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Limitations Act - Discoverability - Presumption [s.5(2)]. Pascuet v. Sky Service F.B.O. Inc.
In Pascuet v. Sky Service F.B.O. Inc. (Div Ct, 2026) the Divisional Court dismissed a plaintiff's appeal, that brought against "the defendant’s motion for summary judgment" which "dismissed the action on the basis that it was statute-barred, as the claim had been initiated more than two years after it was discovered".
Here the court considers doctrine on the 'appropriate means' [LA s.5(1)(a)(iv)] limitations element, including the role (if any) of time wasted in a good faith pursuit of the same cause of action in the wrong court system:[48] In Heller v. Uber Technologies Inc., 2023 ONSC 1942, at paras. 61 to 66, Justice Perrell aptly summarized the law in this area:[61] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the factor that a proceeding is an “appropriate” means to seek a remedy, under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the plaintiff knew (a subjective criterion) or ought to have known, i.e., had the means of knowing (a modified objective criterion) about the claim. The basic limitation period for discovering a claim is two years in Ontario.
[62] Under the discoverability principle, the limitation period commences to run when the plaintiff subjectively discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. In other words, when a reasonable person with the abilities and in the circumstances of the plaintiff should have acquired facts to become knowledgeable about his or her claim, the limitation period runs, or, put conversely, the limitation period does not stop running, if the plaintiff ought to have taken steps but took no steps to investigate whether he or she has a claim.
[63] The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case; it is a fact-based analysis. What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.
[64] The modified objective test applies only if a plaintiff does not have actual subjective knowledge of the claim. If the plaintiff has subjective knowledge of his or her claim, the limitation period is running subject to s. 5(1)(a)(iv) of the Limitations Act, 2002, which adds the element that a proceeding is an “appropriate” means to seek a remedy.
[65] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a plaintiff will know of the matters of his or her claim on the day that the act or omission took place. When a limitation period defence is raised, - the onus is on the plaintiff - to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.
[66] Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge. If the plaintiff does know “enough facts”, which means knowing the material facts, the claim is discovered, and the limitation period begins to run. [49] At the time of the summary judgment motion, the facts relevant to the limitation period dispute were known and essentially undisputed. Contrary to the appellant’s submission, no serious credibility issues regarding the limitation period issue arose on the record. As the appellant acknowledged at the appeal hearing, the matters said to raise material credibility concerns pertained to questions of law or to matters peripheral to the controlling issue, namely, when the applicable two-year limitation period began to run.
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Ground #5: Did the motion judge err in law by finding that, because the appellant commenced a proceeding in the Federal Court, the fourth element of the test for discoverability, namely s. 5(1)(a)(iv), was satisfied?
[71] The appellant argued before the motion judge that the limitation period did not begin to run until his Federal Court action was dismissed because he did not know that the appropriate remedy was to commence a wrongful dismissal action against the respondent in the Superior Court of Justice.
[72] The motion judge properly found that the appellant knew, or reasonably ought to have known, that a legal proceeding would be an appropriate means of remedying his loss. The motion judge properly concluded that the appellant’s decision to commence an action against the respondent in the Federal Court demonstrated that he knew, or ought to have known, that a proceeding was an appropriate means of seeking a remedy. See para. 41 of AJ Kamal’s decision.
[73] Discoverability does not require that a plaintiff know the exact nature or extent of their damage. See Sampson v. Empire (Binbrook Estates), 2016 ONSC 5730, at para. 37.
[74] In Beniuk v. Leamington (Municipality), 2020 ONCA 238, at para. 75, the Court of Appeal noted that the Act “does not permit a party to engage in litigation in stages for the same wrong” and, at para. 70, that it does not “import an idiosyncratic limitation period calibrated by the claimant’s familiarity with or ignorance of the law.”
[75] The facts in Beniuk are analogous. The plaintiffs claimed damages to their property resulting from increased road traffic and initially brought a claim for injurious affection before the Ontario Municipal Board (“OMB”), which declined jurisdiction. One week later, they commenced an action in the Superior Court alleging nuisance and negligence. The Court held that the limitation period is not postponed until a plaintiff identifies the right forum.
[76] The plaintiffs submitted that their claim was not discovered until the OMB declined jurisdiction over their injurious affection claim.
[77] The Court found that the plaintiffs’ claim had been discovered in January 2010, when they were first put on notice of the forum issue. The motion judge made no palpable and overriding error in finding that it was not legally appropriate for the plaintiffs to wait until after the OMB’s decision to commence civil proceedings. The fact that the plaintiffs chose an alternative process did not, in itself, suspend the running of the limitation period. There was no evidence explaining why the plaintiffs did not commence both an OMB proceeding and a civil action concurrently.
