Barrister and Solicitor
Legal Writing and Research
Limitations - Discoverability
Brown v Wahl (Ont CA, 2015)
In this case the Court of Appeal usefully discusses the test for discoverability:
 The appellant raises two main grounds of appeal. First, relying on this court’s decision in Lawless v. Anderson, 2011 ONCA 102 (CanLII), 276 O.A.C. 75, she argues that the motion judge erred by failing to apply the test for discoverability of a negligence claim in a case where, as here, the claim arises from elective cosmetic dental surgery.
 Lawless was a medical malpractice case. In describing when the plaintiff knew all the material facts required to discover her claim against the defendant, this court stated, at para. 30:
It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome. She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent. The appellant submits that, in the above-quoted passage, the Lawless court established a four-part test for determining when a prospective plaintiff may be said to have known the material facts necessary for bringing a negligence claim against a medical practitioner in a cosmetic surgery action. This test establishes, according to the appellant, that such a claim is discovered by the prospective plaintiff only when he or she knows: i) of the harm alleged; ii) why it was wrong; iii) what action is required to correct the wrong; and iv) who was responsible.
 Based on this suggested four-part test, the appellant argues that the motion judge erred by failing to properly or adequately analyze the evidence and apply it to the questions of when the appellant was positioned to determine “why” her dental treatment by the respondents was “wrong” and “what would have to be done to correct it”.
 We reject this argument.
 First, Lawless does not create a new four-part test for discoverability in respect of professional malpractice claims. To the contrary, Lawless confirms, at para. 30, that the test for discoverability is when a prospective plaintiff “had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent”. The Lawless court’s reference, immediately preceding this comment, to the four factors relied on by the appellant reflects the application of this test to the evidence before the court in Lawless.
 That Lawless does not establish a new test for discoverability is further confirmed by this court’s comments in Lawless, at para. 23:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run: see Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.). These statements accord with the well-established test for discoverability described by the Supreme Court of Canada in Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549, at para. 18.
 Second, we see no error in the discoverability analysis conducted by the motion judge.
 Section 5(1) of the Act provides:
A claim is discovered on the earlier of, Under s. 5(2) of the Act, a claimant is presumed to have known of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).