Applying the new standard for limitation periods

October 14, 2021 Diana Betlej Uncategorized Tags: , , 0 Comments

On Tuesday we discussed Grant Thornton LLP v. New Brunswick, 2021 SCC 31, and the new test for when a limitation period is triggered in New Brunswick under the Limitation of Actions Act (“LAA”).

The Requisite Degree of Knowledge

Thornton established that the new standard going forward for triggering the two-year limitation period requires that “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. This approach… remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 of the LAA” (Para 42).

Actual or constructive knowledge is furthered described by the LAA. In addition, a plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence (para 44).

Plausible Inference of Liability

The final step that needs to be taken by the plaintiff is to “draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known” (para 45).  This requires the degree of knowledge needed to discover a claim is higher than just mere suspicion or speculation. This is in line with the “principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists” (para 46).

As previously mentioned, it is likely that going forward this new standard triggering the limitation period will apply in Ontario as well as other common law provinces going forward.

Thank you for reading.

Diana Betlej

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