Index

August 11, 2021

Discoverability for Limitation Periods


August 5 , 2021

Releases of Claims


June 7 , 2021

Language Used Still Matters


May 17 , 2021

Serving Uncooperative People


April 15 , 2021

Death and After-Life of Contingency Agreements


February 22 , 2021

Legal Analysis


February 2 , 2021

Costs Clarified at Last


January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

DISCOVERABILITY FOR LIMITATION PERIODS

Ordinary limitation periods for suing usually start to run once the reasonableness of suing is discoverable. (Ultimate limitations periods do not require that, but are much longer.) Discoverability is not required by all limitations legislation; the Legislature can set a starting date or test not involving discovery or discoverability, if it wishes. The question then is interpreting the legislation. But discoverability is needed unless the legislation indicates otherwise. Whether the Act speaks of “cause of action” or “claim” does not indicate anything different.

The Supreme Court of Canada has now clarified what “discoverable” means for these purposes. It is actual or constructive knowledge of the material facts letting the plaintiff draw a plausible inference of this defendant’s liability.

In the case in question, by the relevant date the plaintiff knew or ought to have known that it had suffered a significant loss, and that at least part of the cause of the loss was conduct which the plaintiff’s auditor had been hired to detect. That was enough for discoverability, and so the suit was out of time.

What does “ought to have known” mean? It includes material facts which the plaintiff should have learned by exercising reasonable diligence. But learning facts obtainable only by disclosure (discovery from the defendant) is not necessary.

What facts is it, which learning starts the time running? Those facts which found a plausible inference of liability by this defendant. Neither certainty nor perfect knowledge is needed. Mere suspicion or speculation is not enough, however.

What must the facts be about, i.e. what are the relevant topics of the real or constructive notice? Three things. First, some injury or loss to the plaintiff. (Knowing the exact extent or type of the harm is unnecessary.) Second, partial contribution, or full causation, by an act or omission. Third, that was by this defendant. The plaintiff must actually or constructively know all three.

The Supreme Court confirms that what must have been discoverable are material facts, not law. It is not necessary that the plaintiff know (or should have discovered) that the defendant owed a duty of care, nor that the defendant’s conduct fell below the right standard.

The decision is Grant Thornton v. New Brunswick 2021 SCC 31.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.