Limitations - Common Law Discoverability. Browne v. Meunier
In Browne v. Meunier (Ont CA, 2023) the Court of Appeal considers the limitations doctrine of 'common law discoverability', here in relation to an RPLA limitation:
The discoverability rule and whether it applies to s. 4 of the RPLA. Fresco v. Canadian Imperial Bank of Commerce
 Statutory limitation periods may be subject to a common law 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’”: Pioneer Corp. v. Godfrey, 2019 SCC 42,  3 S.C.R. 295, at para. 31. This common law rule of discoverability has been expressly codified in some statutory provisions. The Supreme Court has made clear, however, that the applicability of the discoverability rule to a statutory limitations provision is a matter of statutory interpretation – of ascertaining how the legislature intended to change the law through the statutory text it enacted – and the discoverability rule can be understood to apply even where it is not expressly referenced in the provision. That is, substance is to prevail over form, and “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”: Pioneer Corp., at para. 36.
 The issue in the present case, then, is whether the limitation period in s. 4 of the RPLA runs from the accrual of a cause of action. If it does, then there is a presumption that the discoverability rule applies. As explained below, I conclude that it does.
 Section 4 of the RPLA expressly references the accrual of the action:
No person shall … bring an action to recover any land or rent, but within ten years next after the time at which the right … to bring such action, first accrued to some person through whom the person making it or bringing it claims … or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right … to bring such action, first accrued to the person making or bringing it. [Emphasis added].Section 15 carries on to provide that at the end of the 10 year period, the right to bring an action is extinguished.
 The trial judge did not refer to Pioneer Corp. and likely was not referred to it by counsel. In any event, the trial judge erred in reasoning that because “the discovery regime” set out in s. 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, had no application to the RPLA, the discoverability rule therefore did not apply. The error was in failing to consider how the common law rule of discoverability interacts with the provisions of the RPLA. That question is resolved by Pioneer Corp., which provides the interpretive presumption that a statutory limitation period premised on the accrual of an action begins to run when the facts establishing the cause of action were known or ought to have been known by a reasonably diligent person.
 The trial judge also considered s. 28 of the RPLA, which explicitly provides for discoverability in cases of concealed fraud, and concluded that had the legislature intended discoverability to apply to s. 4, it would have used similarly explicit language. Again, I do not agree with this conclusion. The expressio unius interpretive principle is not absolute and in the case of the interpretation of s. 4, this principle is overcome by the strength of the competing interpretive principle articulated in Pioneer Corp., which presumes the application of the discoverability rule and requires explicit language to oust its application.
 In my view, applying the proposition articulated in Pioneer Corp. to the interpretation of s. 4 leads to the conclusion that discoverability must apply to that section. As noted above, the trigger for bringing the action is, expressly, the accrual of the action and not some external event: Pioneer Corp., at para. 35. The running of the limitation period under s. 4 would therefore be tolled until the material facts constituting the infringement were discovered or were discoverable by a reasonably diligent person in the circumstances of the rights holder. (Note that these reasons are restricted to the interpretation of s. 4 and do not address the issue of the application of the discoverability rule to any other section of the RPLA).
When was the cause of action discoverable by a reasonably diligent person?
 What flows from this for the present case? The appellants argue that the cause of action was not discoverable by the person making the claim – the appellants – until such time as they conducted the survey, and not only discovered that the boat house was in fact located in front of their shoreline, but that the shallowness of the water was such that the boat house impeded their ability to navigate into the deep channel of the river. Accordingly, they argue, the action was brought well within the 10-year period.
 I do not agree. The problem is this. Section 4 refers to the time when the right of action first accrued “to some person through whom the person making it or bringing it claims.” Riparian rights run with the property, so an action for breach of such rights can “accrue” to the predecessor(s) in title at the time of the breach, and pass to a subsequent holder of title. The saliant question, then, is whether (and when) the breach of riparian rights was knowable by the appellants’ predecessors in title. If the limitation period had already expired and the cause of action been extinguished before the appellants purchased the property, the transfer of title to the appellants could not revive the extinguished cause of action.
 The trial judge made no finding in this regard. However, the infringement of riparian rights would, in this case, have been obvious to the appellants’ predecessors in title immediately upon the construction of the boat house. The presence of the boat house could hardly have been missed. Although the appellants argue that specialized knowledge of boating and the topography of the water would be required to determine that the boat house impaired access to the deep water channel from the shoreline, I do not agree. It is conceded that the depth of the very shallow water in front of the appellants’ cottage was obvious and easily ascertainable by an observer. From that concession, it is a very short walk to the conclusion that only boats capable of moving through very shallow water could dock near the shore. The presence of the boat house and dock would have prevented the construction of a similar boat house by the appellants’ predecessors in title, which would have substantially impaired their ability to access the deep channel.
 Accordingly, the infringement of the riparian rights of the appellants’ predecessors in title would had to have been obvious to those predecessors from the time the boat house was constructed in 1969 (or shortly thereafter, given the seasonal use of vacation property). In any event, once the predecessor’s right of action had been extinguished under s. 15, it could not be revived by transferring title.
 I note this result is consistent with the reasoning and conclusion in Mihaylov v. Long Beach Residents’ Association, 2018 ONSC 14, 95 R.P.R. (5th) 202, aff’d, 2018 ONCA 871, 95 R.P.R. (5th) 220, leave to appeal refused,  S.C.C.A. No. 527. In that case, Morgan J. found that the plaintiffs’ predecessors in title had ten years after the construction of a wharf and gravel landfill to make a claim for interference with riparian rights: at paras. 51-55. Although the trial judge distinguished Mihaylov on the basis that it was the interference with the riparian rights of the predecessors in title that started the limitations clock under s. 4, rather than the discovery of that interference, in my view those two dates would have been the same, much like in this case.
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
 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.
 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. 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.