against a person with respect to a cause of action has been postponed under subsection (1) and that person ceases to be under a disability, that action shall be started before the date of expiration of the limitation for that action commencing from the date the disability ceases.

             (3)  Where a person with a disability has a right to bring an action and that right accrued before the disability, the right to bring an action is suspended until that person ceases to be under the disability.

             (4)  An action may be brought under subsection (3) before the later of

             (a)  the date of the expiration of the limitation period for the action as it would have applied had the person not been under a disability; or

             (b)  one year after the disability has ceased.

             (5)  A person is under a disability while that person is

             (a)  less than 19 years of age; or

             (b)  incapable of the management of his or her affairs because of disease or impairment of his or her physical or mental condition; or

             (c)  for the purpose of an action for misconduct of a sexual nature not under subsection 8(2), incapable of commencing that action by reason of his or her mental or physical condition resulting from that sexual misconduct.

1995 cL-16.1 s15; 1999 c22 s16

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Confirmation

      16. (1) A confirmation of a cause of action occurs where a person

             (a)  acknowledges that cause of action, right or title of another person; or

             (b)  makes a payment in respect of that cause of action, right or title of another.

             (2)  Where a person against whom an action lies confirms that cause of action, the time before the date of that confirmation shall not count when determining the limitation period for a person having the benefit of the confirmation against the person bound by that confirmation.

             (3)  Subsection (2) applies only to a right of action where the confirmation is given before the expiration of the limitation period for that right of action.

             (4)  Confirmation by way of an acknowledgement of a cause of action for recovery of a liquidated sum need not include a promise to pay.

             (5)  In order to be effective a confirmation must be in writing and signed by

             (a)  the person against whom that cause of action lies; or

             (b)  his or her agent

and given to the person or agent of the person having the benefit of that cause of action.

             (6)  Where a number of persons are liable by reason of the same event, a confirmation given by one of those persons is effective against that one person only.

             (7)  A confirmation of a cause of action for the recovery of interest operates also as an acknowledgement of a cause of action for the principal sum and for interest later falling due on that principal sum.

             (8)  A person has the benefit of a confirmation only if the confirmation is made to that person or to a person through whom he or she proclaims or if made in the course of proceedings or a transaction purporting to be under the Bankruptcy Act ( Canada ).

             (9)  An acknowledgement of a judgment or debt has effect whether or not

             (a)  a promise to pay can be implied from it; and

             (b)  it is accompanied by a refusal to pay.

           (10)  A confirmation of a cause of action to recover income that is due operates also as a confirmation of a cause of action to recover income that is due at a later time on the same amount.

           (11)  Payment

             (a)  in part by a mortgagee in possession shall be considered to be a confirmation of the title of the mortgagor; and

             (b)  to a mortgagee of principal or interest secured by a mortgage shall operate as a confirmation of his or her right to foreclose or exercise a power of sale under the mortgage.

           (12)  Where a secured party is in possession of collateral

             (a)  his or her acceptance of a payment of principal secured by the collateral; or

             (b)  his or her acceptance of

                      (i)  payment in respect of his or her right to realize on the collateral, or

                     (ii)  another performance by the other person of the obligation secured,

is a confirmation by him or her of the payer's cause of action to redeem the collateral.

1995 cL-16.1 s16

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Extinguishment of rights

      17. (1) A cause of action and the right or title on which it is based are extinguished upon the expiration of the limitation period for that cause of action.

             (2)  Where under another Act, an order extending a limitation period is made after the limitation period has expired, that order revives the cause of action and the right or title on which it is based.

1995 cL-16.1 s17

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Enforcement process

      18. (1) On the expiration of the limitation period for the enforcement of a judgment, the judgment creditor or his or her successor shall not

             (a)  commence a further action to obtain a judgment based upon that earlier judgment; or

             (b)  start a proceeding to enforce a judgment based upon that earlier judgment.

             (2)  [Rep. by 1997 c13 s36]

             (3)  A cause of action to recover costs on a judgment or to recover arrears of interest on principal money is extinguished by the expiration of the limitation period for an action between the same parties on the judgment or to recover the principal money.

