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Limitations - Discoverability

Liu v Wong (Ont CA, 2016)

In this case the Court of Appeal clarified that discoverability relates to the discovering of the cause of action, not the magnitude nor type of the damages:
[6] Section 4 of the Limitations Act, 2002 provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. Section 5(1) sets out the circumstances in which a claim will be taken to have been “discovered”. Section 5(2) provides that the claimant is presumed to know the matters giving rise to discoverability – unless the contrary is shown –“on the day the act or omission on which the claim is based took place”.

[7] Mr. Liu claims that he did not know he had a cause of action – a claim – until he received the doctor’s report following the tort claim assessment respecting the car accident in which he first injured his knee, on October 19, 2012. The report did not address any injury related to his treatment by Dr. Wong. However, the law is quite well established that it is knowledge of the material facts necessary to support the cause of action that triggers the commencement of the litigation period. Knowledge of the extent of the damages is not necessary. As the Supreme Court of Canada has said in Peixero v. Haberman, [1997] 3 S.C.R [Page 557], at para. 18:
[O]nce the plaintiff knows that some damage has occurred and has identified the torfeasor, the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty in the cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.
[8] In Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 (CanLII), at para 32, this Court affirmed these principles in stating that “a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered by the plaintiff by the exercise of reasonable diligence.”

[9] This is precisely the analysis the motion judge carried out here. On Mr. Liu’s own evidence, it is clear that he was fully aware that he had problems with his knee immediately following – if not during – the removal of the staples by Dr. Wong in September 2012. He says he thought that Dr. Wong had “botched the job”, that he experienced sharp pain and called an ambulance later that same evening. He told the attending physician during a follow-up appointment on September 16, that Dr. Wong had caused the injury to his knee.

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