Limitations Act - Discoverability - Generally [s.5]. Vu v. Canada (Attorney General)
In Vu v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal upheld a motion judge's ruling on limitations discoverability, essentially of their fact-findings:
 Limitation periods are driven by when the “material facts on which [a cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC),  2 S.C.R. 147, at p. 224; see also Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 29, 42. As noted by this court in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41, leave to appeal refused,  S.C.C.A. No. 91: “discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge.”. Grant Thornton LLP v. New Brunswick
 In my view, the motion judge identified the correct law relating to limitation periods. Notably, the motion judge cited to this court’s judgment in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 22, which in turn quoted from this court’s earlier judgment in Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at p. 170:
The principle of discoverability provides that “a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence. This principle conforms with the generally accepted definition of the term ‘cause of action’ — the fact or facts which give a person a right to judicial redress or relief against another”: Aguonie v. Galion Solid Waste Material Inc. [citation omitted.] As emphasized by the motion judge, the real question is whether the plaintiff knows enough facts with which to bring forward the claim: Lawless, at para. 23. If the plaintiff does know “enough facts”, then the claim is discovered and the limitation period begins to run. Knowing enough facts means knowing the “material facts” that are necessary to make the claim: Lawless, at para. 28.
 I reject the suggestion that the motion judge did not appreciate that the principle of discoverability does not turn on whether the claim has a likelihood of success. As the motion judge put it, “the discovery of a claim is also not dependent upon the plaintiff knowing that his claim is likely to succeed”. The motion judge was right in this regard. As noted by Hourigan J.A. in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005, 441 D.L.R. (4th) 393, at para. 19, a determination of when it is appropriate to proceed with a claim does not include “whether a civil proceeding will succeed.” I see nothing in the motion judge’s reasons that would suggest he was unfaithful to that statement of law.
 To the contrary, the motion judge’s reasons demonstrate that he was alive to the applicable law concerning discoverability. The law having been correctly stated, the question really becomes whether the motion judge made palpable and overriding errors of fact. I will now explain why he did not.
In Grant Thornton LLP v. New Brunswick (SCC, 2021) the Supreme Court of Canada contrasted the common law rule of limitations discovery with that of the New Brunswick statutory rule, and found them essential the same:
 Section 5 of the LAA operates against the backdrop of a common law discoverability rule that is well-established. Under that rule, “a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC),  2 S.C.R. 147, at p. 224, citing Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC),  2 S.C.R. 2; see also Ryan v. Moore, 2005 SCC 38,  2 S.C.R. 53, at paras. 2 and 22). This rule has its origins in equity. In particular, it seeks to balance the three rationales for imposing limitation periods — the guarantee of repose, the desire to foreclose claims based on stale evidence and the expectation that a plaintiff will start a claim in a timely manner (M. (K.) v. M. (H.), 1992 CanLII 31 (SCC),  3 S.C.R. 6, at pp. 29-30) — with the need to avoid the injustice of precluding a claim before the plaintiff even has knowledge of its existence (Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549, at para. 36).. Sharma v. Sandhu
 Though a “general rule”, the common law rule does not apply to every statutory limitation period (Ryan, at para. 23, quoting Rafuse, at p. 224). Rather, it is an interpretive tool for construing limitations statutes and, as such, it can be ousted by clear legislative language (Pioneer Corp. v. Godfrey, 2019 SCC 42, at para. 32). In that regard, “many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability’s application” (ibid.). Assessing whether a provincial legislature has codified, limited or ousted the common law rule is a matter of statutory interpretation (ibid., at para. 42, citing Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC),  1 S.C.R. 27, at para. 21).
 As set out at para. 17 above, the text of s. 5 of the LAA reads as follows:
General limitation periods The plain words of this provision are unambiguous. Section 5(1)(a) provides that no claim shall be brought after two years from the day on which the claim is “discovered”. Section 5(2) further specifies that a claim is discovered on the day that a claimant knew or ought reasonably to have known the facts that are material, namely the occurrence of an injury, loss or damage that was caused or contributed to by an act or omission of the defendant. As evidenced by the words of the provision, there is no clear legislative language ousting or limiting the common law rule; in fact, quite the opposite. The event triggering the limitation period in s. 5(1)(a) is linked to the state of the plaintiff’s knowledge in the same manner as the common law rule.
5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of
(a) two years from the day on which the claim is discovered, and
(b) fifteen years from the day on which the act or omission on which the claim is based occurred.
5(2) 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.