[78] As stated in Novak v. St. Demetrius (Ukrainian Catholic) Development Corporation, 2017 ONSC 3503, at para. 27, a limitation period is not extended simply because a plaintiff commences a claim in the wrong forum.
[79] At this stage, it is important to distinguish the two Court of Appeal decisions relied on by the appellant.
[80] In Presidential MSH Corporation v. Marr, Foster & Co. LLP et al., 2017 ONCA 325, the defendant accountant filed the plaintiff corporation’s tax returns late, resulting in the Canada Revenue Agency (“CRA”) denying certain tax credits and causing the plaintiff to incur approximately $550,000 in unpaid taxes, interest, and penalties. The defendant advised the plaintiff to hire a tax lawyer to appeal the CRA’s assessments and actively assisted in that process. The CRA confirmed its assessments in July 2011, and the plaintiff commenced a negligence action against the defendant in August 2012.
[81] In allowing the appeal, the Court of Appeal found that the motion judge erred in concluding that the claim was discovered in April 2010 when the plaintiff received the CRA’s notices of assessment. The Court held that a proceeding was not an appropriate means of remedying the loss until May 2011, when the CRA advised it intended to confirm the assessments.
[82] The defendant actively assisted the plaintiff in appealing the CRA’s assessments, including drafting the application for discretionary relief and supporting the tax lawyer’s efforts. Those efforts had the potential to resolve the plaintiff’s loss without litigation, making litigation premature during that period.
[83] Because the CRA appeal process had the potential to eliminate the plaintiff’s loss, it was not appropriate to commence a proceeding until that process had been exhausted in May 2011. The Court emphasized that the limitation period under s. 5(1)(a)(iv) of the Limitations Act does not begin until a proceeding becomes an appropriate means of seeking a remedy.
[84] The Court therefore concluded that the plaintiff’s claim was not statute-barred, as the limitation period began in May 2011 and the action was commenced within two years of that date.
[85] Presidential is distinguishable. That case involved professional negligence, and the defendants, as tax experts, were actively attempting to mitigate the plaintiff’s loss and resolve the issue with CRA through the appeal process. Here, there is no suggestion that the respondent provided any assurances or was involved in ameliorating the appellant’s loss.
[86] Presley et al. v. Van Dusen et al., 2019 ONCA 66, is also distinguishable.
[87] In that case, the plaintiffs, homeowners, retained the defendant to install a septic system in 2010. Although the system was approved by the local health unit, problems began to emerge in 2011 and escalated to smells and effluent by 2013. The defendant repeatedly assured the plaintiffs that he could fix the issues, but his efforts were unsuccessful. In 2015, the health unit condemned the system, requiring its replacement. The plaintiffs commenced legal action later that year. The Superior Court found the action to be statute-barred, and that decision was upheld by the Divisional Court.
[88] The Court of Appeal allowed the appeal, finding that the trial judge had failed to consider s. 5(1)(a)(iv) of the Act, which requires determining when the plaintiffs knew, or ought to have known, that legal proceedings were an appropriate means of seeking a remedy. This omission constituted an error of law.
[89] The Court held the plaintiffs reasonably relied on the defendant’s assurances and expertise and believed that the problem could be resolved without litigation. As a result, their realization that litigation was necessary was delayed until 2014, thereby rebutting the presumption under s. 5(2) of the Act.
[90] The Court further found that the plaintiffs could not have known that legal proceedings against the health unit were appropriate until they realized that the installer could not resolve the issue. The same limitation period applied to both defendants, and the claim against the health unit was also within the prescribed two-year period.
[91] The defendants in Presley repeatedly assured the plaintiffs that the defects could be repaired and that the loss could be remedied without litigation.
[92] That case is distinguishable. Here, the respondent made no such assurances and took no steps to ameliorate the situation. . Pascuet v. Sky Service F.B.O. Inc.
In Pascuet v. Sky Service F.B.O. Inc. (Div Ct, 2026) the Divisional Court dismissed a plaintiff's appeal, that brought against "the defendant’s motion for summary judgment" which "dismissed the action on the basis that it was statute-barred, as the claim had been initiated more than two years after it was discovered".
The court considers the LA s.5(2) ['Presumption'] of the plaintiff's knowledge of when the actionable acts or omissions took place, here from a 'due diligence' perspective:[24] Section 5(2) creates a presumption that a claimant acquired knowledge of his or her claim on the date the act or omission on which the claim is based took place unless there is evidence to the contrary.
