Barrister and Solicitor
Legal Writing and Research
Limitations - Discoverability
Clarke v Faust (Ont CA, 2016)
In this case the Court of Appeal addresses the interesting Limitations Act discoverability trigger that a person know that an action is the "appropriate means" to seek a remedy before the limitations starts to run [Limitations Act, s.5(1)(a)(iv)]:
 The motion judge was mistaken in her understanding of the Act. She failed to consider the requirement of s. 5(1)(a)(iv) that a person with a claim know that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage having regard to its nature. That provision requires, in my view, a person to have good reason to believe he or she has a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to seek to remedy the injury, loss or damage.
 Section 4 of the Act provides: “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.” A “claim” is defined to mean “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.
 Section 5 sets out the criteria that define the day on which a claim is discovered:
5(1) A claim is discovered on the earlier of, Section 5(1)(a) sets out a subjective test addressing the knowledge of the person with a claim. Section 5(1)(b) sets out a modified objective test by addressing the knowledge of a reasonable person in the shoes of the appellants. A claim is discovered on the earlier of the date when the person subjectively knew of the matters set out in s. 5(1)(a) and the date a reasonable person would have known of them. Section 5(2) stipulates the presumption the person with the claim knew of the matters in s. 5(1)(a) on the day of the act or omission giving rise to the claim “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).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
 This case turns on the application of s. 5(1)(a)(iv). I will address the appellants’ subjective knowledge first. The question is when they would have first known that commencing a proceeding would be an appropriate means of seeking a remedy for their claim against the respondent considering the nature of the injury, loss or damage.