 Moreover, there is nothing in the legislative scheme or the object of the LAA that alters the governing principles set out in the common law rule. The New Brunswick legislature enacted the general limitation period scheme in s. 5 to simplify the law of limitation periods. In doing so, it expressly modeled s. 5 on similar limitation provisions found in Ontario, Saskatchewan and Alberta (New Brunswick, Office of the Attorney General, Commentary on Bill 28: Limitation of Actions Act, January 2009 (online), at pp. 1 and 4), all of which have been found to codify the common law rule of discoverability (see, e.g., Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, 133 O.R. (3d) 35, at para. 15; De Shazo v. Nations Energy Co., 2005 ABCA 241, 48 Alta. L.R. (4th) 25, at para. 26; Jardine v. Saskatoon Police Service, 2017 SKQB 217, at para. 36 (CanLII)). The legislature’s express intention to replicate provisions that codify the common law rule is compelling evidence that New Brunswick intended to follow suit.
 In arguing that the legislature ousted the common law rule, Grant Thornton points to some linguistic differences between the common law rule and s. 5. It emphasizes the fact that the common law rule uses the term “cause of action”, whereas s. 5 uses the term “claim”. According to Grant Thornton, these concepts are distinct: the former refers to a set of facts entitling a plaintiff to a remedy from the court, while the latter is “purely a limitations concept” with “only two factual components (wrongful conduct and resulting damage)” (A.F., Grant Thornton LLP and Kent M. Ostridge, at para. 65, quoting D. Zacks, “Claims, Not Causes of Action: The Misapprehension of Limitations Principles” (2018), 48 Advocates’ Q. 165, at p. 165).
 I recognize that the distinction between “claim” and “cause of action” could be meaningful in some circumstances; but in my view, it is not so here. In fact, the LAA’s own wording shows that the use of “claim” does not rule out a shared meaning with “cause of action”. Section 1(1) defines a claim as a “claim to remedy the injury, loss or damage that occurred as a result of an act or omission”. In short, s. 1(1) indicates that the legislature’s use of the term “claim” focuses on a set of facts giving rise to a remedy, which is the same meaning that Grant Thornton attributes to the term “cause of action”.
 This interpretation is supported by the French text of s. 5(2) of the LAA, which reads in part as follows: “[l]es faits ayant donné naissance à la réclamation sont découverts le jour où le réclamant a appris ou aurait dû normalement apprendre”. In addition, the French text of s. 1(1) defines “réclamation” as “[r]éclamation pour obtenir réparation de préjudices, de pertes ou de dommages survenus par suite d’un acte ou d’une omission”. As is apparent, the wording of the French text supports my interpretation of the English text, and confirms that “claim” in s. 5 means “cause of action”, namely: discovering the facts giving rise to a claim to obtain relief for the injury, loss or damage that resulted from an act or omission. This is the legal equivalent of “a set of facts entitling a plaintiff to a remedy”, the definition of a “cause of action” put forward by Grant Thornton.
 More probative are the Hansard Debates preceding the enactment of the LAA. When asked why the statute uses the term “claim” instead of “cause of action”, the Minister of Justice explained:
In a sense, it is really just semantics. Tim Rattenbury, who works for the Office of the Attorney General, and I had a good discussion. The word “claim” is just another way to characterize bringing forward your matter for purposes of litigation. “Cause of action” is the same thing. The standardization of these particular ways of characterizing an action before the courts is simply semantics.In other words, according to the Minister, using “claim” instead of “cause of action” amounts to a distinction without a difference. While not in itself determinative, the Minister’s statement can hardly be taken as evidencing the “clear legislative language” needed to oust or limit the common law rule (see Godfrey, at para. 32). If anything, it demonstrates the opposite.
(New Brunswick, Legislative Assembly, Journal of Debates (Hansard), 3rd Sess., 56th Assem., June 17, 2009, at p. 50 (Hon. Mr. Burke))
 In sum, I am satisfied that s. 5(1)(a) and (2) codifies the common law rule of discoverability. As established by that rule and the LAA, the limitation period is triggered when the plaintiff discovers or ought to have discovered through the exercise of reasonable diligence the material facts on which the claim is based. Having so found, I turn now to ascertaining the particular degree of knowledge required to discover a claim under s. 5.
In Sharma v. Sandhu (Div Ct, 2020) the Divisional Court clarifies when discoverability applies to various administrative limitations:
 At para. 37 of Peixeiro v. Haberman 1997 CanLII 325 (SCC),  S.C.J. No. 31 the Supreme Court of Canada held that the discoverability rule is an interpretative tool for the construing of limitations statutes and ought to be considered each time a limitations provision is in issue. The court adopted the following passage from Fehr v. Jacob (1993) 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):Note: The court dismisses the application of the Limitations Act on the basis of RTA 3(4) ['conflicts resolved in favour of the RTA'], however Limitations Act s.2 ['Application'] makes it clear that the Limitations Act only applies to "court proceedings", a much clearer resolution.