1995 cL-16.1 s18; 1996 cJ-1.1 s196; 1997 c13 s36; 1998 c22 s37

PART III
RECOVERY OF LAND

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Computation of time re recovery of land

      19. (1) The right to enter, distrain or bring an action to recover land or rent by a person arises at the time

             (a)  of dispossession, discontinuance of possession or when that person has last received profit or rent from the land;

             (b)  of death where that person claims the estate or interest of the deceased person and that deceased person was, at the time of his or her death, the last person entitled to or in possession of that estate or interest;

             (c)  at which that person becomes entitled to possession or receipt of land or rent by virtue of an instrument other than a will;

             (d)  the interest in land becomes an estate or interest in possession where that estate or interest is a reversionary, remainder or future interest and no person has taken possession or has received profit from that land; and

             (e)  forfeiture occurs or the condition has been broken where entitlement is by reason of that forfeiture or breach of condition.

             (2)  Notwithstanding subsection (1), where a right to enter, distrain upon or bring an action to recover land or rent arises by virtue of

             (a)  a forfeiture or breach of condition of a reversionary or remainder interest and that right is not exercised, the right to enter, distrain upon or recover that land shall be considered to have accrued when the land becomes an estate or interest in possession as if no forfeiture or breach of condition had occurred; and

             (b)  a reversionary estate or interest having become an interest in possession, that right to enter, distrain upon or recover land first arises on the determination of the estate or interest notwithstanding that the person claiming the land is, before that determination, in possession or receipt of profit or rent from that land.

             (3)  Where an administrator has been appointed and that administrator claims the estate or interest of the deceased person, time shall run from the date of death of the deceased person.

1995 cL-16.1 s19

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Possession by one of several tenants

      20. Where one or more persons entitled to land as joint tenants or tenants in common are in possession of more than his or her or their share of that land, that possession shall not be considered to be possession of another of the joint tenants or tenants in common who are not in possession or receiving profit from that land.

1995 cL-16.1 s20

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Tenancy

      21. (1) Where a person is in possession of land as a tenant at will, the right of the true owner of the land to enter, distrain upon or bring an action to recover the land or rent arises

             (a)  at the termination of the tenancy; or

             (b)  one year after the commencement of the tenancy.

             (2)  A mortgagor or beneficiary shall not be considered to be a tenant at will to his or her mortgagee or trustee.

             (3)  Where a person is in possession of land as a year to year tenant without a lease, the right of the true owner of that land to enter, distrain upon or bring an action to recover that land, profit or rent from that land arises

             (a)  at the determination of that first one year or other period; or

             (b)  at the last time when rent was received with respect to that tenancy,

whichever occurs last.

             (4)  Where a person in possession of land is entitled to profit or rent of more than $1 annually from that land

             (a)  under a written lease; and

             (b)  that rent is received by a person wrongfully claiming the rent or profit by reason of a reversionary interest in that land which accrues on the determination of that lease,

the right of the person entitled to profit or rent to bring an action to recover, to enter or distrain upon the land after the determination of the lease arises when the profit or rent is first received by the person who wrongfully claims that profit or rent.

1995 cL-16.1 s21

PART IV
GENERAL

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Ultimate limitation

      22. Notwithstanding a confirmation made under section 16 or a postponement or suspension of the running of time under sections 13, 14 and 15, no action to which this Act applies shall be brought after the expiration of 30 years from the date on which the event which gave rise to the cause of action last occurred.

1995 cL-16.1 s22

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Conflict of laws

      23. This Act applies to actions in the province to the exclusion of laws of all other jurisdictions which

             (a)  impose limitation periods for bringing actions; or

             (b)  in another manner prohibit or restrict the bringing of an action because of a lapse of time or a delay.

1995 cL-16.1 s23

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Labrador Inuit rights

   23.1 Notwithstanding section 23, this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

2004 cL-3.1 s45

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Application of Act

      24. (1) This Act applies to causes of action that arose before this Act comes into force as well as to causes of action that arise after this Act comes into force.

             (2)  Nothing in this Act revives a cause of action in respect of which the limitation period has expired before this Act comes into force.

