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Limitations - Common Law Discoverability

. Fresco v. Canadian Imperial Bank of Commerce

In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2022) the Court of Appeal considered to the nature of 'common law discoverability':
(b) Common law discoverability

[102] The Bank’s second argument is that the question of whether a class member knew that a proceeding was an “appropriate means” to remedy unpaid overtime is only relevant to class members’ claims governed by statutes that include such discoverability language, that is, claims in Ontario, Saskatchewan, and Alberta. On that basis, a class-wide limitations order would be appropriate for all other claims. The Bank adds that this argument might also extend to claims in Ontario, Saskatchewan, and Alberta that predate the amendments adding discoverability language into the statutory text.

[103] The Bank argues that the “appropriate means” criterion in s. 5(1)(a)(iv) of the Limitations Act is not an element of the common law discoverability rules, relying on 407 ETR Concession Company Limited v. Day and other cases.[85] We do not agree that common law discoverability rules could not be found to function in an equivalent manner. The ordinary development of the common law means that the categories are not closed. Whether this argument has traction is a matter to be decided on the individual assessments and not on a fact-free, class-wide basis.


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