The decision in Service Mold + Aerospace Inc. v. Khalaf is another good example of the court’s assessment of a plaintiff’s abilities and circumstances for a limitations analysis. The fact that the plaintiff had no background or education in bookkeeping, accounting, or finances informed the court’s analysis of when the plaintiff could reasonably discover a fraud committed by his bookkeeper.
It’s also a noteworthy decision for the dubious (and unsuccessful) position taken by the defendant:
[21] TD Bank acknowledges that the plaintiffs did not actually discover the fraud until early 2015 and relies on s. 5(1)(b). The position of TD Bank is as follows:
1. The plaintiffs ought to have discovered the claim at least by 2009 or 2010. TD Bank takes the position that bookkeeper fraud is a well-known risk and a prudent businessman would have measures in place to control it. Mr. Schuurman, in effect, turned a blind eye to the risk. TD Bank therefore invites me to dismiss the action.
To discover a claim, the plaintiff must know that the defendant has caused or contributed to his loss (and there is no “claim” as defined by the Limitations Act until loss occurs). Whether the plaintiff was blind or not to a risk that ultimately resulted in his loss, until the loss occurred, the claim was not discoverable. This position might support a contributory negligence argument, but it’s immaterial to a limitations defence.