             (3)  Where

             (a)  a cause of action that arose before this Act comes into force was not governed by a limitation period or the limitation period fixed by this Act is shorter than the limitation period that formerly governed it; and

             (b)  the limitation period fixed by this Act would have expired before this Act comes into force or less than 2 years after this Act comes into force,

the limitation period for the cause of action is the shorter of

             (c)  the limitation period, if any, that formerly governed it; or

             (d)  2 years from the date of which this Act comes into force.

             (4)  Section 16 applies to an acknowledgment or confirmation made before this Act comes into force.

1995 cL-16.1 s24

PART V
GUARANTEES AND SURETIES

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Confirmation of promises made by minors

      25. An action shall not be maintained for the purpose of charging a person with respect to a promise made after reaching the age of 16 years to

             (a)  pay a debt; or

             (b)  ratify a promise or a simple contract,

which he or she contracted or made while still under the age of 16 years, unless the promise or ratification is written and signed by that person.

1995 cL-16.1 s25

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Consideration of guarantee

      26. A guarantee shall be in writing and signed by the party to be charged or by his or her attorney and shall not be considered invalid because the consideration for that guarantee is not written or is not inferred from a written document.

1995 cL-16.1 s26

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Rights of surety

      27. (1) A person who is surety for a debt or duty of another or is liable with another for a debt and who pays that debt or performs that duty, is entitled to have assigned to him or her or to his or her trustee, a judgement or other security which is held by the creditor respecting the debt or duty, whether the judgement or other security is or is not considered at law, to have been satisfied by the payment of the debt on performance of the duty.

             (2)  The person referred to in subsection (1) is entitled to

             (a)  stand in the place of the creditor;

             (b)  use all remedies; and

             (c)  upon a proper indemnity, use the name of the creditor

in an action or other proceeding at law or in equity, in order to obtain from the principal debtor or co-surety, co-contractor or co-debtor, indemnification for the advances made and loss sustained by the person who paid the debt or performed the duty.

             (3)  The payment or performances made by the surety are not pleadable as a bar to the action or other proceedings by him or her.

             (4)  A co-surety, co-contractor or co-debtor is not entitled to recover from another co-surety, co-contractor or co-debtor, by the means stated in this section, more than the just proportion to which, each is justly liable.

1995 cL-16.1 s27

PART VI
CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

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RSN 1990 cF-6 Amdt.

      28. Subsection 6(4) of the Fatal Accidents Act is repealed and the following substituted:

             (4)  One action only may be taken for and in respect of the same subject matter of complaint.

1995 cL-16.1 s28

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RSN 1990 cH-16 Amdt.

      29. Subsection 44(4) and section 47 of the Hydro Corporation Act are repealed.

1995 cL-16.1 s29

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Repeal

      30. (1) The Limitation of Personal Actions Act is repealed.

             (2)  The Limitation of Realty Actions Act is repealed.

             (3)  The following special limitation provisions are repealed:

             (a)  section 27 of the Agrologists Act ;

             (b)  section 50 of the City of Corner Brook Act ;

             (c)  section 50 of the City of Mount Pearl Act ;

             (d)  sections 314 and 315 of the City of St. John's Act ;

             (e)  section 31 of the Dental Act ;

              (f)  section 18 of the Denturists Act ;

             (g)  section 17 of the Hearing Aid Dealers Act ;

             (h)  subsections 198(1), (2), (3) and (4) of the Highway Traffic Act ;

              (i)  section 36 of the Hospitals Act ;

              (j)  section 94 of the Law Society Act ;

            (k)  section 38 of the Life Insurance Act ;

              (l)  section 25 of the Medical Act ;

            (m)  section 443 of the Municipalities Act ;

             (n)  section 39 of the Optometry Act ;

             (o)  section 10 of the Privacy Act ;

             (p)  section 21 of the Proceedings Against the Crown Act ; and

             (q)  section 30 of the Trustee Act .

1995 cL-16.1 s30

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Commencement

      31. This Act shall come into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force - Apr. 1/96)

1995 cL-16.1 s31