[25] In Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 42:A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a) [of the Limitations Act]. While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case […] [26] 5(1)(a) focuses on when a plaintiff had actual knowledge of the material facts underlying the claim, namely, knowledge of the matters referred to in s. 5(1)(a)(i) to (iv). Unless the contrary is proved, a plaintiff is presumed to have known of those matters on the date of the events giving rise to the claim (Fennell v. Deol, 2016 ONCA 249, at para. 21). While a plaintiff’s due diligence is relevant to the analysis under s. 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred (Fennell at paras. 18 and 24; Galota v. Festival Hall Developments Limited, 2016 ONCA 585, 133 O.R. (3d) 35, at para. 23). . Land v. Dryden Police Services Board
In Land v. Dryden Police Services Board (Ont CA, 2023) the Court of Appeal allowed an appeal from a summary dismissal of a lawsuit by a self-represented aboriginal couple who sued the police over events following a report that the woman had attended to pick up children from school while intoxicated. The action was grounded in negligent investigation, negligence, negligent infliction of mental distress, invasion of privacy, trespass, misfeasance in public office and breaches of ss. 7, 8, 9 and 12 of the Charter.
In these quotes the court upholds a motion judge's ruling that claims against the Children's Aid were Limitations Act statute-barred, as s.5(2) requires substantiating evidence to rebut it's presumption:[23] Under s. 5(1), a claim is discovered on the earlier of:(a) the day on which the person with the claim first knew:
(i) that the injury, loss or damage had occurred;
(ii) that it was caused 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 a proceeding would be an appropriate means to seek a remedy; or
(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). [24] Section 5(2) of the Limitations Act, 2002, establishes a presumption that a person with a claim knew of the matters referred to in clause 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[25] In his reasons, the motion judge acknowledged that the appellants asserted in their factum that s. 5(1)(b) of the Limitations Act, 2002, “applies to their case as [they] are First Nation from Treaty #3 and are low income with limited education.” However, he concluded that this statement lacked an evidentiary foundation and was therefore insufficient to rebut the presumption that the basic two-year limitation began to run on November 24, 2015, the date the events occurred, and had therefore expired.
[26] On appeal, the appellants argue that the motion judge erred in failing to find there was at least a genuine issue requiring a trial concerning the application of s. 5(1)(b) of the Limitations Act, 2002 to their case. They submit that it is well‑established that litigants wait until the resolution of criminal proceedings before commencing an action. Further, they contend that the motion judge erred in holding there was no evidentiary foundation for their claims that they were low‑income First Nations from the Treaty #3 area. They say those facts were obvious from various statements (such as their address) and exhibits contained in the record and/or that the motion judge erred in failing to take judicial notice of those facts.
[27] I would not accept these submissions. The appellants’ claims against the Society defendants were not dependent on the outcome of the criminal proceedings and the outcome of those proceedings did not affect the limitation period for commencing the action against the Society defendants.
[28] Further, even assuming the motion judge should have accepted as proven the factual matters relied on by the appellants, those matters are not sufficient to displace the presumption contained in s. 5(2) of Limitations Act, 2002. A person’s status as low income and/or First Nations and/or having limited education is not sufficient, standing alone, to rebut the s. 5(2) presumption. Rather, case-specific information is required to demonstrate why a person with a claim did not learn of the matters enumerated in s. 5(1)(a) on the day the act or omission giving rise to the claim occurred. The appellants provided no evidence in their affidavits filed on the motion concerning when and how they learned of their claim and why they waited until April 2018 to commence an action against the Society defendants.
[29] In the circumstances, I see no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statue barred. This conclusion is fatal to all of the appellants’ claims against the Society defendants. . Gordon Dunk Farms Limited v. HFH Inc.
In Gordon Dunk Farms Limited v. HFH Inc. (Ont CA, 2021) the Court of Appeal (following the SCC in Grant Thornton) held that the degree of certainty of facts required to trigger discoverability is 'plausibility' [SS: locate this under s.5(2) 'Presumption']:b) Meaning of a “Claim”
[25] The context for the appellant’s argument is ss. 4, 5(1) and (2), and the definition of “claim” in s. 1 of the Act, which state:1 In this Act, … “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;
…
4 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.
5 (1) A claim is discovered on the earlier of,
(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. [26] The meaning of “claim” in the Act was explained by this court in Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, and confirmed most recently by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, in respect of the New Brunswick Limitation of Actions Act, S.N.B. 2009, c. L-8.5 (the “N.B. Act”). In Kaynes, the court explained that while the Act no longer refers specifically to a cause of action, instead it sets out universal criteria for the commencement of the limitation period in respect of a claim: at paras. 50-58. A claim is pursued in a court proceeding to obtain a remedy for a loss that the defendant caused the plaintiff to suffer by its act or omission. To obtain a remedy in a court proceeding, a person must assert a cause of action.
