Can I claim against the seller for fraud after the reps and warranties deadline?

The deadline in your purchase agreement and the time limit set by statute are two separate clocks. The survival clause says how long the seller’s representations and warranties support a claim in contract. Whether that clause also shuts out a claim that the seller lied on purpose depends on how it is written, so a lawyer has to read it against the limitation statute of your province.

What to look for in the agreement

Read the survival clause, any cap on the seller’s liability and any exclusive-remedy clause together. Check whether any of them carves fraud out, and how the agreement defines fraud. Ask whether a fraud claim needs proof that the seller knew a statement was false, or whether recklessness is enough. A clause that says nothing about fraud leaves the question to the wording of the whole agreement and, if it comes to that, to a court.

The Ontario statutory clock

Under Ontario’s Limitations Act, 2002, s.4, unless the Act provides otherwise, a proceeding must be started within two years of the day the claim was discovered. Section 5(1) treats a claim as discovered on the earlier of the day the person first knew the relevant matters and the day a reasonable person in their circumstances first ought to have known them. Section 15(2) adds an outer limit of 15 years from the act or omission. Under s.15(4), that outer period does not run while the person against whom the claim is made wilfully conceals that the injury, loss or damage occurred, what caused it or who was responsible, or wilfully misleads the claimant about whether a proceeding is appropriate.

Can the agreement change the statute?

In Ontario, s.22(1) says a limitation period applies despite any agreement to vary or exclude it, subject to the exceptions in s.22(2) to (6). For business agreements, s.22(5) allows a period other than the s.15 limit to be varied or excluded by an agreement made on or after October 19, 2006. It allows the s.15 limit to be varied, but suspended or extended only as s.22(4) permits. A clause that shortens the time for every claim could therefore matter. Whether it reaches fraud depends on its words.

Other provinces

Alberta’s Limitations Act, s.3(1), subject to the exceptions it lists, sets two years from when the claimant first knew or ought to have known and ten years from when the claim arose, whichever expires first. Section 4 suspends the ten-year period while the defendant fraudulently conceals the fact that the injury has occurred. British Columbia’s Limitation Act sets two years from discovery and a 15-year outer limit, each subject to the Act’s other provisions. Other provinces run their own regimes, so use the Act of the province whose law governs your agreement.