…When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed. Section 57(2) sets the time from which the clock runs from a precise event, namely, the date the tenant vacates the rental unit. The starting of the clock is in no way dependent upon the state of the tenant’s knowledge. It follows that the discoverability rule cannot be used as proposed by the appellants to extend the one-year period prescribed by the legislature.
. LV Windows v. 7194145 Canada Ltd.
In LV Windows v. 7194145 Canada Ltd. (Ont CA, 2020) the Divisional Court addressed whether Limitations Act s.5(1)(a)(i, ii and iii) limitation period had expired on the cases facts:
 In Sampson v. Empire (Binbrook Estates Ltd.), 2016 ONSC 5730, at paras. 37-44, Glithero J. noted the following:. Pioneer Corp. v. Godfrey
 The first factor relating to the discovery of a claim commences on the day on which the person with the claim first knew that the “injury, loss or damage had occurred”. Once a plaintiff knows that some damage has occurred then the claim has been discovered and it is not required that the plaintiff know the extent of the damage or the exact type of damage: Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549 at para. 18.Application of the Law to the Facts
 It is sufficient if the plaintiff knows “enough facts on which to base an allegation of negligence”, or I would add breach of contract, and the plaintiff is not required to know all the facts supporting the claim in order for it to be discovered: Lawless v. Anderson, 2011 ONCA 102 at para. 23. That case also stands for the proposition that the plaintiff need not know the precise cause of the damage. Rather, additional information supporting the claim may be useful in assessing whether or not to proceed, but is not necessary in order to “discover” the claim: see also Howden Power North America Inc. v. A. Swent & Sons Ltd., 2009 CanLII 72090 at paras. 50-51.
 As to ss. (iii), the statute does not require certainty of the defendant’s responsibility for the act or omission giving rise to the claim, and rather it is sufficient if there be shown prima facie grounds to infer the act or omission to be that of the other party: Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.); Kowal v. Shyiak, 2012 ONCA 512 at para. 18.
 The main thrust of the deputy judge’s decision is that “the full extent of the defendant’s damages were not known until well after and may not be fully known at this point”. To the extent that the deputy judge concluded that the limitation period commenced only when the full extent of the damages was known, then she erred in law in so finding. That conclusion runs contrary to s. 5(1)(a)(i) and (ii) of the Limitations Act. The respondent knew that he had suffered an injury to his mouth and specifically his teeth, on February 24, 2015. He was referred to his dentist to ascertain the extent of the damage to his teeth. On February 25, 2015, his dentist advised him of the need for the extraction of two of his teeth. The respondent knew on February 24, 2015 that some damage had occurred. To that extent, the claim was discovered on February 24, 2015 rather than on March 3, 2015, the date when Mr. Shevchenko’s teeth were extracted. As indicated in Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549, at para. 18, it was not required that the respondent know the full extent of the damage or the exact type of damage for the limitation “clock” to begin to run.
 I therefore conclude that the learned deputy judge erred in law when she found that the limitation period only commenced to run when the defendant found out the full extent of the damage caused by the appellant.
In Pioneer Corp. v. Godfrey (SCC, 2019) the Supreme Court of Canada discusses discoverability in limitations law generally:
(a) Limitation Periods Run From the Accrual or Knowledge of the Cause of Action
 This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC),  2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22).
 This discoverability rule does not apply automatically to every limitation period. While a “rule”, it is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods (Peixeiro v. Haberman, 1997 CanLII 325 (SCC),  3 S.C.R. 549, at para. 37). It can therefore be displaced by clear legislative language (Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415,  3 F.C.R. 245, at para. 333, aff’d 2009 SCC 9,  1 S.C.R. 222). In this regard, many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability’s application, particularly in connection with ultimate limitation periods (see e.g. Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4-5 and 15; Limitations Act, R.S.A. 2000, c. L-12, s. 3(1), Limitation Act, S.B.C. 2012, c. 13, ss. 6-8 and 21; The Limitations Act, S.S. 2004, c. L-16.1, ss. 5-7, Limitation of Actions Act, S.N.B. 2009, c. L-8.5, s. 5, Limitation of Actions Act, S.N.S. 2014 c. 35, s. 8; see also Bowes v. Edmonton (City), 2007 ABCA 347, 425 A.R. 123, at paras. 146-58).