[27] In Grant Thornton, Moldaver J. rejected the argument that there was a meaningful distinction between “claim” and “cause of action” in the context of the N.B. Act (which is similar but not identical to the Ontario Act), stating at para. 37: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”. c) Discoverability of a “Claim”
[28] Because a claim is for a legal remedy in a court proceeding, one can have a claim for the same remedy based on one or more acts or omissions that may have caused the loss. In pleading parlance, different acts or omissions may constitute particulars of the claim. However, the claim, as defined, is for the remedy itself – in this case, damages for negligence and breach of contract.
[29] As the Supreme Court of Canada released its decision in Grant Thornton following the oral argument of this appeal, the court sought and received further written submissions from the parties on the effect of that decision on the issues to be decided on this appeal.
[30] In Grant Thornton, the issue was whether a plaintiff with a negligence claim must have discovered every constituent element of that claim, including knowledge of a duty of care and a breach of the standard of care, before the limitation period would begin to run. In rejecting that position, Moldaver J. articulated the test for the degree of knowledge required under the N.B. Act to trigger the commencement of the limitation period, at para. 42:[A] claim is discovered when a 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. [31] Moldaver J. emphasized that the “plausible inference of liability” standard makes it clear that certainty is not required. Of course, one will not know for certain if a defendant is liable for a loss until the verdict is delivered following a trial or summary judgment motion.
[32] The issue that the appellant raises here is: what is the significance of the “act or omission” that is referred to in ss. 5(1)(a)(ii) and (iii) of the Act? Is the appellant correct that a separate limitation period begins to run in respect of each act or omission committed by the defendant as part of its negligent conduct contributing to the loss, thereby requiring a separate discoverability analysis for each such act or omission? Or does the plaintiff only have to know that the defendant’s involvement in the loss means that it must have committed one or more negligent acts or omissions that caused or contributed to the loss?
[33] In my view, the limitations jurisprudence of this court, effectively confirmed by the Supreme Court in Grant Thornton, establishes that the appellant’s position has been rejected: see, e.g., McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.R. (3d) 304 (C.A.); Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75; Dale v. Frank, 2017 ONCA 32, 136 O.R. (3d) 315, leave to appeal to S.C.C. refused, 37494 (October 12, 2017); and Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600.
[34] A plaintiff need not know the exact act or omission by the defendant that caused the loss in order to start the limitation period running. What it needs to know is that an incident occurred that resulted in a loss (s. 5(1)(a)(i)), that the defendant did or failed to do something to cause that loss (s. 5(1)(a)(ii) and (iii)), and that, having regard to the nature of the injury, loss, or damage, a court proceeding is an appropriate means to seek a remedy (s. 5(1)(a)(iv)).
[35] The damages and injury caused by a car accident provide an instructive example. The defendant’s car slams into the plaintiff’s car. The plaintiff knows the defendant was driving, but may not know whether the defendant fell asleep at the wheel, neglected to get the brakes of the car serviced, was distracted by a phone call, was drunk, or was just careless. The plaintiff will plead all of those allegations as part of its negligence claim. In discovery, the true facts will likely be disclosed. It is also possible that the actual cause or causes of the accident may not be revealed until trial. But the action must be commenced within two years of when the plaintiff knows or ought to know that the defendant committed some act or omission that caused the loss or damage.
[36] And what is meant by “knows” is that the plaintiff has the evidentiary basis to believe that the defendant did an act or made an omission that caused a loss for which a court proceeding is appropriate to obtain a remedy – the basis of a plausible inference of liability, in the words of Moldaver J. Of course, at trial, it may turn out that the defendant was not responsible for the loss, either because they owed no duty of care, they met the standard of care, or they did not commit the act or omission that was alleged.
