Tag: basic limitation period
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.
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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.
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As we all know, claims must be commenced in a timely fashion. If too much time passes, a claimant may be precluded from commencing their claim. That is referred to as a limitation period.
In Ontario, the Limitations Act, 2002, SO 2002, c. 24 governs the question of limitation periods. In accordance with section 4 of this Act, the basic limitation period for commencing proceedings is two years from the time the claim was discoverable.
The specific wording of section 4 is as follows:
“Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”
When reading this, an interesting question comes to mind, in that, when does the limitation period expire, exactly?
I reviewed some of the cases that interpreted this provision (and there are well over 1,000 reported decisions that address it) and found a few interesting cases:
- In the decision of Winmill v Woodstock Police Services Board, 2017 ONSC 2528, the Court addressed the question of a limitation period in the context of an altercation with the police that occurred on June 1, 2014. The Court found that the two year limitation period expired on June 1, 2016 – meaning exactly two years from the date of the incident.
- In the case of Seenergy Foods Ltd v Ready Go Transport Inc, 2019 ONSC 4562, the Court addressed the question of whether the moving party was out of time to add a defendant to an ongoing action. For context, an examination for discovery took place on January 26, 2018 and the name of the proposed defendant was provided by way of an answer to an undertaking on November 12, 2018. The Court found that the limitation period did not expire earlier than January 26, 2020 and most likely not until November 12, 2020. In this case, the Court was also of the position that the limitation period expires exactly two years from the date that the claim was discovered.
- In Prescott v Barbon, 2015 ONSC 7689, the Court addressed whether the plaintiff was out of time to pursue a claim relating to a motor vehicle accident that took place on December 28, 2008. The Court found that because December 28, 2010 was a holiday, the limitation period did not expire until the end of December 29, 2010. It is important to consider that the Court made its decision in reliance on whether or not the Court was opened so that the plaintiff could issue the claim. In light of that, I read this decision to suggest that the two year limitation period expired on December 29, 2010 at 5 p.m.
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