Will the new test for limitation periods in New Brunswick affect claims in Ontario?

October 12, 2021 Diana Betlej Litigation Tags: , 0 Comments

A question that is often asked by plaintiffs is, “when does the clock start ticking to bring my claim?”

In Ontario, there are with certain exceptions, two limitation periods for plaintiffs to bring their claim and the rule of discoverability. First, pursuant to section 4 of the Limitations Act, 2002, no claim shall be brought after two years from the day on which the claim was discovered.

The second limitation period, which is known as the ultimate limitation period, as per s. 15(1) bars claims from being made after the 15th anniversary of the day on which the act or omission took place.

In New Brunswick there are statutory limitations for bringing claims along with the doctrine of discoverability. First, pursuant to section 5(1)(a) of the New Brunswick Limitation of Actions Act (“LAA”), no claim shall be brought after two years from the day on which the claim was discovered. Second, according to section 5(1)(b), no claim shall be brought after fifteen years from the day on which the act or omission on which the claim is based occurred. Section 5(2) further states that a claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss, or damage had occurred, (b) that the injury, loss, or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.

In the decision of Province of New Brunswick v. Grant Thornton, 2020 NBCA 18, the Court of Appeal of New Brunswick established the test for when a limitation period is triggered. They focused on the view that s. 5(1)(a) does not begin to tick until the plaintiff has discovered their claim. In their view, “the two-year limitation period begins to run the day after the plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy” (Para 7).

A year later, the Supreme Court of Canada came to a different conclusion in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Here, the Court enforced a new standard for when a plaintiff has the requisite degree of knowledge to discover a claim under section 5(2) of the LAA, which in turn affects the two-year limitation period under s. 5(1)(a). Going forward the standard to be enforced is whether “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” (Para 42).

Although Grant Thornton arose from legislation in New Brunswick, it is plausible the Court’s decision will have implications for how Ontario’s Limitations Act, 2002 and the discoverability doctrine will be interpreted going forward.

Thank you for reading.

Diana Betlej

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