The decision in Loy-English v. Fournier requires some gentle criticism for its description of the limitations scheme:
[40] Before turning to the evidence, I will just mention that counsel for the intervenor provided me with a useful review and critique of much recent jurisprudence. I have not found it necessary to address the argument that there is a difference between the time when a cause of action accrues at common law and the day when a claim is discovered under the Act. I need not seek to resolve what counsel identifies as inconsistency in the jurisprudence and failure of courts to recognize the extent to which the Act has changed the common law.
[41] I will just observe that in the seminal decision of Peixiero v. Haberman, the Supreme Court of Canada endorsing the principle of discoverability in connection with Ontario’s motor vehicle regime uses language suggesting a cause of action under Ontario law only “accrues” when it is possible to determine that the injuries exceed the threshold.[18] In Lawless v. Anderson our Court of Appeal declared that “the principle of discoverability provides that a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence.” The court went on to define “cause of action” as “the fact or facts which give a person a right to judicial redress or relief against another.”[19] Arguably, the effect of the Act is to identify discoverability as a constituent component of a cause of action in Ontario but this is largely a question of semantics.
[42] The important point is the rationale underlying the discoverability principle. A limitation statute should not be construed to run before the plaintiff could reasonably know that she had a viable cause of action. It is this rationale that is codified in s. 5 of the Act. Whether the cause of action can be said to have arisen at an earlier date, knowledge that there is a cause of action and a legal proceeding is an appropriate avenue for relief is a component of discoverability. All four statutory components are necessary to trigger the running of the limitation period.
- It’s not arguable that the Limitations Act makes discoverability a constituent element of a cause of action, nor is the argument one of semantics. At common law, the discoverability rule relates to the accrual of a cause of action, not the elements of a cause of action. The rule provides that a cause of action accrues when the plaintiff discovers its material elements. Section 5 of Limitations Act contains a codified discoverability rule that applies to “claims”, a defined term, not causes of action. It also doesn’t make discoverability an element of a cause of action or “claim”, but determinative of when discovery occurs. This isn’t at all an issue of semantics. “Claims” and causes of action are not interchangeable, a point made recently by the Court of Appeal.
- It is not so that the Limitations Act prevents time from running before a plaintiff can reasonably know that she has a viable cause of action. Knowledge of the elements of a cause of action will not result in discovery of a “claim” under the Limitations Act. This is because the s. 5(1)(a)(iv) discovery matter—the appropriateness of a proceeding as a remedy—is not an element of any cause of action, and also because discovery requires knowledge of damage, and damage is not an element of any cause of action based on conduct that is actionable per se (like breach of contract).
