Justice Parfett’s decision in Fernandes v. Goveas is a textbook example of applying the modified objective test in a discovery analysis.
Section 5(1)(b) of the Limitations Act contains the test. This provision asks when a reasonable person (the objective component) with the abilities and in the circumstances of the claimant (the modifying subjective component) first ought to have known of the discovery criteria in section 5(1)(a).
The facts in Fernandes were unusually sordid. The plaintiff sued her sister for unpaid wages and damages for wrongful dismissal, leading Justice Parfett to observe “This case is a lesson in why family should not always be treated ‘like family’. The Plaintiff in this case was misled, overworked and underpaid by her family.”
This is how Justice Parfett applied the test:
[16] A reasonable person is defined at s. 5(1)(b) of the Limitations Act as someone ‘with the abilities and in the circumstances of the person with the claim’. In this case, that means someone who
- Was not born in Canada;
- Spoke only minimal English;
- Was living exclusively in the home of her employers and had little social interaction outside the family;
- Trusted her employers implicitly given they were family;
- Had a moderate education;
- Was diagnosed as autistic and noted as having problems with speech and social interactions.
[…]
[21] In my view […The Plaintiff’s] language, psychological and social limitations created a situation where the Plaintiff was unable to exercise due diligence in order to discover the state of her financial affairs until after she left the Defendant’s employ.
