Equitable Tolling

Equitable tolling is a legal principle that evolved from the common law of equity. Equitable tolling states that the statute of limitations will not bar a claim if the plaintiff, despite reasonable care and diligent efforts, did not discover the injury until after the limitations period expired. A legal doctrine under which the failure of one party to meet a deadline may be excused because they were prevented from doing so by circumstances outside their control.

The doctrine of equitable tolling means only that the running of the statue is suspended, not that the limitations period begins over again. Thus, even if the limitations period were suspended during the pendency of the initial suit, it would have resumed after the first suit was dismissed. Equitable tolling also means that a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so.

In other words, equitable tolling is only triggered by some affirmative conduct on the part of the defendant after initial wrongdoing- the mere failure to disclose the wrongdoing is insufficient.

Although grounds for trolling the statute of limitations vary by jurisdiction, common grounds include:

• The plaintiff was a minor at the time a cause of action accrued.
• The plaintiff has been deemed mentally incompetent.
• The plaintiff has been convicted of a felony and is imprisoned.
• The defendant has filed a bankruptcy case triggering a stay of other lawsuits.
• The defendant is not physically within a certain jurisdiction.
• The parties were engaged in good-faith negotiations to resolve a dispute without litigation when the statute of limitations expired.

Tolling may occur under a statute that specially provides for the tolling of the statute of limitations during specified circumstances. It may also take the form of equitable tolling, where the court applies common law principles of equity to extend the time for the filing of a document. A plaintiff may raise equitable tolling in opposition to a statute of limitations defence. But, for equitable tolling to apply, there must be some conduct on the part of the defendant after the initial wrongdoing: mere silence or the failure to disclose the wrongdoing is insufficient. The plaintiff has the burden of showing that subsequent and specific action by the defendant somehow prevented the commencement of the action promptly.