[37] It is possible that there may be circumstances where a plaintiff learns later about another act or omission that was not apparent from the circumstances of the loss and that gives rise to a new claim. That is what occurred in Kaynes, where the investor knew early on that the company’s financial disclosure was misleading and negligent, and therefore had to commence its negligent misrepresentation action. But it only learned much later that the company had knowingly and fraudulently made the misleading claims, and therefore the investor had more time to allege fraud. . Grant Thornton LLP v. New Brunswick
In Grant Thornton LLP v. New Brunswick (SCC, 2021) the Supreme Court of Canada considered the degree of collective knowledge of all the discoverability elements that's required to trigger discoverability (here under New Brunswick statutory limitations, which it held to be the same as common law discoverability):(2) The Requisite Degree of Knowledge
[41] As noted, the Court of Appeal disagreed with the motions judge on the extent of knowledge required to discover a claim under s. 5. The motions judge held that a plaintiff needs to know only enough facts to have prima facie grounds to infer the existence of a potential claim. The Court of Appeal, on the other hand, held that discovery of a claim requires actual or constructive knowledge of facts that confer a legally enforceable right to a judicial remedy, which includes knowledge of every constituent element of the cause of action being pled. Thus, on the Court of Appeal’s interpretation, in addition to knowledge of a loss and causation, a claim in negligence would include knowledge of a duty of care as well as knowledge of a breach of the standard of care.
[42] In my respectful view, neither approach accurately describes the degree of knowledge required under s. 5(2) to discover a claim and trigger the limitation period in s. 5(1)(a). I propose the following approach instead: a claim is discovered when a 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, in my view, remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 of the LAA.
[43] By way of explanation, the material facts that must be actually or constructively known are generally set out in the limitation statute. Here, they are listed in s. 5(2)(a) to (c). Pursuant to s. 5(2), a claim is discovered when the plaintiff has actual or constructive knowledge that: (a) the injury, loss or damage occurred; (b) the injury loss or damage was caused by or contributed to by an act or omission; and (c) the act or omission was that of the defendant. This list is cumulative, not disjunctive. For instance, knowledge of a loss, without more, is insufficient to trigger the limitation period.
[44] In assessing the plaintiff’s state of knowledge, both direct and circumstantial evidence can be used. Moreover, a plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. Suspicion may trigger that exercise (Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 42).
[45] Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known. In this particular context, determining whether a plausible inference of liability can be drawn from the material facts that are known is the same assessment as determining whether a plaintiff “had all of the material facts necessary to determine that [it] had prima facie grounds for inferring [liability on the part of the defendant]” (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583, at para. 7; see also para. 8, quoting Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 30). Although the question in both circumstances is whether the plaintiff’s knowledge of the material facts gives rise to an inference that the defendant is liable, I prefer to use the term plausible inference because in civil litigation, there does not appear to be a universal definition of what qualifies as prima facie grounds. As the British Columbia Court of Appeal observed in Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242, 11 B.C.L.R. (6th) 217, at para. 77:As noted in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, some cases equate prima facie proof to a situation where the evidence gives rise to a permissible fact inference; others equate prima facie proof to a case where the evidence gives rise to a compelled fact determination, absent evidence to the contrary. [Citation omitted.] Since the term prima facie can carry different meanings, using plausible inference in the present context ensures consistency. A plausible inference is one which gives rise to a “permissible fact inference”.
[46] The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation. This accords 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. At the same time, requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or “perfect knowledge” (De Shazo, at para. 31; see also the concept of “perfect certainty” in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75 (CanLII), 8 Alta. L.R. (3d) 379, at para. 8). Indeed, it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83, at para. 213, citing Peixeiro, at para. 18).
[47] In my respectful view, endorsing the Court of Appeal’s approach that to discover a claim, a plaintiff needs knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim, would move the needle too close to certainty. A plausible inference of liability is enough; it strikes the equitable balance of interests that the common law rule of discoverability seeks to achieve.
[48] It follows that in a claim alleging negligence, a plaintiff does not need knowledge that the defendant owed it a duty of care or that the defendant’s act or omission breached the applicable standard of care. Finding otherwise could have the unintended consequence of indefinitely postponing the limitation period. After all, knowledge that the defendant breached the standard of care is often only discernable through the document discovery process or the exchange of expert reports, both of which typically occur after the plaintiff has commenced a claim. As the Court stated in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 55:Since the purpose of the rule of reasonable discoverability is to ensure that plaintiffs have sufficient awareness of the facts to be able to bring an action, the relevant type of awareness cannot be one that it is possible to lack even after one has brought an action. [Emphasis added.] Although the Court in K.L.B. was dealing with discoverability in a different context, the basic principle is relevant here. The standard cannot be so high as to make it possible for a plaintiff to acquire the requisite knowledge only through discovery or experts. And yet, that is precisely the standard endorsed by the Court of Appeal in the instant case. With respect, that standard sets the bar too high. By the same token, the standard is not as low as the standard needed to ward off an application to strike a claim. What is required is actual or constructive knowledge of the material facts from which a plausible inference can be made that the defendant acted negligently.
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