In Sharma v. Sandhu, the Divisional Court held that the common law discovery rule has no application to s. 57 of the Residential Tenancies Act:
[19] I am also not persuaded that the common law principle of discoverability has any application when considering s. 57 of the RTA.
[20] At para. 37 of Peixeiro v. Haberman 1997 CanLII 325 (SCC), [1997] 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.):
…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.
[21] 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.