 Further, absent legislative intervention, the discoverability rule applies only where the limitation period in question runs from the accrual of the cause of action, or from some other event that occurs when the plaintiff has knowledge of the injury sustained:
In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from “the accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed. [Emphasis added.] Two points flow from this statement. First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire (Peixeiro, at para. 39).
(Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.), at para. 22, cited in Peixeiro, at para. 37.)
 Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply. In Ryan, for example, this Court held that discoverability did not apply to s. 5 of the Survival of Actions Act, R.S.N.L. 1990, c. S-32, which stated that an action against a deceased could not be brought after one year from the date of death. As the Court explained (para. 24):
The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action. [Emphasis added; citation omitted.]By tying, then, the limitation period to an event unrelated to the cause of action, and which did not necessitate the plaintiff’s knowledge of an injury, the legislature had clearly displaced the discoverability rule (Ryan, at para. 27).
 In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which stated that an action must be commenced within two years of the time when “damages were sustained” (para. 2). The use of the phrase “damages were sustained” rather than “when the cause of action arose” was a “distinction without a difference”, as it was unlikely that the legislature intended that the limitation period should run without the plaintiff’s knowledge (para. 38).
 It is therefore clear that the “the judge-made discoverability rule will apply when the requisite limitation statute indicates that time starts to run from when the cause of action arose (or other wording to that effect)” (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016), at p. 103, emphasis added). And, while my colleague Côté J. claims to disagree with my analysis, I am fortified by the endorsement in her reasons of this formulation of discoverability (paras. 140 and 149).
 The issue raised by this appeal is what constitutes sufficiently clear legislative expression in this regard, such that discoverability will apply. In my view, where the event triggering the limitation period is an element of the cause of action, the legislature has shown its intention that the limitation period be linked to the cause of action’s accrual, such that discoverability will apply. As this Court stated in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC),  3 S.C.R. 6, the accrual of a cause of action is a “gradatio[n]” (p. 34). Where all the elements of a cause of action occur simultaneously, the cause of action accrues contemporaneously with the occurrence of each element (M. (K.), at p. 34). Where, however, the occurrence of each element is separated in time, the accrual of the cause of action is a continuing (but not continual) process. That is, the cause of action will continue to accrue as each element of the cause of action occurs.
 This was what the Court in Ryan was referring to when it said that discoverability does not apply where the limitation period “is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action” (para. 24, emphasis added). In Ryan, discoverability did not apply because the action was “complete in all its elements” before the operation of the event triggering the limitation period (para. 18). The limitation period was not dependent upon the accrual of the cause of action and thus the limitation period would begin to run independent of the accrual of the cause of action (see Ryan, at paras. 16, 18, 20, 29 and 32). Citing the trial judge with approval, the Court added this:
The fact of death is of no relevance to the cause of action in question. It is not an element of the cause of action and is not required to complete the cause of action. Whatever the nature of the cause of action, it is existing and complete before the Survival of Actions Act operates, in the case of a death, to maintain it and provide a limited time window within which it must be pursued. The fact of the death is irrelevant to the cause of action and serves only to provide a time from which the time within which to bring the action is to be calculated. [Emphasis added; para. 32.] Had, however, the event triggering the limitation period been an element of the cause of action, or had it been required to occur before the cause of action could accrue, discoverability could apply (Ryan, at paras. 29-30, citing Burt v. LeLacheur, 2000 NSCA 90, 189 D.L.R. (4th) 193). I do not see my colleague Côté J. as disagreeing on this point: she is quite right when she says that “the words ‘basis of the cause of action’ in para. 24 of Ryan should be understood as essentially synonymous with the ‘arising or accrual of the cause of action’” (para. 148). As this Court held in Peixeiro, where the limitation period is based on an event that can be construed as synonymous with the accrual of the cause of action, discoverability will apply (para. 38).
 From all this, it is evident that discoverability continues to apply where the legislature has shown its intent that a limitation period shall run from “when the cause of action arose (or other wording to that effect)” or where the event triggering the limitation period requires the plaintiff’s knowledge of his or her injury (Mew et al., at p. 103). Conversely, discoverability does not apply where that triggering event does not depend on the plaintiff’s knowledge or is independent of the accrual of the cause of action. This is not, as my colleague suggests, a modified test for discoverability (para. 154), but rather is the product of this Court’s application of Fehr in Peixeiro (regarding when discoverability does apply) and Ryan (regarding when discoverability does not apply).