In upholding the decision in Chelli-Greco v. Rizk, which we wrote about here, the Court of Appeal described when discovery of a claim occurs:
[3] Under s. 5 (1)(a) of the Act, a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an appropriate means to seek to remedy the claim. The date is determined on a fact-based analysis.
This statement of law is deceptively significant.
Since its decision in Lawless, the Court of Appeal has often described discovery in terms of the old common law test—discovery occurs when the plaintiff reasonably ought to have knowledge of the material facts of her cause of action. This is problematic because discovery under section 5 of the Limitations Act occurs not just when the claimant has knowledge of the material facts of the cause of action, but, pursuant to section 5(1)(a)(iv), when she knows that a proceeding is an appropriate remedy for her claim. Using the common law test to determine discovery necessarily removes the section 5(1)(a)(iv) criterion from the analysis. This is problematic, and I’ve written about it before.
The Court of Appeal’s explicit acknowledgement that discovery requires satisfaction of section 5(1)(a)(iv) is a departure from its jurisprudence that follows Lawless. This is the decision you should cite when describing discovery under the Limitations Act.
This is the Court’s analysis:
[4] The issue before the motion judge was when did the respondent know that a proceeding would be an appropriate means to seek a remedy. The motion judge accepted the respondent’s evidence that her decision to continue treatment with the appellant beyond September 21, 2011 was based on the appellant’s advice to her that “her failed bridge was not his fault and he would endeavour to repair and remediate the problem.” . Given this finding, we see no error in the motion judge’s conclusion that the respondent’s action was not discovered until after the treatment and the dentist-patient relationship had ended and that her action was not statute barred as a result. See Brown v. Baum, 2016 ONCA 325(CanLII), at para. 18.